Published On: 8th September 2025
Authored By: Ridam Sharma
VIPS IPU
INTRODUCTION
In any constitutional democracy, governance is typically divided among three distinct organs — the Legislature, the Executive, and the Judiciary — each entrusted with specific and independent functions. Accordingly, the architecture of modern democracies rests upon two foundational doctrines: the Doctrine of Separation of Powers and the mechanism of Judicial Review. The former, most prominently articulated by Enlightenment thinker Montesquieu in his seminal work The Spirit of Laws (1748)[1], advocates for distinct spheres of authority to prevent the concentration of power and to safeguard individual liberty. The latter — judicial review — empowers courts to assess the constitutionality of legislative and executive actions, striking them down if they transgress established legal or constitutional boundaries.
This interplay between institutional autonomy and constitutional oversight forms the bedrock of constitutional governance. It ensures that no single organ exercises unchecked authority, while preserving a system of democratic accountability. [2]Yet, the relationship between judicial review and the doctrine of separation of powers introduces a central paradox of constitutional democracy: How can courts oversee co-equal branches without overstepping their own limits and becoming dominant themselves?
This tension manifests differently across jurisdictions. Countries such as India and Germany have adopted assertive judicial models, while nations like the United Kingdom and New Zealand uphold a more restrained, parliamentary supremacy-oriented approach. Each reflects distinct constitutional philosophies and political traditions. This article explores the theoretical foundations and practical manifestations of judicial review within the framework of separated powers. It examines the challenges and evolving jurisprudence that seek to balance institutional independence with constitutional accountability, offering insight into how democracies safeguard the principles of limited government, rights protection, and the democratic will—especially in times of increasing political polarization and institutional strain.
Conceptual Foundations of Constitutional Law
Doctrine of Separation of Powers
The separation of powers doctrine stands as one of the most enduring principles of modern governance, tracing its theoretical framework to Charles-Louis de Secondat, Baron de Montesquieu’s seminal work, The Spirit of Laws (1748). [3]Montesquieu envisioned a governmental structure where power is distributed among distinct branches to prevent tyranny through the concentration of authority. This foundational concept advocates for a tripartite division of governmental functions: the legislature creates laws, the executive implements them, and the judiciary interprets and applies them to specific cases. In Montesquieu’s words: “There is no liberty if the judiciary power be not separated from the legislative and executive.”[4] His vision was based on the governance system he observed in 18th-century England, albeit inaccurately idealized, as a model of institutional balance and restraint.[5]
Constitutional systems worldwide have adopted this principle with varying degrees of rigidity. The United States exemplifies a strict separation model, where each branch maintains substantial independence with formal barriers preventing overlap. [6]The Constitution explicitly vests legislative powers in Congress, executive authority in the President, and judicial functions in the Supreme Court and lower federal courts. [7]Conversely, parliamentary democracies like India and the United Kingdom operate under a more flexible approach. In these systems, significant integration exists between the legislative and executive branches, particularly through the cabinet system where ministers typically serve in Parliament while heading executive departments, creating a more fluid power relationship.[8]
Judicial Review
Judicial review represents the judiciary’s authority to examine the constitutionality of legislative enactments and executive actions, invalidating those that transgress constitutional boundaries.[9] This mechanism serves multiple critical purposes: it upholds constitutional supremacy, safeguards fundamental rights against majoritarian excesses, and maintains the delicate equilibrium of checks and balances essential to democratic governance.
The modern concept of judicial review finds its seminal expression in the 1803 United States Supreme Court decision Marbury v. Madison,[10] where Chief Justice John Marshall established the Court’s authority to declare acts of Congress unconstitutional. While this American model influenced global constitutional development, judicial review has evolved distinctively across jurisdictions. India embraced a robust form of judicial review, with courts actively scrutinizing amendments through the “basic structure” doctrine.[11] The United Kingdom, traditionally adhering to parliamentary sovereignty, has experienced a gradual shift through European integration and the Human Rights Act 1998, which empowered courts to review legislation against human rights standards while preserving Parliament’s ultimate authority to respond to judicial declarations of incompatibility.
Thus, while the doctrine of separation of powers provides the structural framework for governance, judicial review operates as the principal mechanism to ensure accountability and constitutional fidelity within that framework.
