Judicial Review in India

Judicial review is a special power given to the judiciary to keep the constitution as the main guiding element of governance and ensuring its prevalence in every aspect. It runs over the principle of ‘procedure established by law’ under which, the courts test if a law has been made with adherence to the roles granted by the constitution of India and if a given procedure of law is used for the same.

In judicial review, the courts of the country have to evaluate and decide the constitutional validity of various acts of all the government bodies. If at all, something turns out to be contradicting the basic structure of the constitution, the courts are free to declare it void. Other than this, the judiciary gets to interpret the constitution and to keep a strict check if its followed religiously around the country, in every law, in every act. Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372 are the provisions of the Indian constitution which stand for Judicial review. Some of the key features of this system are:

  1. It is a power which can be practiced by all the High courts of the country as well as the supreme court of India. Furthermore, the courts have to state appropriate reasons of constitutional invalidity while declaring any law void.
  2. Judicial review can take into consideration both, the state laws and the central laws for evaluation of their constitutional validity. But, at the same time, it cannot be followed over the laws in ninth schedule of the constitution.
  3. Judicial review focuses only on the question of law. Any political question or issue will not fall under this system.
  4. The courts do not use this power on their own. For a judicial review to take place, the law which is the basis of any case in question, must be challenged.
  5. In a judicial review judgement, the court can give any of the three main decisions which are- declaring a law completely valid, completely invalid or partly invalid. In the last option, only few invalid elements of the law are struck down while the other elements still keep working. But, if the valid parts are somehow dependent on the invalid parts for their working, then eventually, the whole law is declared invalid.
  6. If a law is declared unconstitutional under the system, its operation stops from the day of the judgement. However, the cases where that law was taken as a basis, before the judgement was passed, will still be considered valid.

Evolution of the judicial review in India

The U.S supreme court gave rise to the power of Judicial Review. It was first tested in the case of Marbury vs. Madison[1], 1803. As far as the Indian constitution is concerned, it has bent towards the U.S constitution rather than the British constitution, in this regard. In Britain, the parliament is supreme. To put it simply, any decision taken by the British parliament, cannot be questioned. Moreover, the judiciary has very limited powers, as a result of which, it has to go by whatever the parliament decides.

However, this is not the case in India. Two basic concepts which come into play here are, ‘rule of law’ and ‘separation of powers’. The rule of law makes the Indian Constitution supreme. It says that anything which is an infringement of the basic structure of constitution, is void. While, the separation of powers between three organs of the government- Legislature, Executive and Judiciary, avoids exploitation of power because rather that giving the absolute power in the hands of one person or an institution, it gives each organ a different role to play in the overall administration of the country. Legislature consists of the parliament and makes the law, Executive makes sure that the law is religiously implemented and Judiciary deals with the conflicts arising due to breach of that law and most importantly, it keeps the other organs in check for maintaining the balance of the power.

Therefore, Judicial review exists to keep these two concepts working around the country. It gives judiciary, the power to struck down anything enacted by other two organs which may stand against the principles of the Indian constitution as well as it ensures that there is no misuse of powers by the hands of any of the organs of the government. Hence, guided by a very detailed constitution, which defines the limits and powers of every single institution in the country, keeping the fundamental rights of every individual intact, it can be said that judicial review works pretty well in India.

Criticism

Even though, the system of judicial review looks like a positive element of the administration, it does have some points of criticism which cannot be neglected either. Firstly, judicial review of a law happens only when a case comes up in the supreme court which puts a question mark on the constitutionality of that law. These kinds of cases may appear in front of the court after years of its implementation.

For example, a law which was implemented 5 years ago comes into question and under the system of judicial review, is declared unconstitutional. So now, it will put an impact on all the prior cases, which were dealt with considering the law that no longer exists. This is something which will give rise to multiple disputes, making the complete administration complex.

Moreover, sometimes the supreme court tends to reverse its own judgement. This happened in the case of Kesavananda Bharti vs. State of Kerala [2] , where the entire decision was reversed from the previous judgement of the case Golaknath vs. State of Punjab[3]. On the other hand, in few cases where the ratio of majority and minority depends on one judge, the whole decision would depend on his individual perspective. These points bring out the subjective nature of the judicial review which could be a huge negative.

Secondly, there is a possibility that, in order to stick to the constitution, the judiciary invalidates the progressive laws suggested by the legislature, keeping the flexibility null.

And lastly, it can also lead to delay and insufficiency in the work of the parliament by putting the entire responsibility of checking the constitutionality of any law on the judiciary itself, which will truly hamper the whole process of justice and governance.

Case laws

In Shankari Prasad vs. Union of India[4], the first Amendment Act of 1951 was challenged before the Supreme Court and it was said that the Act curtailed the right to property and could not be followed due to restriction on the amendment of Fundamental Rights under Article 13 (2). Supreme Court discarded the claim and held that “The terms of Article 368 are perfectly general and empower parliament to amend the constitution without any exception whatever.

 In the context of Article 13 law must be taken to mean rules or regulations made in exercise of ordinary legislative power and amendments to the constitution made in exercise of constituent power, with the result that Article 13 (2) does not affect amendments made under Article 368.”

Golaknath vs. State of Punjab[5] is one of the most historic judgements passed by the supreme court. It challenged the validity of three constitutional amendments- 1st, 4th and 17th and  was heard by a bench of 11 judges. With the majority of six judges, the supreme court reversed its earlier decision and declared that under Article 368, in any situation, parliament cannot take away the Fundamental Rights in chapter II of the Indian constitution.

In Minerva Mills case[6], Section 4 of the 42nd Amendment Act was struck down by the supreme court. This section gave prevalence to the Directive Principles over Articles 24, 19 and 31 of part III of the constitution. The court stated that since, part III and part IV of the Indian constitution are of equal significance, absolute primacy of one over the other would not be fair.

Conclusion

Even though, the doctrine of judicial review is a little flawed, it never failed in creating a sufficient balance between legislature and executive. The power granted to the judiciary might be ultimate, and excessive use of it might result in violation of the constitutional principles, but since the judicial review works only with the objective of avoiding the same, rise of any such issue is hard to imagine. Also, the given power doesn’t make the judiciary unanswerable to the nation because eventually we live in a democracy where, no matter what,  every institution of the government is answerable to the people of the country.

The system itself has developed a lot in the past years and turned into a much more efficient mechanism that takes into consideration the best interest of all the sectors in the country and decides in the favour of justice. In short, the purpose of it to keep the soul and structure of the Indian constitution intact, has been nicely served till date.

Thus, without a doubt, it can be said that judicial review is an essential tool of the country’s administration which keeps the democracy in good operation.


[1] 5 U.S. (1 Cranch) 137 (1803)

[2] AIR 1973 SC 1461

[3] AIR 1967 SC 1643

[4] AIR 1951 SC 458

[5] Ibid 3

[6] (1980) 3 SCC 625

Nandini Gahlot from Symbiosis Law School, Noida

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