NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

A RESEARCH PROJECT ON

DEVELOPMENT OF JUDICIAL REVIEW IN INDIA

SUBMITTED TO: SUBMITTED BY:

Dr. Sushma Sharma Anupreksha Jain

2017 LLM 07

1
Chapter 2

Development of judicial review; pre independence period

The doctrine of judicial review has been originated and developed by the American
Supreme Court, although there is no express provision in the American Constitution
for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had
the power of judicial review. Chief Justice George Marshall delivering the judgment
stated;

“ Certainly all those who have framed the written Constitution contemplate them as
forming the fundamental and paramount law of the nations, and consequently, the
theory of every such Government must be that an act of the legislature, repugnant to
the Constitution is void”.

There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between

the Constitution and the Acts passed by the legislature, the Courts follow the
Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts
declare void the acts of the legislature and the executive, if they are found in
violation of the provisions of the Constitution.

The doctrine of Judicial Review is not a revelation to the modern world. In India the concept
of Judicial Review is founded on the rule of law which is the proud heritage of the ancient
Indian culture and traditions. Only in the methods of working of Judicial Review and in its
form of application there have been characteristic changes, but the basic philosophy upon
which the doctrine of Judicial Review hinges is the same. In the modern world also where the
doctrine of Judicial Review prevails, the system of its working and the method of its
application are dissimilar in different countries. The basic idea of Judicial Review is that law
should be the generator of peace, happiness and harmony; the ruler has no legal authority to
inflict pain, torture and tyranny on the ruled and to usurp the basic rights of freedom and
liberty of people which are rooted in the ancient Indian civilization and culture. The
fundamental object of Judicial Review is to assure the protection of rights, avoidance of their
violations, socio-economic uplifts and to alert the legislature to be in conformity with the
Constitution. In India such spirit was prevalent.

2
The ancient Indian concept of law is that law is the king of kings, and nothing can be higher
than law by whose aid even the weak prevail over the strong. The vedic concept of
sovereignty was that the State was a trust and the monarch was the trustee of the people. The
address of the people to the monarch at the time of coronations and the reply of the
consecrated king to his people on the occasion of Abisheka (coronation) embodied in the
yajurveda reveals the concept of ideal, kingship and the democratic concept of law and order
which enshrined in the doctrine of Judicial Review. Thus the spirit of Judicial Review can be
drawn from the fundamental concept of law and governance which required ancient India.1

In all history, no republic had as rich a heritage of the system of Judicial Review as in India.
The roots of Judicial Review go long back into ancient India, ancient medieval Europe, pre
Revolution Englands and into colonial and Post-Constitution regimes in the United States of
America and for certain other countries which had a heritage of Judicial Review from the
United States, such as Canada, Australia, Ireland, Japan etc.2 In ancient India the Rule of Law
had a firm stand which meant that the law was above the ruler and that the government had
no constitutional authority to enforce any arbitrary or tyrannical law against the government.
Thus the people of ancient India visualized and cherished the supremacy of law and not the
supremacy of the king.3

In the colonial courts the legality of law in several instances, was vehemently challenged on
the basis of the principle enunciated by Chief Justice Coke. Subsequently, the United States
of America not by any specific and clear provision in the Constitution but by judicial
precedents created before the world a new pattern of democracy and demonstrated to the
world that Judicial Review could act as a poet and powerful check on democracy against
degenerating into autocracy and submitting to a rule of tyranny. India was wiser in
incorporate into the Constitution itself the provision of Judicial Review and by this method
India has established a Constitution which has its individuality and uniqueness in so far as it
lays down new standards of constitutional rule in the modern world. Chief justice Patanjali
Shastri of the Supreme Court of India remarked “while the court naturally attaches a great

1
Ibid., p. 113.
2
Ibid., p. 422.
3
Ibid., p. 422.
3
weight to the legislative judgement it cannot desert its own duty to determine finally
constitutionality of an impugned statute”.4

Judicial Review of India for the first time saw its light in Emperor v. Burah.5 The Calcutta
High Court as well as Privy Council adopted the view that the Indian courts had power of
Judicial Review under certain limitations. This view was further reaffirmed in certain other
case before the Government of India Act of 1935 came into operation. By the Government of
India Act of 1935 Federation was introduced and the experiment in Judicial Review took a
new approach under the Constitution of 1950 Judicial Review assumed an important role in
the Indian democracy. Its working under the present Constitution of India, is a real protection
of liberty and freedom of the people.

A historical interpretation of the constitutional evolution of India, England, the United States
of America, Canada and Australia becomes necessary in order to appreciate the growth,
functioning and practical operation of Judicial Review. The system of Judicial Review in
India too is not an event of sudden emergence but it has a gradual evolution which
predominantly depended on the constitutional thoughts and ideas in the different stages of the
constitutional evolution in India. The constitutional growth the United States of America
reveals that the legislative powers were subject to constitutional limitations and restriction at
each stage of its growth.