Judicial Review in India
Constitutional Framework
Judicial review in India derives its legitimacy from several explicit constitutional provisions that collectively establish a robust system of checks on legislative and executive power. Article 13 serves as the cornerstone, declaring that laws inconsistent with fundamental rights shall be void to the extent of such inconsistency, thereby empowering courts to invalidate unconstitutional legislation.[12] Article 32 elevates judicial review to a fundamental right itself, granting citizens direct access to the Supreme Court for enforcement of constitutional rights through various writs. [13]Complementing this, Article 226 extends similar writ jurisdiction to High Courts, creating a dual pathway for constitutional remedies. Article 136 further strengthens this framework by conferring upon the Supreme Court discretionary power to grant special leave to appeal from any judgment or decree, thereby enabling comprehensive judicial oversight throughout the legal system.
Typology of Judicial Review
The Indian judicial review system operates across three distinct domains. Legislative review scrutinizes laws enacted by Parliament and state legislatures against constitutional standards, particularly focusing on compliance with fundamental rights and federalism principles. Administrative review examines executive actions, policy decisions, and administrative orders to ensure they adhere to legal mandates and procedural fairness, serving as a crucial check on bureaucratic excess. Judicial review of court decisions allows higher courts to correct legal and constitutional errors in judgments from subordinate courts, ensuring uniformity and coherence in constitutional interpretation throughout the judicial hierarchy.
Landmark Jurisprudential Developments
The evolution of judicial review in India has been shaped by several landmark Supreme Court decisions. In Kesavananda Bharati v. State of Kerala (1973), the Court articulated the revolutionary “basic structure doctrine,” holding that Parliament’s amendment power does not extend to altering the Constitution’s essential features.[14] Minerva Mills v. Union of India (1980) further refined this principle by establishing that the balance between fundamental rights (Part III) and directive principles (Part IV) constitutes an essential feature of the Constitution that cannot be disturbed.[15] In I.R. Coelho v. State of Tamil Nadu (2007), the Court extended judicial review to laws placed in the Ninth Schedule, which had previously been immune from challenge, reinforcing constitutional supremacy. Maneka Gandhi v. Union of India (1978) marked a watershed moment in rights jurisprudence by expanding Article 21’s “right to life” beyond mere physical existence to encompass a dignified life with various unenumerated rights, significantly broadening the scope of judicial review over executive actions affecting personal liberty.[16]
Interaction with Separation of Powers
Tension vs Balance
The relationship between judicial review and the separation of powers in India exists in a state of dynamic tension. Courts frequently intervene in governance vacuums created by legislative inaction or executive failure, often leading to institutional friction. Such interventions are particularly evident when Parliament fails to legislate on urgent social issues or when the executive neglects its constitutional duties. The Supreme Court’s expansive environmental jurisprudence—developed through public interest litigations—has led to the establishment of regulatory frameworks concerning pollution and natural resource conservation, areas traditionally reserved for the executive.
See M.C. Mehta v. Union of India, AIR 1987 SC 1086; (1988) 1 SCC 471.[17]
However, India’s constitutional scheme reflects a flexible interpretation of separation of powers, recognizing that institutional interdependence is necessary to uphold constitutional values and protect fundamental rights. Rather than strict compartmentalisation, the doctrine permits judicial intervention where constitutional mandates are threatened.
Judicial Activism vs Judicial Restraint
The Indian judiciary’s transformation from early post-independence deference to a more assertive role has reignited debates about the fine line between necessary activism and judicial overreach. The landmark decision in Vishaka v. State of Rajasthan illustrates constructive judicial activism, wherein the Court laid down binding guidelines to address workplace sexual harassment in the absence of legislative action.
See Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
Similarly, in the M.C. Mehta line of cases, the Court formulated the “polluter pays” and “precautionary principle,” and directed structural changes such as converting Delhi’s public transport system to run on CNG.
See M.C. Mehta v. Union of India, (2002) 4 SCC 356.
