UPSC Law Optional 2026 PYQ: Paper I Q1(b) – Judicial Review and the Basic Structure

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UPSC Law Optional PYQ 2026, Paper I Q1(b): does the Constitution survive without judicial review? Here's what the question tests and how to answer it in 150 words.

“If the power of judicial review of legislation and administrative actions is abrogated or taken away, the Constitution will cease to be what it is.” Critically evaluate.

UPSC CSE Mains 2026 · Law Optional Paper I · Section A · Q1(b) · 10 marks

Source: exam held 30 August 2026. Official paper (UPSC) | Full 2026 Paper I & II

What this question tests

The examiner wants to know whether you see judicial review as part of the Constitution's identity, not just a court procedure. The quoted line asks you to link judicial review to the basic structure doctrine. Because the directive is "critically evaluate", you must also show the limits of judicial review, not only praise it.

Syllabus unit

Paper I, Section A: Constitutional Law. It overlaps three areas:

judiciary and basic structure
fundamental rights (Articles 13 and 32)
administrative law (review of administrative action)

Judiciary and basic structure was one of the heaviest Section A areas in 2026. The 20-mark Q3(a) on Kesavananda and Golaknath also came from it.

How to approach a 10-mark "critically evaluate" answer

Intro (2–3 lines): define judicial review and name its constitutional sources.
Body, the "for" side: show how courts have treated judicial review as a basic feature. Use 3–4 landmark cases in time order, one line each on what was held.
Body, the "critical" side: limits such as judicial restraint, separation of powers, and the role of tribunals.
Conclusion (1–2 lines): a balanced view that answers the quote directly.

Keep to about 150 words. A short flow chart (Art 13 → Art 32/226 → basic structure) can save words.

Common mistakes

Writing only about Kesavananda and missing the later cases on judicial review itself.
Ignoring "administrative actions" in the question.
No critical side, so the answer becomes a one-sided essay.

Practice it now

Write your answer in 20 minutes, then post it (or a photo) in the comments below.

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Model answer

UPSC Law Optional Paper 1 | Question 1(b) | 10 Marks.

Answer: Judicial Review as a Basic Feature of the Constitution

1. Introduction : Judicial review is the power of the Supreme Court and the High Courts to examine the constitutional validity of legislative and executive action and to declare it ultra vires and void where it transgresses constitutional limits. Article 13(2) renders any law that takes away or abridges a fundamental right void to the extent of the contravention. Articles 32 and 226 confer writ jurisdiction to enforce those rights, and Article 227 vests the High Courts with power of superintendence over courts and tribunals. The statement is substantially correct, but the power operates within settled limits.

2. Constitutional Basis of the Power

India has a written and controlled Constitution which distributes power among the organs of the State and between the Union and the States. Each organ must act within its constitutional limits, and the question whether it has done so cannot be left to that organ itself. Under the distribution of legislative powers in Articles 245 and 246, the question whether a law is within legislative competence is a justiciable issue, and the Supreme Court is the final interpreter of the Constitution. The Supreme Court has described itself as the sentinel on the qui vive in relation to fundamental rights. If the power of review were taken away, Part III would remain a declaration of rights without a remedy, since Article 32 is itself a fundamental right. The Indian model was framed narrower than the American: the Constituent Assembly preferred "procedure established by law" to "due process", and A.K. Gopalan v. State of Madras declined to read due process into Article 21. Maneka Gandhi v. Union of India held that the procedure must be fair, just and reasonable, and so enlarged the scope of review over both legislative and administrative action.

3. Judicial Review as Part of the Basic Structure

In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, Parliament claimed an unlimited power under Article 368. The Court held that the power to amend does not include the power to alter or destroy the basic structure, since an amended Constitution must remain the same Constitution.

In Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, Article 329A(4) validated the Prime Minister's election and excluded it from judicial scrutiny. The Court struck down the clause. Parliament had decided an election dispute by its own fiat instead of leaving it to adjudication, and thereby destroyed free and fair elections, a basic feature.

In Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, the 42nd Amendment had inserted clause (4) in Article 368, barring any amendment from being called in question in any court, and clause (5), declaring the amending power unlimited. Both clauses were struck down. A limited amending power is a basic feature, and a limitation that no court may enforce ceases to be a limitation.

S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124, accepted tribunals as an effective alternative institutional mechanism to the High Courts. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, overruled it on that point. 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. Tribunals may supplement that jurisdiction, but they cannot supplant it, and their decisions remain subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls.

In I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, the Court held that laws placed in the Ninth Schedule after 24 April 1973 are open to challenge on the touchstone of the basic structure. Otherwise, by placing a law in the Ninth Schedule, Parliament could achieve indirectly what Minerva Mills forbids it to do directly.

4. Recent Developments (2024-2025)

In Madras Bar Association v. Union of India, 2025 INSC 1330 (19 November 2025), the Tribunals Reforms Act, 2021 re-enacted provisions that the Court had earlier struck down. Upholding the supremacy of the Constitution, the Court struck them down again for impairing the independence of the judiciary and the separation of powers.

In State of Tamil Nadu v. Governor of Tamil Nadu, 2025 INSC 481 (8 April 2025), the Court prescribed timelines under Article 200 and held that the Governor's inaction beyond those timelines is amenable to judicial review. In its opinion on Special Reference No. 1 of 2025 under Article 143, In re: Assent, Withholding or Reservation of Bills, 2025 INSC 1333 (20 November 2025), the Court held that the Governor's discharge of functions under Article 200 is not justiciable on merits and that courts cannot prescribe timelines. It held paragraphs 260 and 261 of the Tamil Nadu judgment, which laid down those timelines, to be erroneous, and rejected the concept of deemed assent. A limited writ of mandamus still lies in cases of prolonged, unexplained and indefinite inaction.

5. Critical Evaluation : Judicial Review, Not Judicial Supremacy

The power is not beyond criticism. Unelected Judges can set aside a law passed by an elected majority, and the concern is sharper when the judiciary decides a question about itself. In Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1, the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 were struck down and the collegium retained. The 2025 Reference, which disowned timelines set months earlier, also raises a concern of certainty.

Yet the Court has kept the power within bounds. Statutes are presumed constitutional, and courts test the legality of a policy, not its wisdom. Anjum Kadari v. Union of India, 2024 INSC 831, held that an ordinary statute cannot be struck down merely for violating the basic structure. Judicial review thus keeps the majority within the Constitution rather than displacing it. Its abrogation would change the identity of the Constitution, but its legitimacy rests on restraint.

6. Conclusion : Basic-structure review should stay confined to constitutional amendments, with deference to the legislature on policy. A transparent appointments process would answer the charge of self-interest. Parliament should respect decisions binding under Article 141 rather than re-enact invalidated provisions, and delay over assent to Bills is better settled by convention or amendment than by litigation.