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Legal Reasoning · Micro-Test

Judicial Review under the Indian Constitution

Judicial review is the Constitution's own safety valve against its violation - and CLAT wants to know whether you can tell Article 32 apart from Article 226 under pressure.

10 questions · 5 minutes · instant scoring

What this topic actually tests

Judicial review is the power of courts to examine the constitutionality of legislative enactments and executive action, and to declare them void if they are inconsistent with the Constitution. Article 13 anchors this power for fundamental rights: it declares that all laws in force before the commencement of the Constitution, to the extent they are inconsistent with Part III, are void to that extent, and that the State shall not make any law that takes away or abridges fundamental rights, with any such law being void to the extent of the contravention. The Supreme Court's writ jurisdiction under Article 32 is itself framed as a fundamental right - the right to move the Supreme Court for enforcement of the fundamental rights conferred by Part III, through writs including habeas corpus, mandamus, prohibition, certiorari, and quo warranto. Dr. B.R. Ambedkar famously described Article 32 as the heart and soul of the Constitution, since it guarantees a direct constitutional remedy rather than leaving enforcement to ordinary litigation alone. High Courts possess an even wider writ jurisdiction under Article 226, which empowers them to issue these same writs not only for the enforcement of fundamental rights but also 'for any other purpose' - meaning High Courts can grant relief for violations of ordinary legal rights as well, a scope broader than Article 32. Judicial review also extends to examining the constitutionality of executive and administrative action, not merely legislation, ensuring that state action conforms to constitutional limits. Importantly, judicial review itself has been held to be part of the Constitution's basic structure - in Minerva Mills v Union of India, an attempt to exclude judicial scrutiny of constitutional amendments was struck down, and in L. Chandra Kumar v Union of India, the Supreme Court held that the judicial review powers of the High Courts under Articles 226/227 and of the Supreme Court under Article 32 form an integral, essential feature of the basic structure, meaning this power cannot be entirely excluded even by a constitutional amendment vesting exclusive jurisdiction in tribunals. Courts, however, generally exercise restraint in reviewing the wisdom or policy merits of a law, confining review to questions of its legality and constitutionality.

The common trap on this topic

Students frequently treat Article 32 and Article 226 as having identical scope, when in fact Article 226 is broader - a High Court can grant relief 'for any other purpose' beyond fundamental rights, covering violations of ordinary legal or statutory rights, whereas Article 32 is confined strictly to the enforcement of fundamental rights under Part III. Another common trap is assuming judicial review applies only to legislation - in reality, it equally extends to executive and administrative action, and, through the basic structure doctrine, to constitutional amendments themselves. A third, more subtle trap is failing to distinguish judicial review of legality/constitutionality from review of policy wisdom - courts generally decline to substitute their own view of what is a wise or desirable policy for that of the legislature or executive, confining themselves to whether the law or action is within constitutional and legal limits, unless it is shown to be manifestly arbitrary or unconstitutional.

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Principle: Article 226 empowers a High Court to issue writs not only for the enforcement of fundamental rights but also 'for any other purpose,' meaning it can grant relief for violations of ordinary legal or statutory rights, a scope broader than Article 32, which is confined to enforcing fundamental rights. Facts: A government employee's claim rests entirely on an alleged violation of a specific service rule (a statutory right), with no fundamental right under Part III implicated at all. The employee wishes to seek a writ remedy.
Q1.

Can the employee approach the High Court under Article 226 for this purely statutory violation, even though no fundamental right is involved?

Principle: Article 32 itself guarantees the right to move the Supreme Court for enforcement of fundamental rights and is described as the heart and soul of the Constitution; it can be suspended only in the specific circumstances contemplated under Article 359 during a proclamation of emergency, subject to constitutional safeguards, and not otherwise. Facts: During a period when no proclamation of emergency under Article 359 is in force, a law is passed purporting to bar all citizens from approaching the Supreme Court under Article 32 for any purpose whatsoever.
Q2.

Is such an ordinary law valid?

Principle: The writ of habeas corpus is issued to produce a person who has been unlawfully detained before the court and to secure their release if the detention is found to lack legal justification. Facts: A person is taken into custody by the police without being produced before a magistrate within the legally mandated time and without any valid order of detention being shown to justify continued custody.
Q3.