In India, since the enactment of Government of India Act, 1858 to the Government of India
Act, 1935, the Indian legislature was subordinate to the English Parliament and any
legislative Acts in India in contravention of the parliamentary directions and restrictions were
void. By the Government of India Act of 1935 federalism was introduced which led to the
expansion of the concept of Judicial Review in India. From 1885, when the Indian National
Congress was established, to the inauguration of the Indian Republic there were constant and
vigorous agitations, for the establishment of federalism and for the State recognition of
fundamental rights. India which had the heritage of the Rule of law from ancient India acted
strenuously and assiduously towards establishing the judicial control of the legislative
powers. As a result the provisions for judicial were incorporated in the constitution itself.

4
The State of Madras v. V.G. Row, AIR 1952, SC 196, para 13.
5
Emperor v. Burah, ILR, Calcutta, 63 (1877).
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Evolution of Judicial Review

1858: Government of India Act of 1858 imposed some restrictions on the powers of the
Governor-General in Council in evading laws, but there was no provision of Judicial Review.
The Court had such power only by implication.

1861: The Indian Councils Act of 1861 provided that the measures passed by the Governor-
General legislative council were not to become valid unless the assent of the Governor
General was received. It also contained constitutional restrictions against the making of any
law or regulation which might have the effect of repealing or in any way affecting the
provisions of the Indian Council Act.

The provision to section 22 of the Indian Council Act 1861 lays down constitutional
restrictions in framing laws which reads: “provided always that the said Governor-General
council shall not have the power of making any law or regulations which shall repeal or in
any way affect any of the provisions of this act …”6

The judiciary had endowment of judicial review, while such powers, the court can use only
by implication and suggestion otherwise the shrinking of law. Under Section 22 of the Indian
Council Act, 1861, it places down the constitutional limitations in mounting legislation by
legislative council of GovernorGeneral, the section of the Act stated that the assumed
association shall not have the gear stick to generate any canon or parameter, which shall
withdraw or any method affect the requirements of this Act. It is clear, therefore, that the
lawmaking council of the Governor-General were passed any measures, which will not be
valid, until the assent of the Governor-General was not received.

1877: judicial Review in India for the first time was mentioned in Emperor v. Burah. 7 The
Calcutta High Court as well as Privy Council adopted the view that the Indian courts had
power of Judicial Review under certain limitations. This view was further reaffirmed in
certain other case before the Government of India Act of 1935 came into operation. The case

6
Banerjee, A.C., Indian Constitutional Document, Vol. 2, Mukherjee & Co. Pvt. Ltd.,
Calcutta, 1961, p. 41.

7
ILR3 Cal. 63 (1877)
5
was decided in Calcutta High Court in which it was held that aggrieved party had right to
challenge the constitutionality of a legislative Act enacted by the Governor-General Council
in excess of the power given to him by the Imperial Parliament. 209 In case of
Emperorv.BurahBookSingh (1877), The Calcutta High Court held that the lawmaking Act
indorsed by the Governor-General, in unnecessary of the resistor expected to him by the
Imperial Parliament, the distressed party had the right to encounter such legitimacy of the
lawmaking Act.

1913: Lord Haldane in 1918 in a Privy Council case laid down the Government of India
cannot by legislation take away the right of the Indian subject conferred by the Parliament
Act i.e. Government of India Act of 1858.8 The Lord Haldane, in the Privy Council case of
Secretary of State for India v. Moment (1913), laid down the judgment, wherein he states that
the rights of Indian peoples celebrating Parliament under the Government of India Act, 1858,
cannot take away through legislation.

1918: Abdur Rahim, officiating Chief Justice of the Madras High Court relying on the Privy
Council case decision observed in 1918 in a special Bench case of Madras High Court that
there was a fundamental difference between the legislative powers of the Imperial Parliament
and the authority of the subordinate Indian Legislature. Any enactment of the Indian
Legislature in excess of the delegated powers or in violation of the limitation imposed by the
imperial Parliament will null and void.9 The Madras High Court’ chief justice, believing on
the Privy Council judgment, wherein the case of Annie Besant v. Government of Madras
(1918), special Bench of Madras High Court held that the any enactment passed by Indian
legislature in violation of the limitations imposed on the legislature or in excess of the
delegation of powers awarded by the Imperial Parliament of India, will be void. The court
also observed in this case that there was essential modification between legislative powers to
the subordinate authority of Indian legislature and the Imperial Parliament of India

8
Secretary of State v. Moment, ILR 40 Cal. 391 (1913).

9
Annie Besant v. Government of Madras, AIR 1918 Mad. 1210 at pp. 1232-1233.

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1930: Co K.N. Haskar and K.N. Pannikar wrote in their book ‘Federal India’ that the
Supreme judicial authority in India should be invested with the power to declare ultravires,
measures which would go against the Constitution.10

