Judicial Review

Introduction
The Indian constitution guarantees justice, equality, liberty, and fraternity. and the judiciary
has a key role to play in upholding these values. Central to the functioning of the Indian legal
system is the concept of judicial review, which empowers the judiciary to review the
legislative enactments and executive actions and to declare them null and void if found
repugnant to the provisions of the Constitution. Judicial review serves as a critical mechanism
for ensuring that the fundamental principles enshrined in the Indian Constitution are upheld,
and that the actions of the government are not in conflict with the constitution.

Thus the concept of judicial review works in a written Constitution where the powers
of different organs of the government are clearly defined and they are expected to work
within their respective jurisdiction only. If they transgress their authority, the doctrine of
judicial review is applied by the Court to check them and maintain the balance enshrined in
the Constitution. According to Gosnell, "By judicial review we mean the authority belonging
to the Courts to declare acts of the legislative branch of no effect when, in the opinion of the
judges, such acts are inconsistent with the requirements of the Constitution." M.V. Pylee
Writes, "The essence of judicial review is the competence of a Court of law to declare the
Constitutionality or otherwise of a legislative enactment."
Historical background
The concept of judicial review originated in the United States, where the Supreme Court
established its authority to strike down laws that were in violation of the US Constitution. the
The power of judicial review was first introduced in the US supreme court in the case of
Marbury v. Madison (1803) in which the powers of the supreme court was established by
limiting the power of the congressional by declaring the legislation unconstitutional. The then
Chief justice of the US supreme court, John Marshal established the principle of judicial
review with his decision in Marbury v. Madision. He stated the following: “It is emphatically,
the province and duty of the judicial department, to say what the law is; those who apply the
rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict
with each other, the Courts must decide on the operation of each. So if a law be in opposition
to the Constitution; if both the law and the Constitution, apply to a particular case, so that the
Court must either decide that case conformably to law disregarding the Constitution or apply
to a particular case, or conforming to law disregarding the Constitution; the Court must
determine which of these conflicting rules govern the case; this is of the very essence of the
judicial duty. If then, the Courts are to regard the Constitution and the Constitution is superior
to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must
govern the case to which they both apply.”

The power of judicial review in India has been taken from the Constitution of the USA. Thus,
India's Constitution is more similar to the American Constitution than to the British or any other
constitution. In 1950, Justice Mukherjee explained that India's Constitution, although it has
adopted many principles of the parliamentary system, has not accepted the English doctrine of
Parliament's absolute supremacy in matters of legislation. Instead, India's Constitution is
supreme, and both Parliament and State Legislatures must act within the limits of their respective
legislative spheres, as outlined in the three lists in Schedule VII of the Constitution. Additionally,
Part III of the Constitution guarantees certain fundamental rights to citizens, which legislative
authorities cannot violate under any circumstances. Hence, any statute or law must conform to
the Constitutional requirements, and it is the judiciary's responsibility to determine whether any
enactment is unconstitutional or not. Thus,
Constitutional provisions for judicial review
Though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, the
provisions of several Articles explicitly confer the power of judicial review on the Supreme
Court and the High Courts. These provisions are explained below:

1. Article 13 declares that all laws that are inconsistent with or in derogation of the
Fundamental Rights shall be null and void.

2. Article 32 guarantees the right to move the Supreme Court for the enforcement of the
Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs
for that purpose.

3. Article 131 provides for the original jurisdiction of the Supreme Court in centre-state
and inter-state disputes.

4. Article 132 provides for the appellate jurisdiction of the Supreme Court in
constitutional cases.

5. Article 133 provides for the appellate jurisdiction of the Supreme Court in civil cases.

6. Article 134 provides for the appellate jurisdiction of the Supreme Court in criminal
cases.

7. Article 134-A deals with the certificate for appeal to the Supreme Court from the High
Courts.9

8. Article 135 empowers the Supreme Court to exercise the jurisdiction and powers of
the Federal Court under any pre constitution law.

