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Judicial Review refers to supervising the exercise of power by the judiciary of other government coordinating bodies with a view to ensuring that they remain within the limits set by the Constitution on their powers.
It is the court’s right to review legislative and executive decisions, and even review judicial acts. It is the power to scrutinize the validity of legislation, or any practice, whether or not it is legitimate.
Judicial review doctrine is based on the principle of rule of law and separation of powers. Judicial review is the process for testing and balancing the separation of powers.
The Theory of Judicial Review’s key purposes are as follows;
- to determine the unconstitutionality of Legislative Acts
- to maintain supremacy of the Constitutional Law
- to protect the Fundamental Rights
- to maintain federal equilibrium between Centre and the States
- to check arbitrariness, unjust harassing and unconstitutional laws
The Concept of Judicial Review is the basic principle of the Constitution in India. Although there is no explicit provision in the Indian Constitution for judicial review, it is an integral part of our Constitution.
In India, judicial power is a power given to the court to create a mechanism of regulation and balance between the legislature and the executive.
There are various provisions in the Indian Constitution explicitly laying down the power of judicial review to the courts, such as Articles 13, 32, 131-136, 141, 143, 226, 227, 245, 246 and 372.
The Supreme Court of India has declared it as Supreme Court’s and High Court’s power as a fundamental constitutional structure which cannot be taken away by a Constitutional amendment.
If any legislative act / executive order of either state government or central government is found to be in violation of the Constitution, it will be declared unconstitutional during the judicial review.
Evolution of the doctrine of judicial review:
The doctrine of Judicial Review was adapted by Indian from USA. In USA, initially there was no specific provision regarding the doctrine but in the historic case of Marbury vs. Madison 5 U.S. 137 , it was stated that, “Certainly all those who framed written constitutions contemplated them as forming the fundamental law of the nation and consequently the theory of every such government must be that an act of the legislature repugnant to the constitution is void… It is emphatically the province and duty of the judicial department to say what the law is”. In India, this doctrine was practiced even before the birth of constitution in the federal courts.
Before the establishment of the doctrine great writers also mentioned the need of such doctrine in the country. For instance, the writer Colonel K.N.Hasker and K.M. Pannikkar in their book named “Federal India” stated that “the supreme judicial authority should be invested with the power to declare ultra vires measures which go against constitution.”
In the article 13 of the Indian constitution, the law explicitly mentioned about the power of Judicial Review to be endowed to the high court and Supreme Court. Chief Justice Kania in the landmark case of A.K.Gopalan vs. State of Madras AIR 1950 SC 27, stated that “it was only through caution and care that the framers of our constitution added the specific provisions mentioned in Art 13. In a country like India, it is the constitution which is the most supreme and hence all statute laws should be in conformity with it and it should be for the interpreters to decide whether any law is constitutional or not”. The doctrine was further brought into confidence through several landmark cases which would be discussed in the article further.
Silent features of the doctrine:
There are certain set of characteristics carried by the doctrine. These characteristics/features can also be identified as a set of guidelines to be followed by the courts when exercising the doctrine.
1. The doctrine works for both central laws, state laws as well as orders.
2. The doctrine loses its exercise of powers on subjects mentioned in schedule 9 of the constitution.
3. Judicial review is for the question of law and not the issues relating to any politics.
4. The doctrine only works when the question of law is challenged in the court or during a hearing of a case the validity of law is questioned.
5. The court has the power to either hold the law is question to be completely invalid, completely valid or in some cases it might even held the part of it invalid.
6. The decision becomes applicable from the day the judgement is passed.
7. The courts should follow the principle of “procedure established by law”, i.e. while the interpretation of any law, the court must ask one question, whether the law in question has been made in accordance with the powers which are granted by the Constitution to the law-making body and follows the prescribed procedure or not? If the answer is no, then the court must prove it void.
8. The courts while giving the judgement must clearly mention that what law or provision does the “law is question” is violating.
After the A.K Gopalan case, in another case of L. Chandra vs. Union of India AIR 1997 SC 1125, the court gave certain facets to the Judicial Review and also claimed that while interpreting the legislation, it must be made sure that the law is in coherence with the constitution. This case emphasizing on the need of coherence.
In the case of Shankari Prasad vs. Union of India AIR 1951, SC 455, the amendment was challenged on the reason that it is violating the Part-III of the Indian constitution and hence, the amendment should be considered not valid. The Supreme Court claimed that the legislative organ, under Article 368, has the power to change any part of the constitution including the fundamental rights. Here the court used its power of Judicial Review.
Similarly in the case of Sajjan Singh vs. State of Rajasthan AIR 1965 SC 845 where the validity of the 17th Amendment Act of 1964 was in question, the court followed the provision laid in the Shankari Prasad vs. Union of India AIR 1951, SC 455, under article 368, the parliament has the power to amend the constitution.
But in case of Golakhnaath Vs. state of Punjab 1967 AIR 1643, 1967 SCR (2) 762), the courts changed its decision when, amendment in question in the case of Sajjan Singh vs. State of Rajasthan AIR 1965 SC 845 was again challenged. The court this time stated that under article 368 there is only the procedure to amend laid down but not the power for the parliament. Few points laid down were:
1. The power of parliament to amend the constitution is derived from Article 245 read with entry 97 of list 1st of the constitution and not from Article 368.
