Judicial Review

Introduction




As per Britannica Encyclopedia Judicial Review
means examination by the Constitutional courts
of the actions of the legislative, executive,
and administrative branches of Government to
ensure that those actions conform to the
provisions of the Constitution. Actions that do
not conform are unconstitutional and therefore
null and void. Personal liberty, Due process of law, Equal
protection and equality before law, freedom of
religion, freedom of speech and right of privacy
are most debated subject matters. In India the Supreme court
and High Courts are entrussted with the powers of judicial
Review, enabling them to
declare unconstitutional legislation or acts of the
executive, as void.

Meaning in General Law

Former C.J.I, Dr. A.S. Anand explained that JUDICAL REVIEW is not an expression exclusively used in Constitutional law. Literally, it meant the revision of the decree or sentence of a sub ordinate court by a superior court. Under general law, it works through the remedies of appeal, revision and the like, as prescribed by the procedural law of the land.

Meaning in Public Law

Judicial Review has, however, a more technical significance in public law, particularly in countries having written Constitutions. In such countries it means that courts have the power of testing the validity of the legislature as well as other Governmental actions.

Scope

Dr. A.S. Anand, former C.J.I., has observed that the scope of the Judicial Review is available in three specific areas:-
(i) Judicial Review of Legislative Action.
(ii) Judicial Review of Executive or Administrative Action.
(iii) Judicial Review of Judicial Action.

Essential Element

Judicial Review is an essential element of
the basic structure of Constitution of India as
affirmed by the Supreme Court in Indira Nehru
Gandhi V. Raj Narayan, AIR 1975 SC 2299,
Judicial Review is the power given to High Courts &
Supreme Court to scrutinize legislative and
administrative actions and strike down
Constitutionally offending ventures. In exercise
of this power the courts have held that even while
interpreting all other laws the Constitutional
principles enunciated in chapters III and IVth of
Constitution cannot be lost right of by all those
concerned with the governance.

Justice S.B. Sinha, Judge of the Supreme
Court, said that - it shall be the duty of the
parliament and State Legislature to apply the
Directive Principles of State policy in making
laws. It is well known presumption of law that
all laws are made in accordance with the
Constitution. Therefore, if any provisions of any
law presents any difficulty the first step is to
conclusively presume that the law requiring
interpretation was made in furtherance of
the preambular goals and Directive Principles
of State Policy or specific provisions thereof.
This would enable to interpret the law in the light
of the preamble and the Directive Principles of
the State Policy. Indeed such a method of valid
Constitutional interpretation of law which all the
Judges are bound to follow, is accepted by the
Supreme Court.

Constitutional Provisions

Articles 13, 32, 226 of the Constitution.

Articles 13
Articles 13 of the Constitution [in part III] reads as under:--
Laws inconsistent with or in derogation of the fundamental rights:

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law.

Article 32

Article 32 (2) of the Constitution postulates that the Supreme Court shall have power to issue directions or orders or writs, for the enforcement of any of the rights conferred by part III of the Constitution.

Article 226 Every High Court shall have power within its jurisdiction, to issue to any person or authority or any Government, within those territories directions, orders or writs, for the enforcement of any of the rights conferred by part III of the Constitution and for any other purpose.These powers enable the Supreme Court and every High Court to exercise power of judicial review and Article 13 give teeth to strike down action of the Executive or Legislature to the extent of the contravention.

Basic Structure

In Keshavanand Bharti V. State of Kerala, AIR 1973 SC 1461, the Apex Court held that the Supreme Court of India can review even a Constitutional amendment and strike it down if it undermines the basic structure of the Constitution.


Dr. B.R. Ambedkar defended the provisions of judicial Review and particularly for the writ jurisdiction that gave quick relief against the violation of fundamental rights constituted the heart of the Constitution, the very soul of it.

Checks and Balances

The necessity of empowering the courts to declare a statute unconstitutional arises not because the Judiciary is to be made Supreme but only because a system of checks and balances between the legislature and the executive on one hand and the Judiciary on the other hand provides the means by which mistakes committed by one organ of the State are corrected by the other and VICE VERSA. The duty of the judiciary is to consider and decide whether a particular statute accords or conflicts with the Constitution and make a declaration accordingly.


Doctrine of Basic Structure

In Keshavanand Bharti V. State of Kerala, AIR 1973 SC 1461, the Apex Court evolved doctrine of Basic Structure, holding that the Supreme Court of India can review even a Constitutional amendment and strike it down if it undermines the basic structure of the Constitution.

Every State Action

Every State action has to be tested on the anvil of the rule of law and that exercise is performed, when occasion arises by reason of a doubt raised in that behalf, by the courts. During the course of Judicial Review Courts must have to regard the Constitution because the Constitution is superior to any other ordinary law.

Fundamental Rights

Former judge of the Supreme Court, H. R. Khanna, emphasized in Kesavanand Bharti case that - As long as some fundamental rights exist and are a part of the Constitution, the power of Judicial Review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened …………… Judicial Review has thus become an integral part of our Constitutional system.

Minerva Mills Case

In Minerva Mills V. UNION OF INDIA, AIR 1980 SC 1789 Chandrachud, C.J., speaking for the majority, observed that it is the function of the judges to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution then becomes uncontrolled. The power of Judicial Review is an integral part of our Constitution and is unquestionably …………………..is a part of basic structure of the Constitution.

Cannot be Excluded

A bench of 7 Judges in L. Chandra Kumar V. UNION OF INDIA, AIR 1997 SC 1125 Said – We, therefore, hold that the power of Judicial Review over legislative action vested in the High Court Under Article 226 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Therefore the power of High Courts and Supreme Court to test the Constitutional validity of legislation can never be ousted or excluded. Power of Judicial review under articles 226 and 227 cannot be excluded even by a Constitutional amendment. The same principle applies to the power of Supreme Court under Article 32 of the Constitution.

Effect of the above Judgment

The decision contrary in SAMPAT KUMAR was overruled in L. Chandra Kumar case. This landmark Judgment has prevention all future amendments to the constitution adversely affecting the power of judicial Review, conformed on the Supreme Court and High Courts.

Marbury v. Madison

In case of Marbury v. Madison, [1803] for the first time the U.S. Supreme Court declared something "unconstitutional," and established the concept of “ judicial review” in (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government.

Legislature Competence

It is for the Constitutional court to the decided whether or not a legislature has competence to enact a law. What are the tests, tools and techniques to be applied by Constitutional courts while adjusting legislature competence of Parliament as well as States? When Parliamentary legislation is challenged on the ground; lack of legislative competence, qua ‘Article 246(1) of the Constitution and Union List – I, it is enough to enquire if it is a law with respect to matters enumerated in list II, even if any matter is not specifically enumerated in that list. The words any other matter’ in Entry 97 and Article 248 confer power on the Parliament to legislate on the matter. After examining List-II, it is not possible to say that the legislation falls within any of the entries in list-II, the enquiry should stop the and a conclusive presumption in favour of Parliament’s innovative having regard to the principle of striking perfect balance between Union and State.

In Union of India V. H.S. Dhillon AIR 1972 SC 1061 a Constitutional bench of 7 Judges held that – We have the three lists and a residuary power. In this context if a Central Act is challenged, as being beyond the legislative competence of Parliament, it is enough to enquire if it is a law with respect to matters or taxes enumerated in list – II. If it is not, no further question arises.

Watchdog

Dr. A.S. Anand former C.J.I. has rightly observed that – Under the scheme of the Constitution, the court has played its role effectively in acting as watchdog through judicial review. He further says that judicial review plays an important role as defender, guardian and protector of the Constitution.