|VOLUME 2|SPECIAL ISSUE|SEPTEMBER 2018|ISSN: 2581-3595|​

JUDICIAL REVIEW IN INDIA

AUTHORED BY: MS. AVNI KRITIKA (B.A.LL.B (HONS)), AMITY UNIVERSITY, LUCKNOW.

ABSTRACT:

Indian judiciary plays a very important role in protecting the Constitution of India. It paralyses the harm done by the both the legislature and the executive and guards the Fundamental Rights as well as the Directive Principles of State policy that are guaranteed by the Constitution to the citizens. All these are done by the special power of the judiciary and that is the judicial review. The aim of the article is to provide all the areas where the extent of judicial review is used with the help of the cases. The researcher in this article has tried to include all the important cases related to the evolution of judicial review in India and has given every aspect of judicial review.

KEYWORDS: Cases, Constitution, Judicial review, High Court, Supreme Court.

JUDICIAL REVIEW IN INDIA:

The judicial review is the most important feature of the Indian Judiciary. It is there, to protect the rights and liberties’ of the individual. The principle that governs judicial review is the ‘procedures established by law’. It is the power of the Supreme Court and High Court to review the constitutionality of the Acts passed by the Parliament and the State Legislatures; thus reviewing both the Centre and the State laws. As both of the courts have the power of Judicial Review but the final decision is in the hands of the Supreme Court. If any of the provisions of the Act is found to be violating the provisions of the Constitution, it will be declared null and void that is unconstitutional by the Supreme Court of India and henceforth, it cannot be enforced by the government. Therefore, the power of the judiciary is to determine and examine the validity of the laws and this is described as ‘Judicial Review’. This shows that the Constitution is ‘Lex Supreme’; the supreme law of the land.

There is two important motive of the judicial review; they are as follows:

  • To protect the Constitution from any inordinate encroachment by the Government.
  • To legitimise the actions of the Government.

In Indian concept, law and Justice are part and parcel of a civilized society. Judicial Review covers only law and no political issues under its umbrella. When deciding about the validity of the law; Supreme Court has the option to declare the law constitutionally valid, or to declare the law unconstitutional or it can declare some parts valid and some invalid. When any law is declare unconstitutional it stops to work from that very day and all the activities that are done on the basis of that law before the judgement of the invalidity has been passed; remains to be valid. When the Supreme Court is declaring any law invalid, it has to cite the reasons for it and it has to clearly establish the invalidity of the particular law. Judicial review is a substantial power to prevent unconstitutional use of power by the legislature and executive. Being the part of ‘Rule of Law’, Judicial Review creates checks and balances mechanism on the other part of the Government and maintains separation of power.

There are three aspects of Judicial Review in India and they are as follows:

  • Judicial Review of Administrative Actions,
  • Judicial Review of Legislative Actions,
  • Judicial Review of Judicial Decisions.

Enlarging the arena of Judicial review, it has taken many layers together with the concept of social and economical justice while exercising the powers of the legislature and executive which is subjected to judicial restraint and which is the only check on court’s self-exercise of power which is again self-imposed by the court of judicial restraint. While exercising the power of Judicial review of Administrative action the court is not an appellate authority the constitution doesn’t permit the code to direct or advise the executive and matters of policy or to sermonized any matter which under the constitution lies within the sphere of legislature or the executive provided these authority’s doesn’t transgress their constitutional limits or statutory powers. In a federal constitution, the distribution of legislative powers between Parliament and State Legislature involves limitation on legislature and therefore this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial Review acts as the final arbiter not only to give effect the distribution of legislative power between Parliament and State Legislature; it also necessary to show any transgression by each entity and therefore to follow the words of Lord Steyn, Judicial review is justified by the combination of “the principles of separation of power, rule of law, the principle of constitutionality and the reach of Judicial Review.”  If the federal structure is violated by any legislative action the constitution takes care to protect the federal structure by ensuring that courts acts as the guardian and interprets  of the constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation.

The power of the court to specifically declare the legislative enactments unconstitutional is defined under Article 13 of the Indian Constitution and shall be read with Article 32 with respect to Supreme Court and Article 226 with respect to High Court. Where, Article 13 declares that ‘any law which contravenes any of the provisions of the part of Funda­mental Rights shall be void’. There are other provisions also in the Constitution; apart from Article 13 that guarantees the right of the Supreme Court of judicial review and they are 32, 131-136, 143, 226, 145, 246, 251, 254 and 372. Where, Article 32 and 226 are for the Supreme Court and High Courts respectively for the protection of the Fundamental Rights of the citizens. Article 131-136 assigns the court with the power to arbitrate the disputes that are between the individuals, between the individuals and the state or between the state and the centre but for this the court needs to interpret the provisions stated in the Constitution and therefore the interpretation given by the Supreme Court becomes the law that needs to be followed by all the existing courts in India. Article 245 of the Constitution states that the powers of Parliament and the State Legislatures are all subjected to the provisions stated in the Constitution. Article 245 states that the powers of Parliament and State Legislature are subjected to the provisions in the Constitution. Article 246(3) ensures the State Legislature’s exclusive powers on the matters that are in the State List.

