Judicial Review and Parliamentary Sovereignty: Constitutional Balance in Indian Democracy for RAS Prelims

The relationship between judicial review and parliamentary sovereignty in the Indian Constitution represents one of the most fundamental tensions in constitutional law. For RAS Prelims aspirants, understanding this constitutional balance is essential—it bridges separation of powers doctrine with the doctrine of parliamentary supremacy, and directly connects to Articles 32, 226, and the judicial review framework you must master.

This article provides an exhaustive, exam-focused analysis of how Indian courts balance judicial intervention with respect for elected legislatures, backed by landmark Supreme Court judgments, official constitutional provisions, and practical exam questions.

Understanding Judicial Review in the Indian Constitutional Framework

What is Judicial Review?

Judicial review is the power of courts to examine the constitutionality of laws, executive actions, and administrative decisions. In India, this power flows from Articles 32 and 226 of the Constitution, which grant the Supreme Court and High Courts authority to issue writs for enforcement of fundamental rights.

Unlike parliamentary sovereignty in Westminster systems (UK), India's judicial review and parliamentary sovereignty coexist through constitutional supremacy. The Indian Constitution—not Parliament—is the supreme law. Article 13 explicitly states that all laws inconsistent with Part III (Fundamental Rights) shall be void to the extent of inconsistency.

Key Constitutional Provisions:

Article 13: State shall not make any law abridging fundamental rights
Article 32: Constitutional remedy for enforcement of fundamental rights
Article 226: High Court's writ jurisdiction
Article 245: Parliament's legislative competence
Article 368: Amendment procedure with constitutional limits (implied limitations doctrine)

[SOURCE: Constitution of India, 1950]

The Doctrine of Supremacy of the Constitution

India adopted a written, rigid Constitution modeled on the US but with parliamentary features. This creates a dual hierarchy:

Constitutional provisions (supreme)
Parliamentary legislation (subordinate—must conform to Constitution)

This is fundamentally different from British parliamentary sovereignty, where Parliament is supreme. In India, judicial review and parliamentary sovereignty are constitutionally balanced through the courts' power to strike down unconstitutional laws.

Parliamentary Sovereignty in the Indian Constitution

Limited, Not Absolute Sovereignty

Indian Parliament possesses vast legislative powers under Articles 245-255, but these powers are not absolute. Parliament cannot:

Abridge fundamental rights (Article 13)
Alter the basic structure of the Constitution (Basic Structure Doctrine)
Exercise powers beyond its enumerated jurisdiction
Violate the Constitution through legislation

The Basic Structure Doctrine: A Watershed Moment

The landmark case Kesavananda Bharati v. State of Kerala (1973) established that Parliament cannot amend the basic structure of the Constitution, even through constitutional amendments (under Article 368).

Key Holdings:

Parliament's amending power is limited
Basic structure includes: supremacy of Constitution, rule of law, separation of powers, federalism, secularism, democratic governance
This doctrine demonstrates how judicial review and parliamentary sovereignty reach constitutional equilibrium

[SOURCE: AIR 1973 SC 1461; Kesavananda Bharati v. State of Kerala]

Subsequently affirmed in:

Indra Sawhney v. Union of India (1992) – 50% creamy layer reservation limit
S.R. Bommai v. Union of India (1994) – Secularism as basic structure
National Federation of Indian Railwaymen v. Union of India (2008) – Right to strike as essential right
Navtej Singh Johar v. Union of India (2018) – Decriminalized Section 377

Judicial Review Powers: Scope and Limitations

Types of Judicial Review in India

Type	Scope	Court	Constitutional Basis
Constitutional Review	Challenge laws as unconstitutional	Supreme Court / HC	Articles 32, 226, 245
Administrative Review	Challenge executive/administrative action	HC / SC	Articles 226, 32
Procedural Review	Examine procedural compliance	SC / HC	Natural justice principles
Substantive Review	Test reasonableness of laws	SC / HC	Article 14 (equality), proportionality

Grounds for Judicial Review

1. Ultra Vires (Beyond Powers)

Parliament acts outside constitutional authority
Example: Law violating territorial jurisdiction (Articles 245-255)

2. Violation of Fundamental Rights

Laws or actions infringing Part III rights
Article 13 invalidates such laws
Example: Romesh Thapar v. State of Madras (1950) – Press freedom

3. Violation of Procedure Established by Law

Procedure must be prescribed by valid law
Example: Maneka Gandhi v. Union of India (1978) – Procedure must be fair and reasonable

4. Unreasonableness and Disproportionality

Law must have rational nexus to stated objective
Example: Rajendra Garlic Processors v. State of UP (1960) – Tax must be reasonable

5. Discrimination (Article 14)

Arbitrary classification violates equality
Example: E.P. Royappa v. State of Tamil Nadu (1974) – Arbitrary state action violates equality

Landmark Judgments Defining the Judicial Review–Parliamentary Sovereignty Balance

1. Kesavananda Bharati v. State of Kerala (1973)

Case Details: Challenge to 24th Amendment, which sought to curtail fundamental rights by inserting new Article 31C.