1935: Government of India Act of 1935 which came into operation on December 6, 1937
embodied a federal constitution. It was implicitly empowered to pronounce judicially upon
the validity of the statutes, though there was no specific provision for the same. Sir Brojender
Mitter, Advocate General of India in his address to the judges of the Federal Court on the
occasion of its inauguration said that the function of the federal court would be to expound
and define the provisions of the Constitution Act, and as guardian of the Constitution to
declare the validity of invalidity of the statutes passed by the legislatures in India.11 The
Centralized India is the highest jurisdictional authority in India, should be capitalized through
the control to announce void, its processes which would drive in contrast to the Constitution,
as written by the Colonel K.N. Hasker and K.M. Pannikar in the book of Federal India. Sir
Brojendra Mitter, who was the Advocate General of India, said that as protector of the
Centralized Constitution, to announce the unsoundness or legitimacy of the laws accepted by
the Indian legislature, addressed to the judges stated that the Government of India Act, 1935,
that was enforced on 6 th December, 1937, before the Federal Constitution of India,
indirectly authorized to say judicially upon the legitimacy of the statute, while there was not a
definite facility for the same.

The powers of judicial review unambiguously were not so long as in the Federal Constitution
of India, while the Centralized judiciary was commended impliedly, with the occupation of
defining the legitimacy and construing the Constitution under legislative Act. The function of
Federal Court was for scrutinizing the violation of the constitutional direction and to
intermediary in the Central and State affiliation in deference to dissemination of controls,
upon the introduction of federalism in India. There was a main question for involving the
validity of legislative Acts beforehand the Centralized Court. In case of Bhola Prasad v.
Emperor (1942), The Federal Court of India’s Chief Justice believed that the India legislature
within its own sphere had enough power of legislation, same as the Parliament itself has. It
cannot be less true in 1942, while it was true in 1878. 215 The Federal Court and the higher
10
Colonel K.N. Hasker and K.M. Pannikar, Federal India, Martgin Hopkinson Ltd., 1930, p.
147
11
Federal Court Reports, 1939, p. 4.
7
courts of states go through the validity of the Legislative Acts of India, with entirely
jurisdictive self-restraint understanding capability. The Federal Court was intended to build
great tradition and the Indian Supreme Court is the descendant of the Federal Court.
However, there was not unambiguous endowment of judicial review in the Government of
India Act, 1935, in widespread outlook. The legitimate difficulties ascending beforehand the
judiciary required the reworking of judicial review of legislature Acts.

The Government of India Act of 1935 (herein this paragraph referred to as Constitution)
introduced Federal Courts to function as an arbiter in the Central and State relationship and to
scrutinize the violation of the constitutional directions regarding the distribution of the
powers. Even the Constitution didn’t specifically have any provision in this regard, the
Federal court was impliedly entrusted with the function of interpreting the Constitution and to
determine the constitutionality of legislative Act. A large number of cases cropped up
involving the question of the validity of the legislative Acts, were one of the main topics of
decision before the Federal Court and the Privy Council. Maurice Gwyer C.J. of the Federal
Court of India observed “we must again refer to the fundamental proposition enunciated in
(1878) 3 AC 889 (Reg V. Burah) that India legislatures within their own sphere have plenary
powers of legislation as large and of the same nature as those of parliament itself. It was true
in 1878; it can’t be less true in 1942”.12

The Federal Court was introduced by the Government of India Act of 1935 to function as an
arbiter in the Central and State relationship and to scrutinize the violation of the constitutional
directions regarding the distribution of the powers on the introduction of federalism in India.
It was highly essential to have an independent and impartial superior court to maintain
balance between the Centre and the provinces. The power of Judicial Review were not
specifically provided in the Constitution, but the Constitution being federal, the federal court
was entrusted impliedly with the function of interpreting the Constitution and to determine
the constitutionality of legislative Acts. A large number of cases cropped up involving the
question of the validity of the legislative Acts was one of the main topics of decision before
the Federal Court and the Privy Council. Maurice Gwyer C.J. of the Federal Court of India
observed “we must again refer to the fundamental proposition enunciated in (1878) 3 AC 889
(Reg V. Burah) that Indian legislatures within their own sphere have plenary powers of
legislation as large and of the same nature as those of parliament itself. It was true in 1878; it

12

8
can’t be less true in 1942”.13 During the span of a decade of their career as constitutional
interpreters the Federal Court and the High Court of India reviewed the constitutionality of a
large number of legislative Acts with fully judicial self-restraint insight and ability. The
Supreme Court of India as the successor of the Federal court intended the great traditions
built by the Federal court.14 Thus, though there was no specific provision for Judicial Review
in the Government of India Act of 1935 the constitutional problems arising before the court
necessitated the adoption of Judicial Review of legislature Act in a wider perspective. The
constitution of India, in this respect, is more akin to the U.S. Constitution than the British. In
Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can
declare a parliamentary enactment invalid. On the contrary every court is constrained to
enforce every provision" of the law of parliament.

