Constitutional Basis of Judicial Review (Articles 13, 32, 131–136, 226)
Indian Polity › Judicial Review · Topic 18.2
Judicial review rests on Articles 13, 32, 131 to 136, 143, 226, 227, 245, 246, 251, 254 and 372; Article 31B’s Ninth Schedule protection is itself reviewable under the basic structure after 24 April 1973.
5 min read · UPSC Prelims · Polity · Judicial Review
At a Glance
- What it is The Articles that confer the power of judicial review
- Principal Articles 13, 32, 131 to 136, 226, 227
- Phrase Judicial review is not used anywhere in the Constitution
- Number listed Sixteen provisions
- Exam link UPSC Prelims, Polity: Judicial Review
Where Does It Fit?
This is the second topic of the category on Judicial Review. Though the phrase ‘judicial review’ has nowhere been used in the Constitution, the provisions of several Articles explicitly confer the power on the Supreme Court and the High Courts.
The Sixteen Provisions
| Article | Provision |
|---|---|
| 13 | Laws inconsistent with or in derogation of the Fundamental Rights are null and void |
| 32 | Right to move the Supreme Court for enforcement of Fundamental Rights; power to issue directions, orders or writs |
| 131 | Original jurisdiction of the Supreme Court in Centre-state and inter-state disputes |
| 132 | Appellate jurisdiction in constitutional cases |
| 133 | Appellate jurisdiction in civil cases |
| 134 | Appellate jurisdiction in criminal cases |
| 134A | Certificate for appeal to the Supreme Court from the High Courts (added by the 44th Amendment, 1978) |
| 135 | Jurisdiction and powers of the Federal Court under pre-constitution law |
| 136 | Special leave to appeal from any court or tribunal except military |
| 143 | Opinion of the Supreme Court on a presidential reference |
| 226 | High Courts can issue writs for Fundamental Rights and any other purpose |
| 227 | High Courts’ superintendence over all courts and tribunals in their territory except military |
| 245 | Territorial extent of laws by Parliament and state legislatures |
| 246 | Subject matter of laws: Union, State and Concurrent Lists |
| 251 and 254 | In a conflict between central and state law, the central law prevails and the state law is void |
| 372 | Continuance in force of pre-constitution laws |
How These Articles Work Together
Article 13 is the foundation: it defines law to include ordinances, orders, bye-laws, rules, regulations, notifications, customs and usages having the force of law, and declares void any law that takes away or abridges Fundamental Rights. Articles 32 and 226 give the remedy: citizens can approach the Supreme Court or the High Court directly. Articles 131 to 136 and 143 define the Supreme Court’s power as the final interpreter, federal umpire and highest court of appeal. Articles 245, 246, 251 and 254 supply the standards by which federal legislation is tested, so that a law made outside the competence of the Union or a state is open to challenge. Article 372 allows the pre-constitution laws to continue but they too must conform to the Constitution.
The 42nd Amendment Act of 1976 inserted Article 131A and Article 226A, which debarred the courts from considering the constitutional validity of central laws; the 43rd Amendment Act of 1977 restored the original position and these articles were repealed. This shows that Parliament has itself recognised the necessity of judicial review, and that attempts to curtail it have failed.
Who Exercises Judicial Review
| Court | Basis | Special features |
|---|---|---|
| Supreme Court | Articles 13, 32, 131-136, 143 | Final interpreter; can declare laws of Centre and states void; law declared binds all courts |
| High Courts | Articles 13, 226, 227 | Writs for Fundamental Rights and other purposes; challenge to laws on three grounds |
| Both | Basic structure doctrine | Cannot be taken away even by constitutional amendment (Chandra Kumar, 1997) |
Judicial Review of the Ninth Schedule
Article 31B saves the acts and regulations included in the Ninth Schedule from challenge for contravention of Fundamental Rights; Article 31B and the Ninth Schedule were added by the 1st Amendment Act of 1951. Originally the Schedule had 13 acts and regulations; at present the number is 282. In Kesavananda Bharati (1973) the Court held that Ninth Schedule laws are open to challenge on the ground of violation of the basic structure. In Waman Rao (1980) it clarified that laws included after 24 April 1973 are valid only if they do not damage the basic structure. In I.R. Coelho (2007) it ruled there is no blanket immunity: judicial review is a basic feature and laws placed in the Ninth Schedule after 24 April 1973 are open to challenge if they violate Articles 14, 15, 19 and 21 or the basic structure. The test is the direct impact and effect of the law, the ‘rights test’. Actions taken and transactions finalised under the impugned Acts are not open to challenge.