9. Article 136 authorises the Supreme Court to grant special leave to appeal from any
court or tribunal (except military tribunal and court martial).

10. Article 143 authorises the President to seek the opinion of the Supreme Court on any
question of law or fact and on any pre-constitution legal matters.

11. Article 226 empowers the High Courts to issue directions or orders or writs for the
enforcement of the Fundamental Rights and for any other purpose.
12. Article 227 vests in the High Courts the power of superintendence over all courts and
tribunals within their respective territorial jurisdictions (except military courts or tribunals).

13. Article 245 deals with the territorial extent of laws made by Parliament and by the
Legislatures of States.

14. Article 246 deals with the subject matter of laws made by Parliament and by the
Legislatures of States (i.e., Union List, State List and Concurrent List).

15. Articles 251 and 254 provide that in case of a conflict between the central law and
state law, the central law prevails over the state law and the state law shall be void.

16. Article 372 deals with the continuance in force of the pre-constitution laws.
Importance of Judicial Review:
Judicial review is a captivating and essential component of our legal system for many
compelling reasons. Firstly, it upholds the fundamental principle of the Constitution's
supremacy, which ensures that no branch of government is above it. This principle sets the
foundation for a fair and just society where all citizens are equal under the law. Secondly, it
helps to maintain a healthy balance of power between the central government and the state
governments. This balance is v vital in ensuring that the government operates efficiently and
effectively, without infringing on the rights of the citizens. Lastly, judicial review plays an
indispensable role in safeguarding the fundamental rights of citizens.

The significance of judicial review is evident in the many landmark cases where the Supreme
Court, the highest court in the land, has emphasized its importance. In Rajasthan v. Union of
India, former Chief Justice P.N. Bhagwati eloquently stated that the Constitution is the
supreme law of the land, and no branch of government is above it. This statement reflects the
Court's unwavering commitment to upholding the Constitution and ensuring that all branches
of government act within their constitutional limits.

In L. Chandra Kumar v. Union of India, former Justice Ahmadi emphasized the crucial role
that Supreme Court judges play in upholding the Constitution and interpreting its provisions.
Their responsibility is to ensure that the balance of power outlined in the Constitution is
maintained and that the legislative and executive branches do not exceed their constitutional
limitations. This thoughtful approach ensures that the government operates in the best
interests of the citizens, and their rights and freedoms are protected. Overall, judicial review
is a critical pillar of our legal system, and the Supreme Court's role in interpreting the
Constitution is essential in ensuring that our democracy remains strong and vibrant.
Types of Judicial Review

As famously classified by Justice Syed Shah Mohamed Quadri, there

are three major categories of judicial review. They are as follows:

(1) Judicial review of constitutional amendments.—This has been the subject-

matter of consideration in various cases by the Supreme Court; of them worth
mentioning are: Shankari Prasad case , Sajjan Singh case, Golak Nath
3

case , Kesavananda Bharati case, Minerva Mills case, Sanjeev Coke

5

case and Indira Gandhi case; the test of validity of constitutional amendments is
8

conforming to the basic features of the Constitution.

(2) Judicial review of legislation of Parliament, State Legislatures as well as

subordinate legislation.—Judicial review in this category is in respect of
legislative competence and violation of fundamental rights or any other
constitutional or legislative limitations;

(3) Judicial review of administrative action of the Union of India as well as the
State Governments and authorities falling within the meaning of State.
Scope of Judicial Review
The constitutional validity of a legislative enactment or an executive order can be challenged
in the Supreme Court or in the High Courts on the following three grounds:

(a) it infringes the Fundamental Rights (Part III),

(b) it is outside the competence of the authority which has framed it, and

(c) it is repugnant to the constitutional provisions.

The operation of Judicial Review in India
The power of judicial review was first established by the Supreme Court in the case of
Shankari Prasad v. Union of India (1951), in which the petitioner challenged the First
Amendment of the Constitution on the ground that it infringed the fundamental right to
property, which remained unamendable under Article 13(2) of the Constitution. Taking a firm
stand rooted in the wisdom of re-specting the Parliament’s position as representing the will of
the people, the Court rejected the contention of the petitioner and held that Parliament is
competent to amend any part of the Constitution including that of the fundamental rights.