While such interventions have earned praise for upholding rights and addressing pressing governance gaps, critics argue that the judiciary lacks both the technical expertise and democratic legitimacy to make policy decisions involving resource allocation and administrative discretion. Nonetheless, supporters contend that judicial intervention becomes imperative when the legislature and executive fail to uphold constitutional commitments, particularly concerning fundamental rights.
Checks and Balances
India’s constitutional architecture envisions judicial review as a core element of its checks and balances mechanism. The judiciary’s power to invalidate unconstitutional legislation or executive actions acts as a counterweight to potential majoritarianism and executive overreach.
See Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.
Yet, the Court has also articulated principles of judicial self-restraint to avoid undue encroachment on the functions of coordinate branches. These include:
Presumption of constitutionality, which grants legislative acts a prima facie legitimacy.
See State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453.
The political question doctrine, where courts decline to adjudicate matters deemed non-justiciable due to their inherently political nature.
See Rameshwar Prasad v. Union of India, (2006) 2 SCC 1.
Constitutional avoidance, encouraging courts to interpret statutes harmoniously with constitutional principles rather than invalidating them outright.
See R.M.D. Chamarbaugwala v. Union of India, AIR 1957 SC 628.
When applied judiciously, these principles ensure that judicial review fortifies, rather than disrupts, the doctrine of separation of powers by keeping all branches within their constitutional boundaries while upholding rights and accountability.
Comparative Perspective on Judicial Review
United States: Judicial Supremacy within Strict Separation
The United States operates under a system of strict separation of powers with robust judicial review. Established in Marbury v. Madison (1803), the Supreme Court asserted its power to invalidate unconstitutional legislation, declaring “it is emphatically the province and duty of the judicial department to say what the law is” (Marbury v. Madison, 5 U.S. 137, 1803). This created a model where courts function as the ultimate arbiters of constitutional meaning. As Alexander Bickel observed, this arrangement produces the “counter-majoritarian difficulty” where unelected judges can override majority will expressed through legislation (Bickel, “The Least Dangerous Branch,” 1962).[18]
United Kingdom: Parliamentary Sovereignty with Evolving Judicial Role
The United Kingdom traditionally adhered to parliamentary sovereignty, famously articulated by A.V. Dicey as Parliament’s right “to make or unmake any law whatever” with courts unable to invalidate primary legislation [19]This changed significantly with the Human Rights Act 1998, which empowers courts to issue “declarations of incompatibility” when legislation conflicts with European Convention rights, while preserving Parliament’s ultimate authority (R v. Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115).[20]
India: Constitutional Supremacy within Parliamentary Democracy
India combines parliamentary democracy with a written constitution and strong judicial review. The Supreme Court in Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461) established the “basic structure doctrine,” limiting Parliament’s amendment power. Justice K.K. Mathew described India’s approach as creating “a balance between the supremacy of the Constitution, the sovereignty of Parliament, and the independence of the judiciary” [21]
These different models demonstrate how constitutional arrangements significantly impact governance. While the American model emphasizes judicial independence, the British system prioritizes democratic accountability. India’s hybrid approach attempts to balance rights protection with democratic governance (Granville Austin, “Working a Democratic Constitution,” 1999).
Challenges and Criticism
Judicial Overreach
The judiciary has drawn criticism for crossing constitutional boundaries. In Arun Gopal v. Union of India (2017),[22] the Supreme Court banned firecracker sales in Delhi-NCR, prompting concerns of judicial interference in policy (Bhuwania, Courting the People, 2017). Similarly, the BCCI reorganization case raised questions about judicial competence in specialist domains (Parthasarathy, The Hindu, Jan. 14, 2017).
Lack of Accountability
India’s collegium system for judicial appointments lacks transparency and external checks. As Justice Chelameswar warned in the NJAC case, it functions with “absolute impunity” (Supreme Court Advocates-on-Record Ass’n v. Union of India, 2015). [23]Constitutional safeguards, though vital for independence, complicate accountability for non-impeachable misconduct.
Delay and Pendency
With over 4.5 million pending High Court cases and 70,000 in the Supreme Court (2021–22 report), delays undermine judicial efficiency and public trust.
Politicization Concerns
Post-retirement judicial appointments and controversies like “master of the roster” (Shanti Bhushan v. Union of India, 2018) [24]have fueled perceptions of political influence.