Under the constitution of India parliament is not supreme. Its powers are limited in the two
ways. First, there is the division of powers between the union and the states.
Parliament is competent to pass laws only with respect to those subjects which are guaranteed
to the citizens against every form of legislative encroachment. Being the guardian of
Fundamental Rights and the arbiter of constitutional conflicts between the union and the
states with respect to the division of powers between them, the Supreme Court stands
in a unique position where from it is competent to exercise the power of reviewing
legislative enactments both of parliament and the state legislatures.

Chapter 3
Development of judicial review; post independence
The second stage of development of Judicial Review in India could be attributed to the direct
and massive borrowings from the US Bill of Rights. The Indians saw in the Bill of Rights an
assurance to the minorities of their rights, and a safeguard against arbitrary rule. Constitution
of India of 1950 contained a Bill of Right in Part 3 under the caption ‘Fundamental Rights’
and declared that any law that takes away or abridges any of the fundamental rights shall be

13
Bhola Prasad v. Emperor, AIR 1942 FC17, At 20, Col. 2.
14
Pylee, M.V., The Federal Court of India, P.C. Manaklal and Sons Pvt. Ltd., Bombay, 1966,
p. 327.

9
void15. The rights were defined and restrictions upon them were also defined with precision
so as to leave the least discretion with the courts. Unlike the Constitution of the United States
which gave rights in unqualified terms and left it to courts to define their limit and legitimised
restrictions on them, the Constitution of India enumerated the rights and restrictions.

The makers of the Indian Constitution were apprehensive of the wider role assumed of the
Supreme Court of the United States though interpretation of the ‘Due Process’ clause of the
Fifth Amendment to the Constitution of the United States. They purposely avoided the use of
the words ‘Due Process of Law’ so as not to allow the courts to invalidate laws that might be
disliked by the judges. The debates in the Constituent Assembly show that the makers of the
constitution wanted limited Judicial Review.

Most of the admirers of the Westminster model of democracy wanted the courts in India to
interpret the constitution so as to cause minimal interference to the legislature. The courts
were supposed to interpret the Constitution not in terms of what it should be but in terms of
what it is. The courts need not be concerned about what the effect of an interpretation will be
but should state what law is. If the law was to be changed, it was the function of the
legislature. This was the black letter law tradition in which law is divorced from morality.
The function of the court is conceived as that of the mere interpreter of the constitution with
emphasis on the letter rather than on the spirit of the constitution. This is what makes the
court a powerful instrument of judicial review under the constitution. As Dr. M.P. Jain has
rightly observed: "The doctrine of judicial review is thus firmly rooted in India, and
has the explicit sanction of the constitution."

In the framework of a constitution which guarantees individual Fundamental Rights,

divides power between the union and the states and clearly defines and delimits the powers
and functions of every organ of the state including the parliament, judiciary plays a very
important role under their powers of judicial review.

The power of judicial review of legislation is given to the judiciary both by the political
theory and text of the constitution. There are several specific provisions in the Indian
constitution, judicial review of legislation such as Articles 13, 32, 131-136, 143, 226, 145,
246, 251, 254 and 372.

15
Article 13 (1) and (2)

10
Article 372 (1) establishes the judicial review of the pre-constitutional legislation
similarly. Article 13 specifically declares that any law which contravenes any of the
provision of the part of Fundamental Rights shall be void. Even our Supreme Court has
observed, even without the specific provisions in Article 13.

The court would have the power to declare any enactment which transgresses a
Fundamental Right as invalid. The Supreme and high courts are constituted the
protector and guarantor of Fundamental Rights under Articles 32 and 226. Articles
251 and 254 say that in case of in consistent if between union and state laws, the state law
shall be void.

Article 13 of the Constitution declares that any law that encroaches on any of the
fundamental rights shall be void, although it does not declare who has the authority to make
such a determination. Additionally, the earliest proposals on fundamental rights emphasized
that they must be justiciable and the resulting Constitution included among the fundamental
rights the right to petition the Supreme Court directly in matters relating to the fundamental
rights. Speaking of this right to petition the Supreme Court directly on fundamental rights,
Dr. B.R. Ambedkar declared, If I was asked to name any particular Article of the Constitution
as the most important –an Article without which this Constitution would be a nullity– I could
not refer to any other Article except this one … It is the very soul of the Constitution and the
very heart of it.16

Article 13 of Constitution is read as:

“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

16

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force of law; laws in force includes laws passed or made by Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under
Article 368 Right of Equality”

Article 32 and 226 also provide procedure to get the remedy against violation of fundamental
rights. While article 32 is the original jurisdiction of Supreme Court, a petition can be
preferred to High Courts under article 226. There are two main differences between writ
jurisdiction under Articles 32 and 226. Firstly, the right to move the Supreme Court under
Article 32 is itself a fundamental right and thus, in such condition ordinarily the Supreme
Court cannot refuse to grant this remedy. However, the right to move the High Court under
Article 226 is not itself a fundamental right. The remedy provided in Article 226 is a
discretionary remedy and cannot be claimed as a matter of right. Secondly, the remedy
provided under Article 32 is available only for the enforcement of the fundamental right
guaranteed by part III of the Constitution while the remedy provided under Article 226 is
available for the enforcement of the fundamental rights and also for the enforcement of any
other purpose. Thus, the writ jurisdiction of the High Court is wider than of the Supreme
Court.