Significantly, the turning point in the course of the judicial review of the constitutional
amendments came in 1967 when neither the political leadership of the country remained
restrained in its approach towards other institutions of government nor the Supreme Court
sought to avoid a confrontationist attitude towards the legislative and the executive branches
of the government. Taking a highly conservative position on the amending power of the
Parliament, in the case of Golak Nath vs State of Punjab, the Supreme Court, with a majority
of 6 to 5 held that the Parliament did not have any power to amend any of the provisions of
Part III of the Constitution so as to take away or abridge the fundamental rights enshrined
therein. Putting a blanket ban on the amendability of the fundamental rights created a piquant
situation for the government of Indira Gandhi who was bent upon to consolidate her position
by taking recourse to populist policies guised in the name of socialism. Hence, after her
astounding electoral victory in 1971, she got the Twenty-fourth and Twenty-fi fth
Amendments passed, restoring the amending power of the Parliament in respect of all the
provisions of the Constitution.

The constitutional validity of these amendments was chal-lenged in the landmark case of
Keshvanand Bharti vs State of Kerala, in which the approach of the Supreme Court appears
to be fi nding a middle ground in its dealings with the Parliament keeping in view the
stubborn attitude of the government in brow-beating the independence of judiciary in the
country. The Court, therefore, devised the innovative doctrine of ‘basic structure’ of the
Constitution to lay down the far-reaching formulation that there exists a basic structure of the
Constitution, which lies be-yond the amending power of the Parliament. Yielding suffi cient
space for the Parliament to amend the Constitution in order to make it in tune with the
changing times, the Court created a sort of fortress in the name of the basic structure to avail
an unenvi-able position in the political system from where it can become the custodian of the
Constitution. Interestingly, the Court deliberately avoided defi ning as to what constitutes the
basic structure presum-ably in order not to frighten the government with the enumeration of
the domains which would permanently lie out of bounds for it, in the short run, and to keep
its options open as to include any provision of the Constitution in the fortress of basic
structure to make it immune from amendment. Thus, the Keshvanand Bharti case proved to
be win-win situation for the Supreme Court in so far as its power of judicial review is
concerned.

Refusing to give up easily, the government started looking up for a way to wriggle out of the
uneasy situation created by the Keshvanand Bharti case and finding the answer in the form of
the Forty-second Amendment to the Constitution, which not only enlarged the powers of the
Parliament but also put a number of fetters on the power of judicial review of the courts.
Though much of the unsavoury provisions inserted by the Forty-second Amendment had been
undone by the Constitution’s Forty-fourth Amendment, the remaining portion was challenged
in the case of Minerva Mills Ltd. vs Union of India in 1980. Consecrating the doctrine of
basic structure of the Constitution finally for all times to come, the Supreme Court reiterated
that the Parliament has only limited power to amend the Constitution and in no case, the basic
structure of the Constitution can be destroyed by way of constitutional amendment enacted
by the Parliament.

The final hurdle in the unfettered power of judicial review of the Court was cleared by the
Supreme Court in 2005 when the constitutional validity of the Ninth Schedule of the
Constitution was questioned on the ground that it violates the basic structure of the
Constitution by snatching certain laws from the scrutiny of the court after they are placed in
the said Schedule. Taking a bold position, the Supreme Court, exhibiting the middle approach
adopted in the case of Keshavanand Bharti in 1973, though did not hold the Ninth Schedule
to be null and void, declared that the said Schedule cannot become a shield to hide certain
laws passed by the legislatures from the purview of the judicial review by the Court. Thus,
even the last bastion of the legislature to escape the searchlight of the judicial scrutiny was
demolished by the Supreme Court, taking the power of judicial review to an unprecedented
height in the constitutional jurisprudence of the country.