Which writ would be most appropriate for the detained person's family to seek?

Principle: The writ of mandamus is issued to a public authority to compel the performance of a public or statutory duty that it has failed to perform. Facts: A statute clearly obligates a municipal corporation to process and decide building plan applications within a fixed statutory period. Despite the period lapsing and no legal impediment being shown, the corporation simply fails to act on a citizen's pending application.
Q4.

Which writ is most suited to compel the corporation to decide the application?

Principle: The writ of certiorari is issued to quash an order or decision of a lower court, tribunal, or quasi-judicial authority that has acted without or in excess of its jurisdiction, or in violation of principles of natural justice. Facts: A quasi-judicial tribunal, expressly empowered by statute to decide only disputes below a certain monetary value, nonetheless proceeds to decide and pass an order in a dispute far exceeding that statutory monetary limit, thereby acting beyond its jurisdiction.
Q5.

Which writ would be appropriate to challenge the tribunal's order?

Principle: The writ of quo warranto is issued to question the legal authority of a person to hold a public office, and can result in that person being ousted if they are found to be holding the office without proper legal title or qualification. Facts: A person is appointed to a statutory public office despite not fulfilling a mandatory eligibility qualification expressly prescribed by the governing statute for that office.
Q6.

Which writ would be most suited to challenge this appointment?

Principle: Under Article 13, any law, whether made before or after the commencement of the Constitution, that is inconsistent with or takes away or abridges the fundamental rights under Part III, is void to the extent of such inconsistency, and courts can strike down such laws through judicial review. Facts: A pre-independence law, still technically on the statute books, is found to directly discriminate against a class of citizens in a manner inconsistent with the fundamental right to equality under the Constitution.
Q7.

What is the constitutional consequence for this pre-constitutional law under Article 13?

Principle: In L. Chandra Kumar v Union of India, the Supreme Court held that the power of judicial review vested in the High Courts under Articles 226 and 227, and in the Supreme Court under Article 32, is part of the basic structure of the Constitution, and cannot be entirely excluded even by a law vesting exclusive jurisdiction in tribunals to the complete exclusion of High Courts. Facts: A statute creates a specialised tribunal and provides that the tribunal's decisions can never be challenged before any High Court under Article 226 or Article 227 under any circumstances, no matter how flawed the tribunal's decision.
Q8.

Is this complete exclusion of High Court jurisdiction over the tribunal's decisions constitutionally valid?

Principle: Courts exercising judicial review generally examine whether a law or executive action is within constitutional and legal limits, and refrain from substituting their own view of the wisdom, desirability, or economic merit of a policy choice made by the legislature or executive, unless the action is shown to be manifestly arbitrary or unconstitutional. Facts: A citizen challenges a government economic policy purely on the ground that, in the citizen's opinion, a different policy approach would have produced better economic outcomes, without alleging that the policy violates any specific constitutional provision or is manifestly arbitrary.
Q9.

Is a court likely to strike down the policy purely on this ground?

Principle: Judicial review under the Indian Constitution extends not only to legislative enactments but also to executive and administrative action, ensuring that such action remains within the bounds of law and the Constitution. Facts: A government department issues an administrative circular, without any specific statutory backing, that directly denies a category of citizens a benefit they are otherwise entitled to under an existing valid law, purely through this internal circular.
Q10.

Can this administrative circular be challenged through judicial review, even though it is not a piece of legislation?

FAQ

What is the main difference in scope between Article 32 and Article 226?

Article 32 allows the Supreme Court to issue writs specifically for the enforcement of fundamental rights, and is itself a fundamental right, whereas Article 226 allows High Courts to issue writs both for enforcing fundamental rights and for any other purpose, giving High Courts a wider writ jurisdiction than the Supreme Court under Article 32.

Can judicial review be completely excluded by a constitutional amendment?

No. Judicial review, particularly the writ jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32, has been held to be part of the basic structure of the Constitution, so it cannot be entirely ousted even by a constitutional amendment.

Does judicial review allow courts to strike down a law simply because judges think it is bad policy?

No, courts generally do not review the wisdom or merits of a policy choice made by the legislature or executive; judicial review is confined to examining whether the law or action is constitutional and legal, and courts exercise restraint regarding the underlying policy judgment itself.

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