Judicial Review in India: Concept, Provisions, Amendments and Other Details

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Judicial Review in India: Concept, Provisions, Amendments and Other Details!

The power of judiciary to review and determine the validity of a law or an order may be described as the
powers of Judicial Review’.

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It means that the constitution is the supreme law of the land and any law inconsistent therewith is void
through judicial review.

It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and
administrative arms of government and to ensure that such actions conform to the provisions of the
nation’s Constitution. Judicial review has two important functions, like, of legitimizing government
action and the protection of constitution against any undue encroachment by the gov-ernment.

Extensive Concept of Judicial Review in India:

The Supreme Court has been vested with the power of judicial review. It means that the Supreme Court
may review its own Judgement order. Judicial review can be defined as the competence of a court of law
to declare the constitutionality or otherwise of a legislative enactment.

Being the guard-ian of the Fundamental Rights and arbiter of the constitutional conflicts between the
Union and the States with respect to the division of powers between them, the Supreme Court enjoys the
competence to exercise the power of reviewing legislative enactments both of Parliament and the State’s
legislatures.
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The power of the court to declare legislative enactments invalid is expressively pro-vided by the
Constitution under Article 13, which declares that every law in force, or every future law inconsistent
with or in derogation of the Fundamental Rights, shall be void. Other Articles of the Constitution (131-
136) have also expressively vested in the Supreme Court the power of reviewing legislative enactments of
the Union and the States.

The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the Constitution (1976),
in several ways. But some of these changes have been repealed by the 43rd Amendment Act, 1977. But
there are several other provisions which were introduced by the 42nd Amendment Act 1976 not repealed
so far.

These are:

(i) Arts. 323 A-B. The intent of these two new Articles was to take away the jurisdiction of the Supreme
Court under Art. 32 over orders and decisions of Adminis-trative Tribunals. These Articles could,
however, be implemented only by legislation. Art. 323A has been implemented by the Administrative
Tribunals Act, 1985 (ii) Arts. 368 (4)-(5). These two Clauses were inserted in Art. 368 with a view to
preventing the Supreme Court to invalidate any Constitutional Amendment Act on the theory of ‘basic
features’ of the Constitution.

These Clauses have been emasculated by the Supreme Court itself, striking them down on the ground that
they are violative in the two ‘basic features’ of the Constitution:

(a) the limited nature of the amending power under Art. 368 and

(b) judicial review in the Minerva Mills case.

The court was very reluctant and cautious to exercise its power of Judicial Review, during the first
decade, when the Supreme Court declared invalid only one of total 694 Acts passed by the Parliament.
During the second decade the court asserted its authority without any hesitation which is reflected in the
famous Golak Nath case and Kesavananda Barti case. In these cases the Supreme Court assumed the role
of constitution making.

Indian Judiciary has been able to overcome the restriction that was put on it by the 42nd amendment, with
the help of the 43rd and 44th amendments. Now the redeeming quality of Indian judiciary is that no future
governments could clip its wings or dilute its right of Judicial Review. In fact, now the ‘Judicial Review’
is considered to be the basic feature of our Constitution.

Constitutional Provisions for Judicial Review:

The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution. Parliament is not
supreme under the Constitution of India. Its powers are limited in a manner that the power is divided
between centre and states.

Moreover the Supreme Court enjoys a position which entrusts it with the power of reviewing the
legislative enactments both of Parliament and the State Legislatures. This grants the court a powerful
instrument of judicial review under the constitution.

Both the political theory and text of the Constitution has granted the judiciary the power of judicial
review of legislation. The Constitutional Provisions which guarantee judicial review of legislation are
Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitution legislation.

Article 13 declares that any law which contravenes any of the provisions of the part of Funda-mental
Rights shall be void.

Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme
and High Courts.
Article 251 and 254 states that in case of inconsistency between union and state laws, the state law shall
be void.

Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to the State List.

Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of
the constitution.

The legitimacy of any legislation can be challenged in the court of law on the grounds that the legislature
is not competent enough to pass a law on that particular subject matter; the law is repug-nant to the
provisions of the constitutions; or the law infringes one of the fundamental rights.

Articles 131-136 entrusts the court with the power to adjudicate disputes between individuals, between
individuals and the state, between the states and the union; but the court may be required to interpret the
provisions of the constitution and the interpretation given by the Supreme Court becomes the law
honoured by all courts of the land.

There is no express provision in our constitution empowering the courts to invalidate laws, but the
constitution has imposed definite limitations upon each of the organs, the transgression of which would
make the law void. The court is entrusted with the task of deciding whether any of the consti-tutional
limitations has been transgressed or not.

Constitutional Amendments and the Use of Judicial Review:

Until 1967, the Supreme Court upheld that the Amendment Acts were not ordinary laws and could not be
struck down by the application of Article 13 (2).

It was in the famous Golak Nath Vs. the state of Punjab case in 1967, where the validity of three
constitutional amendments (1st, 4th and 17th) was challenged, that the Supreme Court reversed its earlier
decision and uphold the provision under article 368 which put a check on the Parliament’s propensity to
abridge the fundamental Rights under chapter III of the Constitution.
In the Kesavananda Bharti Vs. State of Kerala case in 1973, the constitutional validity of the twenty-
fourth, twenty fifth and twenty ninth amendments was challenged wherein the court held that even though
the Parliament is entitled to amend any provision of the constitution it should not tamper with the
essential features of the constitution; and that Article 31c is void since it takes away invaluable
fundamental rights.

The court balances the felt ‘necessities of the time’ and ‘constitutional fundamentals’ when scru­tinizing
the validity of any law. H.M. Seervai has enumerated some of the canyons, maxims and norms followed
by the court:

1. There is a presumption in favour of constitutionality, and a law will riot be declared tin constitutional
unless the case is so clear as to be free from doubt; and the onus to prove that it’s uncon­stitutional lies
upon the person who challenges it.

2. Where the validity of a stature is questioned and there are two interpretations, one of which would
make the law valid, and the other void, the former must be preferred and the validity of the law will be
upheld.

3. The court will not decide constitutional questions if a case is capable of being decided on other
grounds.

4. The court will not decide a larger constitutional question than is required by the case before it.

5. The court will not hear an objection as to the constitutionality of a law by a person whose rights are not
affected by it.

6. Ordinarily, courts should not pronounce on the validity of an Act or part of an Act which has not been
brought into force, because till then the question of validity would be merely academic.

7. In a later case, the Minerva Mill case, the Supreme Court went a step ahead. The 42nd Constitu-tional
Amendment of 1976 among other things had added a clause to Article 368 placing a constitutional
amendment beyond judicial review. The court held that this was against the doctrine of judicial review,
the basic feature of the Constitution.
Judicial Review under Private Law:

There are remedies against the actions of the executive under private law. A suit can be filed under
section 9 of the Code of Civil Procedure. The suit can be for damages from the government or other
public authority when right is violated and an injury is suffered. It can also be for a declaration of the
illegality of the administrative action.

A suit can be filed for issuing injunction against the act that threatens the rights of persons. These
remedies can, however, be specifically excluded by a statute under which the administration acts. In such
cases the statute will provide alternative remedies.

If it does not, or if the alternative remedies provided are not adequate or sufficient the aggrieved person
will have a right to file a suit. When the alternative remedies are effective the citizen will have the right
only to resort to those remedies and not the remedy under the Code of Civil Procedure. These rules are
laid down through judicial decisions.

Strategy of Judicial Review:

The strategy of judicial review can be divided broadly into public law review and private law review.
Under the Constitution, legislative and administrative actions can be reviewed by courts under Ar-ticles
32, 136, 226 and 227. Such review is called public law review. Article 32 guarantees the right to move the
Supreme Court if any fundamental right can be reviewed under this provision.

