Judicial review is the conscience the legislature lends itself

In 1803, Chief Justice John Marshall of the United States Supreme Court ruled in Marbury v Madison that a court could strike down a statute repugnant to the Constitution. The case was small — a commission undelivered, a writ of mandamus refused — but the principle it announced reshaped modern republicanism for two centuries. India received the doctrine, refined it, and built it deeper into constitutional design than its American template. Article 13 declares void any law inconsistent with fundamental rights; Article 32, which Ambedkar called the ‘heart and soul’ of the Constitution during the Constituent Assembly debate of 9 December 1948, provides a direct remedy in the Supreme Court for the enforcement of those rights; Article 226 extends parallel and broader writ jurisdiction to High Courts. From Kesavananda Bharati (1973) to Maneka Gandhi (1978) to Puttaswamy (2017) to the Electoral Bonds verdict of 2024, judicial review has been the conscience the legislature lends itself — not a court acting against democracy, but democracy auditing itself through its highest tribunal in the name of the values it cannot itself remember to honour at every legislative session.

The architecture is dense and deliberate. Articles 13, 32, 131 (Union-State disputes), 132 (constitutional appeals), 136 (special leave), 142 (complete justice) and 226 (High Court writs) give the higher judiciary an interlocking set of powers — declaratory, advisory, supervisory, original and curative — that few other constitutions concentrate in a single judicial branch. The Basic Structure Doctrine, articulated by a thirteen-judge bench in Kesavananda Bharati v State of Kerala on 24 April 1973 by a 7-6 majority across a 700-page judgment, holds that Parliament’s power to amend the Constitution under Article 368 cannot extend to altering essential features such as federalism, secularism, the rule of law, judicial review itself, or the supremacy of the Constitution. The doctrine of substantive due process, imported through Maneka Gandhi v Union of India (1978) over earlier rejection in A K Gopalan (1950), enlarged Article 21 from a procedural shield into a substantive right reaching personal liberty, dignity and privacy. The doctrine of constitutional silences in the National Judicial Appointments Commission verdict of 16 October 2015 protected judicial primacy in appointments by reading what the Constitution had implicitly assumed.

The landmark exercises are catalogued in every law school syllabus. NALSA v Union of India (2014) recognised the third gender as a legal category and ordered horizontal reservation. Justice K S Puttaswamy v Union of India (2017), a unanimous nine-judge verdict, read informational privacy into Articles 14, 19 and 21, with deep implications for the Aadhaar architecture and the Digital Personal Data Protection Act 2023. Indian Young Lawyers Association v State of Kerala on 28 September 2018 opened Sabarimala to women of all ages. Navtej Singh Johar v Union of India on 6 September 2018 read down Section 377 of the Indian Penal Code to decriminalise consensual same-sex relationships. Joseph Shine v Union of India (2018) struck down the colonial offence of adultery. Association for Democratic Reforms v Union of India on 15 February 2024 struck down the Electoral Bonds Scheme as violative of voters’ right to information under Article 19(1)(a), and directed the State Bank of India to disclose donor identities within weeks. In Re Article 370 on 11 December 2023 upheld the constitutional manoeuvre while qualifying its boundaries. State of Punjab v Davinder Singh on 1 August 2024 permitted sub-classification within the Scheduled Caste quota. Each is a paragraph the legislature, on its own and acting through ordinary political incentives, had been unable or unwilling to write.

The doctrine has limits, and the limits are part of the doctrine itself. The Supreme Court recognises the doctrine of separation of powers; Indra Sawhney v Union of India (1992) imposed a 50 per cent ceiling on reservations that has been contested by several states since and is currently under reconsideration. The doctrine of political question keeps the courts away from foreign affairs and defence policy in most cases. Judicial restraint on economic and welfare policy has been the operating rule in commercial law since Bhanumati v State of UP (2010) and earlier. Above all, the operational reality of more than 5.16 crore pending cases on the National Judicial Data Grid in May 2025, including over 80,000 cases in the Supreme Court pending beyond five years, means that review delayed is, in many instances, review denied. Justice expedited is the deepest reform agenda the judiciary has not yet seriously addressed at the systemic level.

The strongest counter-view calls this judicial supremacism — unelected judges unmaking democratic choices made by elected legislatures. The Constitution (Ninety-Ninth Amendment) Act of 2014 setting up the NJAC and the parallel National Judicial Appointments Commission Act were a parliamentary attempt to reform judicial appointments after decades of complaints about collegium opacity, struck down a year later by the Supreme Court itself by a 4-1 majority on the ground that judicial primacy was a basic feature beyond parliamentary amending power. Collegium opacity remains a legitimate concern; the absence of seat-sharing disclosure, the irregular publication of recommendations and reasoning, and the executive’s tactical delays in notifying recommended judges have all eroded public confidence. The Memorandum of Procedure remains unrevised since 2017. Yet the alternative — a legislature that judges itself — failed catastrophically in pre-Independence India when colonial executive review proved hollow, and again during the Emergency of 1975-77 when a court briefly stopped lending its conscience in ADM Jabalpur and the country paid for the silence in lost liberties and lost faith.

A comparative footnote: the German Federal Constitutional Court, the Israeli Supreme Court, and the South African Constitutional Court all exercise robust review of legislative and executive action; each has been criticised at different moments for judicial overreach and praised at others for institutional courage. Judicial review in democracies is permanently in tension with majoritarian politics; the tension is a feature, not a bug.

Justice Mohammad Hidayatullah described the Indian judiciary as ‘the silent watchdog of liberty’. The watchdog has its imperfections, and many of them are visible — the collegium needs structural reform with transparent criteria; pendency needs the surgery of regional benches, mandatory case-management timelines and full vacancy-filling; the Supreme Court’s political-question doctrine needs honest application rather than selective deployment; the master-of-the-roster power needs constitutional clarification; the appointment of ad hoc judges under Article 224A needs operational rules. Yet the underlying structure has held for seventy-five years through emergencies, governments of every hue, supersessions and constitutional crises that have broken other post-colonial constitutions. Judicial review, mature and self-correcting, is not the judiciary acting against the legislature; it is the legislature’s own conscience speaking back in a robed voice across an oak-panelled courtroom. To weaken that lending arrangement is to weaken the legislature too, because a parliament that judges itself will not judge well for long. The conscience belongs to the republic, not to any one branch — and the republic deserves it operational, honest, prompt and unafraid.