DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

2017-18

Basics of Legislation 

TITLE OF PROJECT

JUDICIAL REVIEW IN INDIA

SUBMITTED BY: UNDER THE GUIDANCE OF:

Vijay Singh Mr. Shashank Shekhar

Roll No.: 170101159 Assistant Professor (Law)

BA.LLB (HONS.) RMLNLU

1st Semester Lucknow.
CONTENTS

1. Acknowledgement

2. Introduction

3. Features of Judicial Review in India

4. Criticism of Judicial Review

5. Critical Evaluation of Judicial Review in India

6. Limitations of Judicial Review in India

7. Conclusion

2
 ACKNOWLEDGEMENT

I would to take this opportunity to thank Mr. Shashank Shekhar Sir for giving me such an
interesting topic to work on, and for her valuable support, guidance and advice which helped in
completing this project. This project has helped me understand certain aspects of the subject and
broadened my knowledge in the field of law. I would also like to thank the library staff for
working long hours to facilitate us with required material which goes a long way quenching our
thirst for education. I would also like to thank my seniors for guiding me through tough times
they themselves have been through, and lastly I would like to thank my family for their support
and my friends for keeping alive the spirit of competition in me.

-Vijay Singh

3
 INTRODUCTION

The creation of the Federal Court of India by the Constitution Act 1935
was a landmark in the judicial and legal history of British India. The evolution of the
courts in India under the British rule and the progressive application of the British
common law to India by enactment of laws, have left their indelible mark on legal history
of India during last 200 years. But the creation of the Federal Court was the most
outstanding contribution of the British on the eve of their leaving this country on India
attaining independence.1

The Constitution Act of 1935 envisaged a federal form of government,

with clearly defined spheres of legislation as between the federating units and the Centre.
It was necessary to create an All India Court to adjudicate upon in the conflicting claims
of those units in the matter of legislation and to interpret the Constitution with particular
reference to the three lists, which sought to demarcate the Central from the Provincial ambit
of legislative jurisdiction.2 In fact of all the federal agencies envisaged under the
Government of India Act, 1935 the federal court was the only one that held its abiding
influence in the Indian Constitution.

1
Pylee, M.V.. Federal Court of India, Vikas Publication House Delhi 1996, p. IX.

2
Ibid. p. ix.

4
 HISTORY OF JUDICIAL REVIEW IN INDIA

The judicial system that prevailed in India until the inauguration of

Federal Court had no federal characteristic. Infact, the British East India company in its
early days, had very little to do in the field of administration of justice, as its activities
were of a purely commercial character. The company was confined to its officers and
men regarding the maintenance of discipline for which the charter of 1600 had
empowered the company. But with the increase in the number and importance of the
Company’s settlements in the East, need was felt for the exercise of regular judicial
powers over the Company’s servant on land. The Court was empowered to exercise civil,
criminal, ecclesiastical, admiralty and equity jurisdictions over the inhabitants of Calcutta
and over the British subjects in the provinces of Bengal, Bihar and Orissa. The Mayor’s
Court were replaced by the Recorder’s Court in 1787.3

The peculiarity of the Indian judicial system at this time was the
coexistence of two system of Courts, namely the Supreme Court in the Presidency Town
and Sadar Court in the province. Even before the Round Table Conferences,
constitutionalists gave expression on the formation of a federal court as an integral part
of the federation. The main problem that faced them was the power and function of
federal judiciary. There were several pattern to be viewed and considered but American
pattern was copied with some modification.4

American system established an independent judiciary, supreme in its

decisions regarding constitutional matters. The American Constitution prohibits the
legislative absolutism of a majority which might become the master of the Constitution,
the judge of its meaning and application. Condition prevailing in India were such that it

3
Ibid. pp. 64-65.

4
bid., pp. 65-68.

5
adopted some modified form of the American pattern to suit Indian needs. There were
three important problems which faced the Indian constitutionalist.5

The protection of rights of minorities was an immensely important problem. If the

legislature was allowed to be the judge of its own Acts, it would nullify the guarantees to
the various groups whose power would be negligible in the legislatures. The practice of a
parliamentary government which would be led by a Cabinet dominated by one section
was likely to hold the others at its mercy.

The unquestioned supremacy of the federal legislature, with a

federal executive at its behest, might at any time create a serious encroachment on
provincial autonomy. This might spoil not only self government, but also good
governance.

