The Power of Judicial Review : One Constitution Three Branches

Abstract

Judicial review and separation of powers form the bedrock of India’s constitutional jurisprudence, enshrining democratic governance and protecting fundamental rights. Article 13 bars legislative encroachment upon Part III rights.This article examines the dynamic interplay among branches, following historical development and institutional tension. Overlaps notwithstanding, checks and balances preclude the dominance of one branch, ensuring accountability and judicial independence.

Introduction

Judicial Review (Article 13)

Meaning of Judicial Review

Judicial Review gives courts the authority to test whether laws measure up to the Constitution; if courts decide a law exceeds constitutional limits, they may set it aside, leaving the law without effect. Laws that offend any constitutional guarantee, and that fall within a pattern of acceptable subject-matter under existing procedure rules, may thus be rendered non-operative. When a statute breaches rights laid out in the Constitution, it becomes subject to the courts’ scrutiny, and where contravention is established, the statute or offending segment may be invalidated and the non-compliant text omitted from the statute book.

Power of Judicial Review

Article 13   Laws that Contravene or Erode Fundamental Rights

Article 13(1)  makes all laws in India on the eve of the coming into effect of the Constitution void every time they are in conflict with the provisions of Part III (Fundamental Rights).

Article 13(2)  forbids the State from making laws that completely or partially abolish or restrict the basic rights provided by Part III of the Constitution.

Article 13(3)   Definitions of Law Enlarges the definition of the term “law” to include Ordinances, Orders, Bye-laws, Rules, Regulations, Notifications, and Custom or usage having the force of law.

Benefits of Judicial Review

1.Preserves Constitutional Supremacy The review keeps every statute and executive act anchored to the Constitution, the recognised beacon of the people’s basic will.

2. Mediates Inter-Governmental Conflicts The courts resolve jurisdictional or policy disagreements between the Centre and the states, promoting a coherent and cooperative system of federalism.[1]

Key Judicial Review Cases in India

1. Golaknath v. State of Punjab (1967) [2]

In this landmark decision, the Supreme Court declared that Parliament lacked the power to amend the Fundamental Rights enshrined in the Constitution. The judgment reaffirmed the sanctity of these rights, viewing them as inviolable. That perceived finality, however, was overshadowed when the language of the 24^th Amendment subsequently empowered Parliament to amend any provision of the Constitution, rights included.

2. Kesavananda Bharati v. State of Kerala (1973) [3]

The case consolidated the Basic Structure Doctrine, marking a milestone in the development of constitutional law. The Court weighed contending interests by providing Parliament with sweeping amending powers, but prohibited from altering the Constitution’s fundamental structure. Theories like the balance of power, representative government, and rule of law, the decision consolidated, rooted that structure.

3. Maneka Gandhi v. Union of India (1978) [4]

 The choice sensitive to contemporary realities, interpreted the protection of individual liberty under Article 21 to include the right to leave the nation. Placing liberty within a contextual situation, the Court took a liberal, purposive approach to rights, holding that law invading individuals has validity only when evidently fair, just, and reasonable, thereby refocusing constitutional spirit on the promise of substantive justice.

4. Vishaka v. State of Rajasthan (1997) [5]

Having no specific statute, the Supreme Court passed detailed norms to restrict sexual harassment at workplaces. It defined the abuse as a violation of women’s fundamental rights enshrined under Articles 14, 15, and 21, and required all employers to ensure a fear-free environment.[6] 

Separation of Powers

Introduction

Separation of powers separates state powers into three separate branches—the Legislature, the Executive, and the Judiciary—in order to avoid a single centre becoming monopolistic in power and to ensure transparency. The doctrine says that power isolated from restraint can readily fall prey to misuse.

Key Features

1. Operational Autonomy: Intrusion into core functions by one branch onto another is not allowed.
2. Complementary Cooperation: Coordination instead of confrontation is required to guarantee that mutual respect reigns in the constitutional framework.[7]

Three Branches of Government in India

Legislature Parliament (House of the People and the Council of States)makes laws, considers the conduct of the executive, and can amend laws and remove judges. At the state level, the same function is carried out by the state legislatures.

Executive The National executive is headed by The President and Prime Minister and by The governor and Chief Minister at the state level. Its role involves enforcing laws and daily governance.

Judiciary Supreme Court, High Courts, and subordinate courts. It interprets laws, resolves conflicts and ensures the government behaves in accordance with the Constitution by means of judicial review.

Constitutional provisions upholding separation of powers.

Article 50: Suggests to distinguish judiciary from the executive (directive principle non-enforceable).

Articles 53 & 154:

Let the Powers to be carried out by President and Governors.

Articles 121 & 211: Prevention of Parliament or Legislature from discussing behavior of any judge of higher judiciary anywhere other than in proceedings under Article 121/211 for removal of judge of higher judiciary.