Holding: Parliament cannot amend basic structure of Constitution. Judicial review and parliamentary sovereignty find their constitutional limit here.

Exam Relevance: This is THE foundational case for understanding constitutional supremacy over parliamentary power. RAS 2025-26 will expect knowledge of this.

2. Minerva Mills v. Union of India (1980)

Case Details: Challenge to 42nd Amendment (Emergency Amendment), which added Article 31C(2) to exclude laws from review if they implement Directive Principles.

Holding:

Even amendments to Constitution must respect basic structure
Article 368 is not absolute
Judicial review powers cannot be nullified by constitutional amendment

Critical Principle: Parliament cannot use Article 368 to destroy judicial review itself.

3. Indra Sawhney v. Union of India (1992) – Mandal Commission Case

Case Details: Challenged 27% OBC reservation in civil services.

Holding:

50% reservation ceiling is part of basic structure (equality)
Creamy layer exclusion mandatory
Courts can review reservation policy substantively

Demonstrates: Judicial review and parliamentary sovereignty balance—Parliament's policy power exists, but courts ensure constitutional compliance.

4. Sukhdev Singh v. Govt. of Punjab (1975)

Case Details: Challenge to state action affecting contractual rights.

Holding: "State" under Article 12 includes any instrumentality of government. Judicial review extends to all state action.

Extension: Judicial review is not limited to striking down laws; it covers executive action too.

5. Navtej Singh Johar v. Union of India (2018)

Case Details: Partial decriminalization of Section 377 IPC (consensual adult sexuality).

Holding: Despite Parliament enacting Section 377, courts applied Constitution (Articles 14, 15, 21) to limit its scope.

Significance: Shows contemporary judicial review checking parliamentary legislation through constitutional interpretation.

The Constitutional Balance: How Judicial Review and Parliamentary Sovereignty Coexist

The Doctrine of Constitutional Supremacy

The Indian system operates on three principles:

1. Parliamentary Legislative Competence

Parliament has wide powers under Articles 245-255
Subjects listed in Union/Concurrent List
Procedure for legislation is Parliament's domain

2. Constitutional Supremacy

Constitution is supreme, not Parliament
All laws must conform to constitutional framework
Article 13 creates this hierarchy

3. Judicial Review as Guardian

Courts enforce constitutional limits
Not substituting judgment on policy
Confining review to constitutional validity

What Judges CANNOT Do (Limits on Judicial Review)

1. Policy Decisions

Courts cannot substitute their policy judgment for Parliament's
Example: Budharaj v. State of Orissa (1997) – Court cannot override legitimate policy choice

2. Political Questions

Electoral disputes, treaty-making, national security discretion
Example: Presidential pardoning power, declaration of emergency

3. Purely Contractual Matters

Between private parties (unless fundamental rights implicated)

4. Matters Outside Constitutional Scope

Courts cannot read rights not in Constitution
Must use constitutional text as basis

Comparative Analysis: Judicial Review Across Constitutional Systems

Aspect	India	USA	UK	Australia
Judicial Review Power	Yes, explicit (Articles 32, 226)	Yes, implied (Marbury v. Madison 1803)	Limited (after 1998 Act)	Yes, limited
Parliamentary Supremacy	No—Constitutional supremacy	No—Constitution supreme	Yes (until 1998)	No—Constitutional limits
Can Overturn Constitutional Amendment?	Yes—Basic Structure Doctrine	No	No	Limited
Grounds for Review	Constitutionality, natural justice, proportionality	Constitutionality (narrow review)	Legality, procedural fairness (expanded)	Constitutional validity
Strongest in RAS Syllabus	India—most important for exam	Comparative reference	Historical contrast	Not typically tested

Judicial Review in Practice: Recent Applications (2023-2025)

Telecom Regulatory Authority (TRAI) Regulations

Courts have reviewed regulatory frameworks, balancing executive expertise with constitutional rights—demonstrating how judicial review and parliamentary sovereignty work in administrative law contexts.

Electoral Processes

Election Commission decisions subject to judicial review (Articles 32, 226), but courts respect electoral expertise within constitutional bounds.

Fundamental Rights Cases

Right to Privacy (Justice K.S. Puttaswamy v. Union of India, 2017) – Interpreted unenumerated right through Article 21
Shows judicial review extending constitutional protections beyond explicit text

RAS Prelims Exam Strategy: How This Topic Appears

Expected Question Types

1. Conceptual Questions "Which doctrine limits Parliament's amending power?" Answer: Basic Structure Doctrine (Kesavananda Bharati)

2. Case-Based Questions "In which case did SC establish that Constitution has unamendable features?" Answer: Kesavananda Bharati v. State of Kerala (1973)

3. Comparative Questions "How does Indian parliamentary sovereignty differ from British?" Answer: India—Constitutional supremacy; UK—Parliamentary sovereignty

4. Application-Based Questions "Can Parliament enact a law abolishing fundamental rights through constitutional amendment?" Answer: No—violates basic structure

Weight in RAS 2025-26 Syllabus

Polity Topic Weightage: 15-20% of RAS Prelims
Judicial Review: Part of core governance structure (estimated 2-3 questions)
Constitutional Provisions: Recurring every year
Related Topics: Articles 32/226 (5+ questions), Writ Jurisdiction (2-3 questions)

[INTERNAL: Constitutional remedies articles 32 226 RAS] [INTERNAL: Public Interest Litigation PIL Indian courts] [INTERNAL: Fundamental Rights Part III Indian Constitution]

Frequently Asked Questions

Q: What is the difference between judicial review and judicial scrutiny in India?