Constitutional Boundaries
Courts recognise limits on reviewing policy decisions, as in Asif Hameed v. State of J&K (1989)[25], where they deferred to executive discretion in policy matters.
Way Forward
- Clarity & Consistency:
Adopting structured tests like proportionality can guide judicial intervention (Chandra, 2020). - Institutional Dialogue:
Pre-legislative consultation models, as discussed by Hogg & Bushell (1997), can reduce conflict and litigation. - Balance & Restraint:
Judicial deference is crucial in technical matters, but vigilance must be maintained for rights protection (Navtej Singh Johar, 2018).[26] - Building Constitutional Competence:
Strengthening research capacity in the legislature and executive can reduce governance gaps that invite judicial intervention. - Constitutional Morality:
As Ambedkar noted, fidelity to constitutional values—not just text—is essential for democracy (CAD, Nov. 4, 1948).
Conclusion
Judicial review stands as a cornerstone of India’s constitutional architecture, serving as the guardian of fundamental rights and the arbiter of constitutional values. This examination reveals the distinctive Indian approach to judicial review—one that balances robust rights protection with democratic governance within a parliamentary system. From the watershed “basic structure doctrine” in Kesavananda Bharati to the expansive interpretation of Article 21 in Maneka Gandhi, the judiciary has evolved from initial deference to constitutional assertiveness when necessary to uphold constitutional promises.
Yet this evolution has created inherent tensions with separation of powers principles. As Justice Y.V. Chandrachud observed, “Democracy and constitutionalism are not opposing concepts; they are complementary to each other” (State of Bihar v. Bal Mukund Sah, 2000). The Indian experience demonstrates that constitutional supremacy requires not institutional competition but cooperative constitutionalism—where each branch respects the others’ legitimate domains while fulfilling its distinct constitutional mandate.
The path forward lies in what Pratap Bhanu Mehta terms “a judiciary that is both restrained and vigorous” (2007). This requires courts to exercise vigilance against rights violations while showing appropriate deference in technical policy domains. It demands a legislature that legislates proactively on social issues and an executive that implements constitutional values faithfully. Most importantly, it calls for institutional dialogue that transcends adversarial posturing.
In the final analysis, judicial review in India’s constitutional democracy serves not to establish judicial supremacy but to ensure that all branches operate within constitutional boundaries while collectively advancing the transformative vision of the Constitution. The democratic project of constitutional governance requires this delicate equilibrium—one that must be continuously recalibrated to meet emerging challenges while preserving India’s constitutional ethos.
Reference(s):
[1] MONTESQUIEU, THE SPIRIT OF LAWS (1748).
[2] ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES (5TH ED., ASPEN, 2015).
[3] CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF LAWS BK. XI, CH. 6 (ANNE M. COHLER ET AL. EDS. & TRANS., CAMBRIDGE UNIV. PRESS 1989) (1748).
[4] IBID.
[5] M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 76–78 (2d ed. Liberty Fund 1998)
[6] ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 3–5 (5th ed. 2015).
[7] U.S. CONST. arts. I–III.
[8] M.P. JAIN, INDIAN CONSTITUTIONAL LAW 147–49 (8th ed. LexisNexis 2018).
[9] AHARON BARAK, THE JUDGE IN A DEMOCRACY 75–78 (Princeton Univ. Press 2006).
[10] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
[11] Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India).
[12] INDIA CONST. art. 13.
[13] INDIA CONST. art. 32; see also Romesh Thappar v. State of Madras, AIR 1950 SC 124.
[14] Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India).
[15] Minerva Mills Ltd. v. Union of India, (1980) 3 S.C.C. 625 (India).
[16] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
[17] M.C. Mehta v. Union of India, (2002) 4 SCC 356.
[18] ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (Yale Univ. Press 1962).
[19] A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (10th ed. 1959) (orig. pub. 1885).
[20] R v. Sec’y of State for the Home Dep’t, ex parte Simms, [2000] 2 A.C. 115 (H.L.).
[21] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
[22] Arun Gopal v. Union of India, (2017) 1 SCC 412.
[23] Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1.
[24] Shanti Bhushan v. Union of India, (2018) 6 SCC 592.
[25] Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364.
[26] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