Writs:

Article 226 can be, and is more often, used for reviewing the action of administration. One can say that
there is an increase of litigation in this respect. The High Court can issue directions, orders or writs in the
nature of habeas corpus mandamus, prohibition, quo-warranto, and certiorari for the enforcement of
fundamental rights or for any other purpose.

Habeas corpus is a write issued by the court to bring before the court a person from illegal custody. The
court will examine the legality of detention and release the person if detention is found illegal.
Mandamus is issued to a public authority to do an act which under law, it is obliged to do or to forbear
from doing.

Prohibition is a write to prevent a court or tribune! from doing something in excess of its author-ity. High
Court has power to issue an order of prohibition to the executive authority prohibiting it from acting
without jurisdiction.

Certiorari is a write issued to a judicial or quasi-judicial authority to correct its order. This writ is issued
on specified grounds like violation of natural justice; excess, abuse or lack of jurisdiction; fraud; and error
of law apparent on the face of the record.

Quo-warranto is a writ issued to a person who authorisedly occupies a public office to step down from
that office. High courts and the Supreme Court have the power to issue not only these writs but also
appropriate directions and orders.

Judicial Review and Contempt of Court:

It is mandatory that an administrative officer or authority should obey the directions of a court and
execute the decisions of the court. What action can be court take if they do not do this? The court has
neither the sword not the purse like the executive. It has a potential power.

It has the power to take action of contempt of court. Those who violate or disobey the decisions of the
courts are proceeded against under this power. They can be punished and sent to jail. Obviously the
contempt power is the only weapon in the hand of judiciary to see that their decisions are executed.

Locus standi is the first limitation on judicial review. This means that only a person aggrieved by an
administrative action or by an unjust provision of law shall have the right to move the court for redressal.
Under this traditional rule a third party who is not affected by the action cannot move the court.

Another limitation is that before a person moves the High Courts and the Supreme Court invok-ing their
extraordinary jurisdiction, he should have exhausted all alternative remedies. For example, these may be a
hierarchy of authorities provided in legislation to look-into the grievances of the affected party. The
aggrieved person should first approach these authorities for a remedy before invoking extraordinary
jurisdiction of the courts.
However, the alternative remedies should be equally efficacious and effective as the remedies available
from the courts are. If they are not, the jurisdiction can be invoked. In cases of manifest injustice and the
violation of procedural fairness, alternative remedy is not a bar.

A rule has been evolved to avoid repeated adjudication on the same matter between the same parties. If
the case is finally disposed of on merits the same issue cannot be re-agitated by any of the parties filing
another case. This limitation is called res judicata.

Changing Trends in Judicial Review:

Recently there is a rising trends in judicial activism in the land. The doors of the judiciary are kept open
for redressing the grievances of persons who cannot ordinarily have access to justice. The strict
observance of the traditional rule of locus standi will do injustice to certain persons who do not have the
money, knowledge and facilities of approaching court.

In such cases if a public spirited person comes forward on their behalf courts relax the rules an adjudicate
over the matter. Thus, in the matter of socially and economically backward groups or persons who are not
aware of their rights or not capable of pursuing their case in a court, the complex and rigorous procedural
formalities are not insisted upon. At this level there are cases when press reports were taken as write
petitions and reliefs granted. Letters addressed to the courts were also ‘treated as petitions.

Judicial review is one of the important techniques by which the courts examine the actions of the
legislature, the executive and the other governmental agencies and decide whether or not these actions are
valid and within the limits set by the Constitution.

Therefore, with the power of judicial review the courts act as a custodian of the fundamental rights. The
Indian Judiciary, given the federal structure of the Constitution, also settles conflicts of jurisdiction in
legislation between the centre and the states. With the growing functions of the modern state judicial
intervention in the process of making administrative decisions and executive them has also increased.