Other Articles like 132 , 133 and 134 also notably contributed to the power the Supreme
Court has appellate jurisdiction under Articles 132 (1), 133 (1), and 134 (1) of the Indian
Constitution to deal with the question of the constitutionality of a law made by the
Legislatures. Under Article 132 of the Constitution, an appeal lies to the Supreme Court from
any judgment, decree, or final order of any High Court, in the territory of India in any civil,
criminal or other proceedings, provided that it involves a substantial question of law as to the
interpretation of the Constitution, and the High Court certifies that effect.

Where article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to
the State list, article 245 states the powers of both Parliament and State legislatures are
subject to the provisions of the constitution.

Under the Constitution of India, 1950, the scope of Judicial Review has been extremely
widened. The Courts in India, in the present democratic setup, is the most powerful organ for

12
scrutinizing the legislative lapses. The spirit of the protection of individual liberty and
freedom yielded a great influence on the constitutional agitation’s in India. The ancient
Indian heritage is rooted in the Constitution of India, 1950, in which are enshrined the various
provisions of individual liberty and freedom against the State. Under the impact of ancient
Indian heritage the Constitution of India of 1950 evolved a unique system of Judicial Review.
The fundamental subject of Judicial Review in the present constitution of India relates to :
i) Enactment of legislative Act in violation of the constitutional mandates regarding
distribution of powers.
ii) Delegation of essential legislative power by the legislature to the executive or any other
body.
iii) Violation of fundamental rights.
iv) Violation of various other constitutional restrictions embodied in the constitution.
v) Violation of implied limitations and restrictions.

The world of the Constitution is supreme in India and the legislative and executive Acts to be
valid will have to conform to it. The only agency capable of upholding the supremacy of the
Constitution being the national judiciary, the process of Judicial Review is expected to play a
no mean role in the working and development of the constitution”. The Indian judges have
enough power under the Constitution to declare a legislation void if it is in violation of the
Constitution or if the law is highly tyrannous and arbitrary against the intention of the
Constitution and the sovereign people. Much depends upon the way the court approaches the
matter and the degree of self-restraint the court exercises. The constitution does not limit the
powers of the Indian courts in the matter of Judicial Review but the constitution has left the
matter entirely on the dignity and rational thinking of the courts.

Just after the Constitution of India of 1950 came into force the Calcutta High Court in a
special Bench case gave a memorable decision by which the entire Bengal Criminal
Amendment Act of 1930 was declared void. The Court held – “The legislatures in this
country have only those powers of legislation which are bestowed upon them by the
Constitution Act. If they pass an Act in excess of these powers, the Act becomes void to that
extent. Under our Constitution, the Court i.e. the judiciary is to decide this and nobody else.
We recognize that great powers necessarily involve grave responsibilities, but we are not
dismayed. Amidst the strident clamour of political strife and the tumult of the clash of
conflicting classes we must remain impartial. This court is no respecter of persons and its

13
endeavour must be to ensure that above this clamour and tumult, the strong calm voices of
justices shall always be head”.

This view of the Calcutta High Court has been echoed in the several decisions of the Supreme
Court and the High Courts of different States. In 1958 even the law commission adopted the
same view – “The Constitution in express terms requires the courts to act as supervisory body
in the matter of laws alleged to encroach upon the exercise of fundamental rights. The lines
as to how far a law shall go in derogation of the citizens fundamental rights is, according to
the Constitution, to be drawn by more other then the judiciary. The government and their
policies may change what contributes to the stability of the States is its judiciary. A nation
may afford to lose its confidence in its king or even in its Parliament but it would be an evil
day if it loses its confidence in its judiciary”.17

The Republic of India, which had adopted the Constitution, in the year 1950 had the special
provisions of judicial review, in case there is breach of fundamental rights, constitutional
violation, distribution of separation of power and other constitutional restriction under Article
threaten, Article thirty-two and Article two hundred twenty-six of the Constitution. The
judiciary of India are the supplementary influential structure for examining the statutory gaps,
in the contemporary selfgoverning arrangement. The Indian Constitution,1950 under the
impression of antique Indian inheritance had implemented the exceptional structure of
judicial review. The indispensable trouble of judicially examination, in the contemporary
selfgoverning constitutional structure of India, is associated to the allocation of powers, to the
executives or any other body, by the legislature, enactment of statute with destruction of
constitutional mandates in respect of distribution of powers, violation of fundamental rights,
violation implicated restrictions, limitation and various other constitutional restrictions
incorporated in the Indian Constitution.