2. An Amendment is a law within the meaning of art 13 (3), including every kind of law, statutory as well as constitution law and hence a constitutional amendment which contravened Art 13 (3) will be declared void.
3. Fundamental rights were given a transcendental position under our constitution and are kept beyond the reach of parliament.
After the judgement of Golakhnath case, the parliament brought certain changes in the law. Which were:
4. Art 13 (4). “Nothing in this article shall apply to any amendment of this constitution made under article 368.”
5. Article 368. Procedure for amendment of the constitution was replaced by Power of parliament to amend the constitution and the procedure thereof.
With time the doctrine of Judicial review came more into application by the courts the deeper its roots were embedded in the law. In the case of Ramesh Thapper vs. State of Madras, AIR 1950 SC 124, the Supreme Court under its power of Judicial review struck down the Madras Maintenance of Public Safety Act 1949, on the fact that unless any certain law which is restricting freedom of speech and expression is pointed against eroding the security of the state or to topple it, any such law will not fall within the reservation of clause mentioned in Article 19(2) of the Indian Constitution.
In the year 1972, the honourable Supreme Court was summoned to check on the validity of the 24th, 25th and 29th Amendment in the Keshvananda Baharti’s case AIR 1973 SC 1461. The Supreme Court asserted its power of Judicial Review through the doctrine of basic structure. It was since then that the doctrine of basic feature became an inseparable power of the constitution.
In a very popular case of Minnerva Mills Ltd vs. Union of India AIR 1980 SC 1789, the Supreme Court struck down clauses (4) and (5) of Article 368 which was inserted through the 42nd Amendment of the year 1976, stating the ground that these certain clauses damage and do not follow the essential features of the basic structure of the constitution.
One could witness the power of basic structure in the constitution through the case of I.R. Coelho vs. State of Tamil Nadu AIR 2007 SC 8617, in which the Supreme Court affirmed that any certain law which is placed in the 9th schedule (subject after April 1974) will be open to challenge under the judicial review. The Court claimed that even though this act is under the 9th schedule of the constitutional Amendment yet its provisions would be open to challenge in case they damage the basic structure/feature of the constitution.
All these cases either broadened the feathers of the doctrine or bought certain limitations to it. Through these case one could witness that how with pace the doctrine was taking its place.
- Threat to Democracy
Undemocratic Judicial Review is the Democratic Constitution’s fundamental framework. The Judicial Review definition is against these basic values of Democracy. Bearing this debate in mind, S.P. Sathe believes that it is a dispute between democracy and judicial review. In addition, because the judicial review power is inherently counter-majoritarian, such a dispute is inherent in it. This authority gives the judges the right to investigate the laws of the popularly elected legislature and find out if they infringe any of the constitutional rights of the citizen. Unlike politicians, a judge is unaware of people’s concrete facts and needs. He approaches issues politically, to a greater extent, different from reality. Unlike representatives, a judge is not elected by people who diminish the sense of accountability in him.
- Constitutional Limits of Judicial Review
Judicial evaluation has its limits. The power is improperly used however; the Apex court has acknowledged its limits. In Tata Cellular v. Union of India, the Supreme Court held that the Court would practice the self-restraint and confine itself to the issue of lawfulness in exercising the power of judicial review. Its concern should be if a decision-making body exceeded its jurisdiction, committed an error of law, committed a violation of the laws of natural justice, and made a decision which no fair tribunal should have made or abused its power.
- Judicial Review and Separation of Power
In Article 245, the role of law-making is conferred on the Legislature and the task of securing the Constitutional Rights is conferred on the Judiciary under Article 13 and 32. The relevant question here will be whether the guidance given to the central government and the guidelines provided in Vishakha vs. Rajasthan state have the same enforceability as laws.
Judicial review basically means reviewing and striking down the legislation that violates the constitution’s basic structure. Article 141 of the Indian Constitution provides enforceability to supreme-court judgments and thus requires the judgment to be law. As the basic principle of the constitution is the division of power, here the question arises whether such a decision will be subject to constitutional scrutiny and may be considered to have been struck if it is found to be incompatible with the constitution.
In addition, we may see that the views shared by these thinkers are essentially about how to defend human rights. Waldron suggests that having individuals and governments committed to the advancement of human rights in society will be an effective, working democratic society. But in my own experience I would conclude that the ‘Constitutional Principle of Democracy’ proposed by Dworkin would be in the context of a parliamentary structure. I support this view, as I believe that every part, individuals and all that constitutes society should be treated equally, particularly individuals, in order for a democratic society to succeed.
Therefore, if we have organisations that operate that way, an organisation that is comprised of individuals concerned with enhancing rights, they will have to do so by treating all in society with equal regard and respect. In this way, both the majority and the minority will benefit from political decisions. Individuals in society are likely to accept the decisions made here; and this is because the wishes and preferences of individuals in society must be taken into account in one way or the other, because the decision-making body is one that deals with any little detail that affects society.
Authors: G Shashank Rao from Symbiosis Law School, Hyderabad and Divyanshi Saxena from University of Petroleum & Energy Studies.
Editor: Akshat Mehta from Institute of Law, Nirma University.