Internationally, the concept of Judicial Review was evolved in 1803 by Chief Justice Marshall in the case of Marbury v. Madison[1]. Likewise, in India the scenario is different; there are many cases in India since 1951 that gave different shape to Judicial Review at different stages. Moreover, starting from Shankari Prasad v. Union of India[2] 1951, the question arose for the validity of the Constitution and its amenability and right to property (initially Article 31) was challenged. The court, in this case held that the power to amend the Constitution is in Article 368 (even of the Fundamental Rights) and the word ‘law’ is contained in Article 13(2) that includes only an ordinary law made in exercise of the legislative powers and does not include constitutional amendment which is made in exercise of constituent power. Therefore, a constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.[3] Secondly, in Sajjan Singh v. State of Rajasthan[4] 1964, the same question arose as before and once again the Court reviewed its decision and revised it and said that constitutional amendment (Article 368) outside the purview of the Judicial Review and the Fundamental Rights can be amended. But in 1950, in the case of A.K. Gopalan[5], the courts took up a precise approach and showed the real stigma of judicial restraint by declaring that the power of Judicial Review of the judiciary is inferior to the ‘procedure established by law’. Therefore, the Constitution of India relates to ‘procedure established by law’ and not ‘due process of law’ like the USA Constitution.

There is need of harmony amongst the three organs of the Government i.e., Legislature, Executive and Judiciary and thus, in Golak Nath[6] case, the court of law decided that provisions in Article 368 that are related to the provisions of the amendment merely lay the procedure of amendment and it doesn’t grant the Parliament to have the power to amend the Constitution.

The power to amend the Constitution of India by the Parliament arose from other provisions that are stored in the Articles 245, 246, 248 of the Constitution, which indirectly gives the Parliament the power to make laws. Thus, the Supreme Court held that the amending power as well as the legislative powers of the Parliament was indispensably the same. Subsequently, in Keshavanand Bharti v. Union of India[7] 1973, the courts managed to overrule its previous judgment of given in Golak Nath[8] case but also it formed the capability to examine any amendment minutely that violates the ‘basic structure of the Constitution’. Here, the judicial system of India tilted from ‘procedure established by law’ to ‘due process of law’. After this, the courts followed the power of Judicial Review as a part of their basic structure and realized that their power is more from the interpretation of law and this lead to judicial activism.

In GVK Industries Limited v. Income Tax Officer[9] (2011) Para 35, the power of Judicial review are granted in order to ensure that legislative and executive powers are used within the bounds specified in the Constitution. In cases like; Rajaram Pal v. Hon’ble Speaker Lok Sabha[10] (2007) and I.R. Coelho v. State of Tamil Nadu[11] (2007); the Supreme Court reaffirmed the power of judicial review by the higher Judiciary as a part and parcel of basic feature of the Constitution. The former relates to parliamentary privileges and later relates to power of Judicial Review relating to the matter falls within the domain of 9th Schedule of the Indian Constitution.

CONCLUSION:

Finally, Judicial Review not only strengthened the powers of the three organs of the Government i.e., Legislature, Executive and Judiciary but also laid emphasis on how important to keep an eye on the laws that are dynamic in nature and provides the best to the citizen according to the need of the society. This has therefore, strengthened the political structure of the country with the socio-economic structure. As accountability is the quintessential part of rule of law and hence judicial review too. The growth of judicial review in India will give the judiciary an extended power to ensure the public power is not abridged.

[1] Marbury v. Madison, 5 U.S. (1 Cranch), 137 (1803).

[2] Shankari Prasad Singh Deo v. Union of India,(1951) S.C. 458.

[3] Shrishti Gupta, Judicial Review in India, RACOLB LEGAL, ( Jun 01,2018,10.04 A.M.), http://racolblegal.com/judicial-review-in-india/.

[4] Sajjan Singh v. State of Rajasthan, (1965) S.C.R. 933 (India).

[5] A.K. Gopalan vs The State Of Madras, (1950) S.C.R. 88 (India).

[6] I. C. Golaknath & Ors vs State Of Punjab & Anrs.,(1967) S.C.R. 762 (India).

[7] Kesavananda Bharati  vs State Of Kerala And Anr,(1973) 4 S.C.C. 225 (India).

[8] I. C. Golaknath & Ors vs State Of Punjab & Anrs.,(1967) S.C.R. 762 (India).

[9] GVK Industries Limited v. Income Tax Officer, (2011) 4 S.C.C. 36 (India).

[10] Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 S.C.C. 184 (India).

[11] I.R. Coelho v. State of Tamil Nadu, (2007)2 S.C.C. 1 (India).