The power of judicial review was firstly exercised by Supreme Court in A.K. Gopalan v.
State of Madras,18 the first case in which the power of judicial review was used by the
Supreme Court, Chief Justice Kania pointed out that it was only by way of abundant caution
that the farmers of the Indian Constitution inserted the specific provisions in Article 13. He

17
Law Commission Report, dated 26.9.1958, at p. 674, Para 7, vol. II.
18

14
observed, “In India it is the Constitution that is supreme and that a statute law to be valid
must be in all conformity with the constitutional requirements and it is for the judiciary to
decide whether any enactment is constitutional or not.”

Chapter 4

Judicial review as a basic feature of the Constitution

Judicial review is a great weapon in the hands of judges. It comprises the power of
a court to hold unconstitutional and unenforceable any law or order based upon such
law or any other action by a public authority which is inconsistent or in conflict with
the basic law of the land. In fact, the study of constitutional law may be described as
a study of the doctrine of judicial review in action The courts have power to strike
down any law, if they believe it to be unconstitutional.

Under our Constitution, judicial review can conveniently be classified under three heads19: -

(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 case20, Sajjan Singh case21, Golak Nath case22, Kesavananda Bharati
case23, Minerva Mills case24, Sanjeev Coke case25 and Indira Gandhi case26. The test of
validity of Constitutional amendments is conforming to the basic features of the
Constitution. The basic function of the courts is to adjudicate disputed between
individuals and the state, between the states and the union and while so adjudicating,
the courts may be required to interpret the provisions of the constitution and the laws,
and the interpretation given by the Supreme Court becomes the law honoured by all
courts of the land. There is no appeal against the judgement of the Supreme Court.

In Shankari Prasad vs. Union of India27 the first Amendment Act of 1951 was
challenged before the Supreme Court on the ground that the said Act abridged the right to

19
Justice Syed Shah Mohammed Quadri, Judicial Review of Adminstrative Action, (2001) 6 SCC (Jour) 1.
20
Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
21
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
22
Golak Nath v. State of Punjab, AIR 1967 SC 1643
23
Kesavananda Bharati v. Union of India, AIR 1973 SC 1461
24
Minerva Mills v. Union of India, AIR 1980 SC 1789
25
Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147
26
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
27
AIR 1951 SC 458

15
property and that it could not be done as there was a restriction on the amendment of
Fundamental Rights under Article 13 (2).

The Supreme Court rejected the contention and unanimously held. "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."

In Sajan Singh's case28, the corupetence of parliament to enact 17th amendment was
challenged before the constitution. Bench comprising of five judges on the ground that
it violated the Fundamental Rights under Article 31 (A).

Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when article
368 confers on parliament the right to amend the constitution the power in question can be
exercised over all the provisions of the constitution, it would be unreason about to hold that
the word law' in article 13 (2) takes in amendment Acts passed under article 368.

Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws,
and could not be struck down by the application of article 13 (2).

The historic case of Golak Nath vs. The state of Punjab29 was heard by a special bench of
11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was
challenged.

The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared
that parliament under article 368 has no power to take away or abridge the
Fundamental Rights contained in chapter II of the constitution the court observed.

(1) Article 368 only provides a procedure to be followed regarding amendment of the
constitution.

(2) Article 368 does not contain the actual power to amend the constitution.

28
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
29
AIR 1967 SC 1643

16
(3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry
97 of the union list.

(4) The expression 'law' as defined in Article 13 (3) includes not only the law made
by the parliament in exercise of its ordinary legislative power but also an amendment of the
constitution made in exercise of its constitution power.

(5) The amendment of the constitution being a law within the meaning of Article 13 (3)
would be void under Article 13 (2) of it takes away or abridges the rights conferred
by part III of the constitution.

(6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the
seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and,
therefore, void under Article 13 (2) of the constitution.

(7) Parliament will have no power from the days of the decision to amend any of the
provisions of part III of the constitution so as to take away or abridge the
Fundamental Rights enshrined there in.

The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in
the Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of
law to change or destroy the entire fabric of the constitution through the instrumentality of
parliament's amending power.

The judgment in I.R. Coelho v. the State of Tamil Nadu30 has answered this question by
establishing the pre-eminence of judicial review of each and every part of the Constitution.
The Court has laid down a two-fold test: (a) whether an amendment or a law is violative of
any of the Fundamental Rights in Part III (b) if so, whether the violation found is
destructive of the basic structure of the Constitution. If the court finds that the
impugned enactment damages the basic structure of the Constitution, it shall be
declared void, notwithstanding the fictional immunity given to it by Article 31B.Thus,
the basic structure doctrine requires the State to justify the degree of invasion of
Fundamental Rights in every given case; and this is where the court's power of judicial
review comes in.