Article 123: Gives the President the power to enact ordinances in periods when Parliament is out of session, empowering the executive to pass provisional laws.

Landmark Cases on Separation of Powers in India

1. Ram Jawaya Kapoor & Ors v. The State of Punjab(1955)[8]

The Court elucidated that although the Indian Constitution doesn’t have a strict separation of powers, it does designate specific functions to each branch. The executive cannot encroach upon the domain of the legislature or the judiciary, and the legislature cannot encroach upon the domain of the executive or the judiciary, etc., any making one independent on the other. This was a situation that emphasized functional segregation without requiring complete isolation.

2. Indira Nehru Gandhi vs.Raj Narain (1975)[9]

In this politically important case what the Supreme Court did hold inter alia is that determination of election disputes, particularly in relation to such high constitutional functionaries, like the Prime Minister is a judicial function. Such powers cannot be handed over to parliament which ultimately upholds the exclusive right of the judiciary in adjudication.

3. Swaran Singh Case (1998)[10]

The Court held that the Governor’s power of granting pardon should be exercised reasonably and in harmony with constitutional justice. There is no constitutional, legal or factual restriction on this power except political expediency: If a pardon is exercised arbitrarily or unjustly, it can be turned down. The executive’s discretion is to be even more under judicial review with a human face as established by this case[11]

Conclusion

India’s constitutional order is founded on the double pillars of judicial review and separation of power, both of which are essential for the survival of democracy as well as protection of individual rights. Article 13 vests the power of striking down statute which violates fundamental rights in the courts, thus making the Constitution the final measure of legality. This authority is not so much procedural but reflective of a deeper commitment to justice, especially for the citizens who lack the resources of being able to challenge even statutory measures. Judicial review has evolved through such milestone judgments like Golaknath, Kesavananda Bharati, and Maneka Gandhi, where the scope of rights has increased and the Basic Structure Doctrine has been engrafted. Such judgments secured the fundamental values of the Constitution such as liberty, equality, and rule of law cannot be denigrated even by an Act of Parliament.

Reference(S):

1. LawBhoomi, ‘Separation of Powers in India’ (LawBhoomi, 2025) https://lawbhoomi.com/separation-of-powers-in-india/ accessed 15 August 2025.
2. JJ College Ara, ‘Separation of Power in India’ (2025) https://jjcollegeara.co.in/e_notes_2025/e_learning_study_materials/separation%20of%20power%20in%20India%20.pdf accessed 15 August 2025.
3. British Institute of Human Rights, ‘Separation of Powers, Parliamentary Sovereignty and the Rule of Law’ (BIHR, 2025) https://www.bihr.org.uk/get-informed/legislation-explainers/separation-of-powers-parliamentary-sovereignty-the-rule-of-law accessed 15 August 2025.
4. NEXT IAS, ‘Judicial Review’ (NEXT IAS Blog, 2025) https://www.nextias.com/blog/judicial-review/ accessed 15 August 2025.
5. Century Law Firm, ‘Judicial Review in India’ (Century Law Firm Blog, 2025) https://www.centurylawfirm.in/blog/judicial-review-in-india/ accessed 15 August 2025
6. Golaknath v State of Punjab AIR 1967 SC 1643.
7. Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.
8. Maneka Gandhi v Union of India AIR 1978 SC 597.
9. Vishaka v State of Rajasthan AIR 1997 SC 3011.
10. Ram Jawaya Kapoor v State of Punjab AIR 1955 SC 549.
11. Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299.
12. Swaran Singh v State of Punjab (1998) 4 SCC 75.

[1] NEXT IAS, ‘Judicial Review’ (NEXT IAS Blog, 2025) https://www.nextias.com/blog/judicial-review/ accessed 15 August 2025.

[2] Golaknath v State of Punjab AIR 1967 SC 1643.

[3] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.

[4] Maneka Gandhi v Union of India AIR 1978 SC 597.

[5] Vishaka v State of Rajasthan AIR 1997 SC 3011.

[6] Century Law Firm, ‘Judicial Review in India’ (Century Law Firm Blog, 2025) https://www.centurylawfirm.in/blog/judicial-review-in-india/ accessed 15 August 2025

[7] JJ College Ara, ‘Separation of Power in India’ (2025) https://jjcollegeara.co.in/e_notes_2025/e_learning_study_materials/separation%20of%20power%20in%20India%20.pdf accessed 15 August 2025.

[8] Ram Jawaya Kapoor v State of Punjab AIR 1955 SC 549.

[9] Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299.

[10] Swaran Singh v State of Punjab (1998) 4 SCC 75.

[11] LawBhoomi, ‘Separation of Powers in India’ (LawBhoomi, 2025) https://lawbhoomi.com/separation-of-powers-in-india/ accessed 15 August 2025.