Discuss the efficacy of judicial review in India. (2015, 20 Marks)
Judicial review is the power of the higher courts to test legislative, executive and administrative action, and in India even constitutional amendments, against the Constitution, and to declare invalid what fails. It is distinct from judicial activism, which describes how expansively that power is used. The phrase appears nowhere in the text, yet review is among the most powerful anywhere; its efficacy is real but uneven.
Constitutional Basis
- Article 13 voids laws inconsistent with Fundamental Rights; Articles 32 and 226 supply the writs; Articles 131–136 give original, appellate and special-leave jurisdiction; Article 143 the advisory route; Articles 245–246 the federal division that courts police.
- Review of amendments was denied in Shankari Prasad (1951) and asserted in Kesavananda Bharati (1973) through the basic structure doctrine, a judge-made standard that widened judicial discretion. Minerva Mills (1980) and L. Chandra Kumar (1997) made review itself a basic feature.
Where It Has Worked
- Constitutionalism under strain: Indira Nehru Gandhi v. Raj Narain (1975), Minerva Mills and the NJAC case (2015) show that no majority can amend the Constitution without limit.
- Rights: Maneka Gandhi (1978) turned Article 21 into a source of substantive rights; K. S. Puttaswamy (2017) recognised privacy; Shreya Singhal (2015) and Navtej Singh Johar (2018) struck down Section 66A and read down Section 377.
- Federalism: S. R. Bommai (1994) made Article 356 proclamations reviewable, sharply reducing their use.
- Electoral integrity: candidate-disclosure rulings (2002–03) and Association for Democratic Reforms v. Union of India (15 February 2024), striking down electoral bonds for violating the voter’s right to information under Article 19(1)(a).
- Access: public interest litigation, Upendra Baxi‘s social action litigation, opened the Court to those who could never have reached it.
Where It Has Fallen Short
- Capitulation: ADM Jabalpur (1976) upheld suspension of habeas corpus during the Emergency, proving review is not self-executing; Puttaswamy overruled it.
- Delay: pendency stood at 94,639 cases at the end of August 2026, with 29 Constitution Bench matters pending. The electoral bonds challenge, filed in 2017, was decided only in 2024, after over ₹16,000 crore in bonds had been sold; the CAA challenge has been pending since 2019.
- Judicial evasion: Gautam Bhatia argues the Court has behaved as an “executive court”, deferring through adjournment and sealed covers rather than open doctrine, so that non-decision becomes decision.
- Contested reach: State of Tamil Nadu v. Governor (April 2025) fixed timelines for assent, but the Presidential Reference opinion of 20 November 2025 held that courts cannot prescribe timelines and that deemed assent is unconstitutional.
- Enforcement: structural orders such as Prakash Singh (2006) on police reform remain largely unimplemented.
- Legitimacy: Pratap Bhanu Mehta‘s “The Rise of Judicial Sovereignty” (2007) warns of a court whose authority rests on the judges rather than on principle; Alexander Bickel‘s counter-majoritarian difficulty sharpens when a self-selecting judiciary overrides a near-unanimous Parliament, as over the NJAC. Supporters of the bonds scheme saw that verdict as intrusion into policy.
Assessment
Efficacy tracks political context: the Court expanded most in the coalition years (1989–2014), when a fragmented Parliament left it space, and critics see more deference since. It is most effective as a structural check at moments of constitutional crisis, least effective in routine rights protection, where delay and selective deference decide outcomes. Sharing in governance without bearing responsibility for it is both its strength and its exposure.
Conclusion
Judicial review has preserved the Constitution’s identity against its own amending majorities, which is its decisive achievement. For the citizen, efficacy depends less on doctrine than on timeliness: review that arrives after the harm protects the Constitution better than the individual.