30
(1999) 7 SCC 580

17
In Minerva Mills case31 the Supreme Court by a majority decision has trunk down section 4
of the 42nd Amendment Act which gave preponderance to the Directive Principles over
Articles 24, 19 and 31 of part III of the constitution, on the ground that part III and part IV of
the constitution are equally important and absolute primacy of one over the other is not
permissible as that would disturb the harmony of the constitution.

The Supreme Court was convinced that anything that destroys the balance between the two
part will IpsoTacto destroy an essential element of the basic structure of our 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. The researcher’s
emphasis is in this direction.

Under the traditional theory, courts of law used to control existence and extend of
prerogative power but not the manner of exercise thereof. That position was, however,
considerably modified after the decision in Council of Civil Service Unions v. Minister for
Civil Service32, wherein it was emphasized that the reviewability of discretionary power
must depend upon the subject-matter and not upon its source. The extent and degree of
judicial review and justifiable area may vary from case to case33.

At the same time, however, the power of judicial review is not unqualified or
unlimited. If the courts were to assume jurisdiction to review administrative acts which
are ‘unfair’ in their opinion (on merits), the courts would assume jurisdiction to do the very
thing which is to be done by administration. If judicial review were to trespass on the
merits of the exercise of administrative power, it would put its own legitimacy at risk.

It is submitted that the following observations of Frankfurter, I. in Trop v. Dulles34

lay down correct legal position:

31
(1980) 3 SCC 625
32
(1984) 3 All ER 935: (1984) 3 WLR 1174: (1985) AC 374.
33
Craig, Administrative Law, (1993), p. 291.
34
(1985) 35 US 86.

18
“All power is, in Madison’s Phrase ‘of an encroaching nature’. Judicial Power is not
immune against this human weakness. It also must be on guard against encroaching
beyond its proper bounds, and not the less so since the only restraint upon it is self
restraint.”

Extent Of Judicial Review In India

From 1950 to 1975, the Indian Supreme Court ruled that more than one hundred federal and
state case Laws, constituted unconstitutional. The judiciary in the constitutional system, made
a very important position. Indian Supreme court on a series of allegations of violation of
basic human rights under the Constitution of India conducted a judicial review of cases. The
Supreme Court's position is that any attempt to amend the Constitution related to impact of
civil rights legislation or regulations are subject to subject to judicial review. India has also
restricted judicial review of executive and legislative powers to play a role. Judicial review
of legislation from the early review extends to all acts of government or
administration. It can be said that in addition to specific case, the Court exercise their
restraint of judicial power, judicial review has almost no borders.

Judicial review of political issues:

In the early practice of judicial review, Supreme Court of India was that if the case
involved political issues, does not apply to judicial review. But then this position has
changed slowly, in Keshavananda Bharathi case, the Court noted that "involves tampering
with the Constitution judicial review of cases may involve political issues, but only
the court has the power to judge cases. interpret the Constitution's powers should be
attributed to the State jurisdiction ".

The Court's position in the later case in a series of further specific, as in S. R. Bommai case,
the court decision that "The state Governor, the President formed the basis of his political
views may be based on judgments, it is not appropriate for judicial review. If Justice
will fall into a complex political disputes, which the court should be avoided. So , the court
can not forbid the President to exercise the powers conferred on him by the Constitution,
unless the evil abuse of power, but the court also noted that" judicial review although it can
not review the President's subjective judgments, but the president may review the basis on
which to make decisions.”

19
From these precedents it can be seen that the Indian courts in dealing with the basic legal and
political position of the judiciary in finding significant matters involving politics should be
careful to play its role of judicial review, and some restraint in handling cases, to avoid use of
judicial jeopardize the constitutional review powers the legislative and executive powers, but
the judiciary but also to minimize the abuse of presidential power judicial review and
supervision should be ultra vires the right balance.

The basic principles of judicial review of constitutional status: In 1973, the Supreme
Court in the landmark Keshavananda Bharathi v. State of Kerala35 case presented the
basic principles of judicial review. Legislature can amend the constitution, but cannot change
the basic principles of the Constitution. If the violation of basic constitutional principles,
constitutes unconstitutional is generally believed that the basic principles of the
Constitution of India has the following five basic points:

the supremacy of the Constitution, republican and democratic form of government, secular
constitution, legislative, administrative and judicial separation of powers and federalism.
These basic principles are throughout the Preamble to the Constitution of India and
the entire framework of the Constitution. The Constitution is built on the basic
principles citizens on the basis of freedom and dignity, the Indian Constitution, the Law
may not deprive citizens of any form of freedom and dignity. The basic principle of the
Constitution is only a matter of principle, not exhaustive revision of the constitution limits the
power of all cases.