Why Is This Topic Important?
- Article list Matching articles to powers is asked
- Ninth Schedule Coelho test is a favourite
- Link to 18.1 Basis for scope
What Came Next?
The next topic compares judicial review with judicial activism.
Key People and Terms
- Article 13 Void laws inconsistent with rights
- Article 226 High court writs
- Article 31B Ninth Schedule protection
- Rights test Test of direct impact on rights
- Blanket immunity Complete protection from review
Exam Corner
Points to Remember
- Phrase not used but 16 provisions confer it.
- Article 13: void laws; 32/226: remedies.
- Ninth Schedule: Coelho (2007) no blanket immunity.
- 282 entries now; 13 originally.
Do Not Confuse With
- Article 32 and Article 226 Supreme Court versus High Courts
- Waman Rao and Coelho 1980 clarified; 2007 reaffirmed
- Article 31B and Ninth Schedule Protection removed by judicial review in part
Memory Hook
Thirteen voids, thirty-two and two-twenty-six remedy, the Ninth Schedule is not a shield.
Mains Angle
Questions on this topic usually ask how the Constitution secures judicial review. Use these points to add depth.
- Express textual basis Many Articles
- Federal umpire Articles 131 and 246
- Rights guardian Articles 13, 32, 226
- Ninth Schedule Basic structure test
A Question You May Face
An original practice question, not a past paper question.
“Which constitutional provisions confer the power of judicial review? Explain the review of the Ninth Schedule.”
How to Answer
- Introduction No phrase, many Articles.
- Provisions Group them.
- Ninth Schedule Kesavananda to Coelho.
- Conclusion Basic feature.
GS Relevance
Frequently Asked Questions
Which Articles confer the power of judicial review?
Articles 13, 32, 131 to 136, 143, 226, 227, 245, 246, 251, 254 and 372 are among the provisions that explicitly confer the power on the Supreme Court and High Courts, though the phrase judicial review itself is nowhere used.
What does Article 13 say about laws?
Article 13 declares that all laws inconsistent with or in derogation of the Fundamental Rights shall be null and void. It is the foundation of judicial review of legislation and applies to laws, ordinances, orders, rules and customs having the force of law.
Is the Ninth Schedule immune from judicial review?
No. In I.R. Coelho (2007) the Supreme Court held there is no blanket immunity. Laws included in the Ninth Schedule after 24 April 1973 are open to challenge if they violate Fundamental Rights under Articles 14, 15, 19 and 21 or the basic structure.
How many acts are in the Ninth Schedule?
The Ninth Schedule contained 13 acts and regulations when it was added by the 1st Amendment in 1951. At present the number is 282, including those added by later amendments such as the 34th, 39th, 40th, 66th and 78th.
Did Parliament ever try to curb the review of central laws?
Yes. The 42nd Amendment Act of 1976 inserted Articles 131A and 226A, which barred courts from considering the validity of central laws. The 43rd Amendment Act of 1977 restored the original position and these articles were repealed.
PYQ Practice — Statement Analysis
1 The Constitution uses the phrase judicial review in Article 13.
The phrase is not used.
2 Laws placed in the Ninth Schedule enjoy complete immunity.
Not blanket immunity after 1973.
3 Article 131 gives the Supreme Court original jurisdiction in Centre-state disputes.
A federal review.
4 Article 226 empowers the Supreme Court to issue writs.
The High Courts.
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