Every constitutional authority comes under judicial scrutiny
Every constitutional authority, howsoever high he or she remains, comes under the powers of judicial review of the constitutional courts.
The scope of judicial review may vary, but no power is beyond the purview of the courts, says the Supreme Court (SC) in The State of Tamil Nadu v The Governor of Tamil Nadu [2025 INSC 481].
SC reiterates in a catena of cases
The Courts may exercise restraint, but that is not to say that if the power has been exercised unconstitutionally, manifestly arbitrarily, in breach of fundamental rights enshrined in Part III or any other provision of the Constitution, or in a mala fide manner, the courts would be prohibited from striking down the exercise of such power.
This is what the SC says in S.R. Bommai v Union of India, Rameshwar Prasad v Union of India, Kihoto Holohan v Zachillhu & Others, and such other cases.
S R Bommai case established judicial review
It was in S.R. Bommai v Union of India, a nine-judge bench the SC examined the validity of Presidential proclamations under Article 356 and held that the President’s power under Article 356 is not absolute and can be challenged on grounds of illegality, malafide, extraneous considerations, abuse of power, or fraud and Article 356 is subject to judicial review.
Malafide actions of Governor can be put under judicial review
In the case Rameshwar Prasad v Union of India, a Five Judge Bench of the SC declared that in terms of Article 361 of the Constitution, the Governor enjoys complete immunity. The Governor is not answerable to any Court for exercise and performance of powers and duties of his office or for any act done or purporting to be done by him in the exercise of those powers and duties.
However, such immunity does not take away power of the Court to examine validity of the action including on the ground of mala fides.
The SC warned the need to choose right persons as Governors so as to maintain the sanctity of the post as the Head of the Executive of a State.
Judicial review possible in infringement of fundamental rights
The SC in Indra Sawhney v Union of India [AIR 1993 SC 477] held that the yardstick of subjecting an act or a decision to judicial review is not whether it is a legislative act or an executive decision on a policy matter but whether it violates any constitutional guarantee or the rights under Part III of the Constitution.
Powers of the President / Governor are amenable to judicial review
In B.P. Singhal v Union of India & Another [2010 (6) SCC 331], the SC categorically held that all powers that have been conferred upon the President and the Governor by the Constitution are not a matter of prerogative but a constitutional responsibility and its exercise, a matter of performance of an official duty of the highest sanctity, and thus, unquestionably amenable to judicial review.
Governor’s assent to bills would come under judicial review
No exercise of power under the Constitution is beyond the pale of judicial review. Thus, we find no reason to exclude the discharge of functions by the Governor or the President under Articles 200 and 201 of the Constitution respectively.
All powers except expressly excluded come under judicial review
The power of judicial review in a written constitution is implicit. Unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution.
The determining factor in deciding whether a power would be subject to judicial review is the subject-matter of such power and not its source.
Therefore, the SC says that the constitutional authorities occupying high offices must be guided by the values of the Constitution.
References
- The State of Tamil Nadu v The Governor of Tamil Nadu [2025 INSC 481]
- Indra Sawhney v Union of India [AIR 1993 SC 477]
- P. Singhal v Union of India & Another [2010 (6) SCC 331]
- R. Bommai v Union of India
- Rameshwar Prasad v Union of India
- Kihoto Holohan v Zachillhu & Others