In the subsequent series of cases, the court of judicial review is further recognized as
one of the basic principles of the Constitution. The Court in some cases held that
judicial review is a constitutional fundamental and essential feature. If the judicial
review is absolutely deprived of the Constitution had no vitality. The Court further
pointed out that if the Supreme Court ruled out legislation enjoy the constitutional right to
judicial review, and with no other alternative mechanisms for judicial review is in
violation of the basic principles of the Constitution, the Congress, the legislation goes
beyond the scope of legislative power.

In 1997 in, L. Chaiadra Kumar V Union of India36 case, the Constitutional Court
more clearly stated that "the Constitution and Articles 32 &226 were granted to the

35
AIR 1973 SC 1461
36
(1997) 3 SCC 261

20
Supreme Court and High Court judicial review of existing legislation is a
constitutional right to an integral and essential element judicial review itself
constitutes one of the basic principles of the Constitution. Indian Supreme Court precedent
established by judicial review the basic principles of the Constitution, this Constitution
and the rule of law in India's role cannot be ignored, for enhancing the legislative and
executive powers of judicial checks and balances play an important role. But given the
absolute power of judicial review, in fact distorted the balance of power theory, to some
extent, led to the expansion of judicial review and abuse of power.

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
Constitutional Amendment of 1976 among other things had added a clause to Article 368

21
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.

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.

Judicial activism the expansion of judicial review: After 80 years of the 20th century,
public demand for government administration in strict accordance with the Constitution
and laws, hoping to promote administrative reform through judicial growing louder and
louder, the judiciary is also required in response to the public judicial activism began to take
position. In the subsequent case of Menaka Gandhi37, the Supreme Court to promote the
implementation of the Constitution in terms of protection of citizens basic human rights, and
to seek India's laws in line with the global trend of legal protection of basic human

37
AIR 1978 SC 597

22
rights. The court of human rights protection thanks to a series of successful litigation
procedural law reform, as introduced in the procedural law of social activities on litigation,
public interest litigation and other new design of the system, so that vulnerable groups in
society can more easily enter the judicial process.

Indian court has also sought, through judicial interpretation of constitutional provisions
to achieve its goals. 80 years in the 20th century and early 90s, the Indian court
would change its traditional law enforcement agencies as a simple nature of many of
its political decision to the Indian society, the enormous social and economic change.
While judicial activism has played an active court supervision of administrative and
legislative powers, the role of the effective exercise of judicial power, to some extent
contributed to the improvement of the rule of law in India.

But on the other hand, the Supreme Court's new role of judicial activism also has
been criticized, and many Critics accused him of breach of the principle of separation
of powers, especially the Supreme Court administrative action policies and guidelines
established by the widely criticized, is considered by more powers of the executive and
legislative areas. As a result, limit the power of judicial review has become India's new task
of constitutional law.

Chapter 5
Conclusion
It is necessary to distinguish between ‘judicial review’ and ‘judicial control’. The term
judicial review has a restrictive connotation as compared to the term judicial control. Judicial
review is ‘supervisory’, rather than ‘corrective’, in nature. Judicial review is denoted by the
writ system which functions in India under Arts. 32 and 226 of the Constitution. Judicial
control, on the other hand, is a broader term. It denotes a much broader concept and includes
judicial review within itself. Judicial control comprises of all methods through which a
person can seek relief against the Administration through the medium of the courts,
such as, appeal, writs, declaration, injunction, damages statutory remedies against the
Administration38.
Therefore judicial review is a fundamental principle of law that every power must be
exercised within the four corners of law and within the legal limits. Exercise of
38
M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the Subject
containing
case-law reference (Indian & Foreign), 6th Ed., Wadhwa and Company Nagpur, New Delhi, 2007, p. 1779.

23
administrative power is not an exception to that basic rule. The doctrines by which those
limits are ascertained and enforced form the very marrow of administrative law. Unfettered
discretion cannot exist where the rule of law reigns. Again, all power is capable of abuse, and
that the power to prevent the abuse is the acid test of effective judicial review.39

Judicial Review is developed on the ideological foundations of Constitutional Supremacy.

However its inappropriate use and recent versions such as Judicial Interpretation has leaded
its failure. This concept was evolved to protect the basic natural and civil rights of the
citizens from the tyranny of Legislature and limit the parliamentary sovereignty. The recent
striking down of the various legislations and new trend of making laws by Supreme Court has
left many debates endless.

When Judges start thinking they can solve all the problems in society and start performing
legislative and executive functions (because the legislature and executive have in their
perception failed in their duties), all kinds of problems are bound to arise. Judges can no
doubt intervene in some extreme cases, but otherwise they neither have the expertise nor
resources to solve major problems in society. Also, such encroachment by the judiciary into
the domain of the legislature or executive will almost invariably have a strong reaction from
politicians and others.

Thus the Paper conclusively proposes that there is a dire need to reconsider the concept of
Judicial Review and Judicial Activism.

39
Wade, Administrative Law, (1994), pp. 39-41

24