Senior Supreme Court judge and collegium member Justice B.R. Gavai on Friday said the judiciary has the crucial role of reviewing government policies and “cannot sit with folded hands” when the executive fails to discharge its duties.

“The judiciary in India has repeatedly demonstrated that our constitutional courts cannot sit with folded hands when the executive fails to perform its duties.
One of the purposes of judicial review is to ensure that administrative actions and policy are consistent with the established principles and constitutional jurisprudence,” Justice Gavai told a gathering of jurists, legal experts and academics at the Harvard Kennedy School on “How Judicial Review Shapes Policy”.

Justice Gavai, who was part of the five-judge constitution bench that recently struck down the government’s controversial electoral bonds scheme, said the power of judicial review was based on the basic principle of the separation of powers, which is essential for any society governed by the rule of law.

“Every organ of the State has the power to act in its domain. The legislature makes laws and the executive creates policies, implements them and runs the administration. The judiciary applies, interprets and decides issues under a statute or the Constitution. The courts have to review and keep the actions of the different organs of the State, i.e., legislature and executive, in check and remove any inconsistency with the ideals and provisions of the Constitution,” Justice Gavai said.

“Every now and then, the government and its instrumentalities are making decisions affecting the rights of individuals in a large number of cases. Therefore, it is all the more crucial for all the administrative authorities to make a decision while acting judicially. This is because the court may go into the validity and constitutionality of decisions made by the executive.

“Judicial review not only defines constitutional limits and protects individual rights but also reflects rights, changing social dynamics and thus adopts new and emerging rights such as privacy, etc,” Justice Gavai, who will become the Chief Justice of India in May 2025, said.

Justice Gavai said the main objective behind the provision for judicial reviews was to have a mechanism for checks and balances so that there was no misuse of the power.

“In a nutshell, judicial review is an assurance of preserving and upholding constitutional values. Although India has a parliamentary form of government, assuming a high level of institutional functioning and competence, the framers of the Constitution adopted the feature of judicial review, inspired by the Constitution of the USA. The power of judicial review is embedded in the legal system of the USA,” he noted

He said policy changes needed to be in line with constitutional principles. The concept of judicial review has played a vital role in shaping policy through legal jurisprudence, he said. Over the years, the court had, through its interpretations, acted as a bridge between the legislature’s powers and the interests of the citizens.

“The court, under the exercise of judicial review, does not go on to make policy decisions on a routine basis. However, to keep the way for the Constitution to remain a living document, judicial review acts as a primary means to meet the needs of society through the court’s interpretational function,” Justice Gavai said.

He said every citizen had a right to challenge the constitutionality of a law that affected a person’s life, liberty and property.

Justice Gavai said there had been several landmark cases where the Supreme Court had struck down statutes and regulations found to be inconsistent with the Constitution.

Another way in which the courts have shaped policy changes is by filling the constitutional vacuum and legislative gaps, he said. The Supreme Court fills the gap by invoking Article 142 of the Constitution, which provides the court with the power to do “complete justice”, he added.

“More recently, in the case of the Association of Democratic Reforms vs Union of India, the Supreme Court struck down the electoral bond scheme on the ground that it violated the citizen’s right to information enshrined under the Indian Constitution,” Justice Gavai said.