A: Judicial review is the power to invalidate laws/actions as unconstitutional (Articles 32, 226). Judicial scrutiny is the degree of examination courts apply—strict scrutiny (fundamental rights), rational basis review (economic laws), or intermediate scrutiny (classification cases). All judicial review involves some level of scrutiny, but not all scrutiny results in striking down laws.

Q: Can Parliament override judicial review decisions by constitutional amendment?

A: Partially. Parliament can amend the Constitution under Article 368, but only if the amendment doesn't violate the basic structure (Kesavananda Bharati doctrine). If a judgment protects a basic feature (rule of law, equality, democracy), Parliament cannot amend it away. However, if a judgment interprets a non-basic provision, Parliament can amend that provision.

Example: Parliament amended Article 368 to restrict judicial review (42nd Amendment), but Supreme Court struck down the most egregious provisions in Minerva Mills (1980) because they threatened the basic structure of limited amendment power.

Q: Is judicial review a check on parliamentary sovereignty or a support for it?

A: Judicial review is a constitutionalization of parliamentary power, not a check against it. It ensures Parliament operates within constitutional bounds. In India's system, true sovereignty lies with the Constitution itself. Parliament is sovereign within constitutional limits, and judicial review enforces those limits—this is what the Constitution requires, not a judicial overreach.

Practice Questions

1. Which Supreme Court judgment established that Parliament cannot amend the basic structure of the Constitution?

a) Marbury v. Madison (1803)
b) Kesavananda Bharati v. State of Kerala (1973)
c) Indra Sawhney v. Union of India (1992)
d) Navtej Singh Johar v. Union of India (2018)

Answer: b) Kesavananda Bharati v. State of Kerala (1973)

Explanation: This landmark 1973 judgment established the doctrine that while Parliament has vast amending power under Article 368, it cannot amend the basic structure of the Constitution. This case is foundational to understanding how judicial review and parliamentary sovereignty balance in India. The other options are either non-Indian cases or dealt with different constitutional issues (reservations, decriminalization).

2. Under Article 13 of the Indian Constitution, which of the following is TRUE regarding parliamentary legislation?

a) All laws passed by Parliament are constitutional by definition
b) Parliament can amend fundamental rights through legislation
c) Laws inconsistent with fundamental rights are void to the extent of inconsistency
d) Courts cannot review laws passed after the Constitution came into force

Answer: c) Laws inconsistent with fundamental rights are void to the extent of inconsistency

Explanation: Article 13(2) explicitly states that the State shall not make any law which takes away or abridges fundamental rights, and any law in violation is void to that extent. This is the constitutional basis for judicial review of parliamentary legislation. Options (a) and (b) misrepresent constitutional supremacy, and (d) contradicts Article 32's writ jurisdiction.

3. Which of the following is NOT part of the basic structure of the Constitution as per the Basic Structure Doctrine?

a) Rule of law and separation of powers
b) Federal structure and secularism
c) Specific tax rates and revenue allocation
d) Democratic governance and judicial review

Answer: c) Specific tax rates and revenue allocation

Explanation: The basic structure includes constitutional features like rule of law, secularism, federalism, democracy, and judicial review power. However, policy details like specific tax rates, budget allocations, or revenue distribution are matters of parliamentary policy, not constitutional structure. Courts cannot intervene in these policy choices. This demonstrates the boundary of judicial review and parliamentary sovereignty—courts protect constitutional structure, not policy details.

Key Takeaways

Judicial review in India flows from constitutional supremacy (Articles 32, 226, 13), not from an independent judicial claim of power—the Constitution itself grants courts this authority, making it a constitutional feature, not a judicial overreach.
Parliamentary sovereignty in India is limited by constitutional framework—unlike UK, Indian Parliament cannot pass laws violating fundamental rights or the basic structure; the Constitution, not Parliament, is supreme.
Kesavananda Bharati (1973) established the basic structure doctrine, preventing constitutional amendments that destroy essential constitutional features (rule of law, democracy, federalism, equality, judicial review itself).
Judicial review extends beyond striking down laws to examining executive action, administrative decisions, and even the constitutionality of constitutional amendments—it is the primary mechanism for constitutional enforcement in the Indian system.
The balance between judicial review and parliamentary sovereignty is designed deliberately—Parliament legislates within constitutional bounds, courts enforce constitutional boundaries, and constitutional supremacy prevails over both, creating a system of checks while respecting democratic legitimacy.

Last Updated

May 2024 | Verified for 2025-26 RAS exam cycle