The peculiar position of the Indian States was to be

accommodated in the new set up thus to protect the inherent rights of the Indian States
and to protect the cultural and religious liberty as well as political rights of the minorities
the Indian Constitution had to provide a judicial machinery explicitly vested with the
authority to declare ultra vires any legislation which infringe the Constitution.

The minorities also wanted a federal court with independence to

safeguard the rights guaranteed to them by the Constitution. India with its vast area,
enormous population, diversity of languages, religion, races and culture should have a
constitutional machinery which would safeguard these interest. Therefore, it was only a
primary requisite to ensure that body entrusted with the task of interpreting and guarding
the Constitution and determining the disputes between the various units of the federation
should be impartial and independent of the Federation the Provinces and federated
States.6

The idea of formation of a federal judicature in India and England

took concrete shape during the deliberation of the Second Round Table Conference. The
members were unanimous in their opinion that the federal court should be an
indispensable link in the federal chain. The subject of was further thoroughly discussed

5
Ibid. p. 69.

6
Ibid. p. 71.

6
by the federal structure committee of the Second Round Table conference, and they came
to an arrangement that the federal courts jurisdiction must be both original and appellate.

The British Parliament enacted on 2 August 1935 that ‘there shall

be a Federal Court for India consisting of a Chief Justice of India and such number of
other judges as His Majesty may deem necessary’. In pursuance of this enactment, the
Federal Court was duly inaugurated on October 1937.7 The first sitting of the Federal
Court makes an epoch in the history of India. The establishment of the Court will
introduce a new element in the jurisprudence of one of the oldest and greatest
civilizations of the world. In the exercise of both its original and appellate jurisdiction the
Court will have the responsibility and opportunity of displaying in an eminent degree,
those qualities of judicial capacity, fairness and dignity. Thus the end of the year 1937
marked the emergence of an all India-judicature and this is a hall-mark in India
constitutional history because of the valuable role that has been played by the Federal
Court in the field of Constitutional advancement in India.8

7
Ibid., p. 78.

8
Ibid., p. 79.

7
 FEATURES OF JUDICIAL REVIEW

The essential feature of federation is the division of powers between

the national government and the State governments but it is certain that in any federation
there will be dispute about the terms of the division of powers. In a federal Constitution
there is division of power between the Centre and the State and there is every possibility
of dispute between the Centre and State government so in all such cases there must be a
proper agency to settle all these disputes and define the exact sphere of each Government
(State) and its respective authority.9 It is the federal judiciary, more than any other organ of the
government that interprets the constitutional document. The judiciary in a federation is
therefore, an unavoidable institution to interpret the Constitution and thereby to resolve
the dispute that arises between the States.

The doctrine of Separation of Powers which is a dominant features of

the American Constitution, had helped the Supreme Court a great deal in this connection.
In Canada, Australia and India the existence of a parliamentary government, which
ensures the responsibility of the executive to the legislature, minimizes the possibilities of
conflict between the various agencies of the government. However, the position of the
federal judiciary in these countries is more or less the same and is similar, to a great
extent, to that in the United States regarding constitutional interpretation.10

The position in Canada, Australia and India is much different from that
of the United States or Switzerland. In these federations the judges of the federal
judiciary are appointed by the federal executive as in the U.S. but there is no necessity of
an approval by the federal legislature like the power exercised by American Senate. In
fact, in these countries there is no chance of a friction between the federal executive and

9
Ibid. pp. 11-12.

10
Ibid. p. 21.

8
the legislature on this matter, as they have a parliamentary system of government which
ensures harmony between the executive and the legislature.11

Thus it is obvious that in most federations the judiciary becomes

the pivot on which the constitutional arrangements of the country turns. Its proper
appreciation of this pre-eminent position that Dicey has asserted that “federalism means
legalism – the predominance of the judiciary in the Constitution, prevalence of a spirit of
legality among the people.12

The judiciary stands on a level with the executive and the legislature
therefore, the courts can and must determine the limits of authorities, both of the
executive and of the legislatures. Dicey said that the judges are not only guardians of the
Constitution but also the master of the Constitution.

11
Ibid. p. 24.

12
Ibid. pp. 26-27.

9
 CRITICISMS OF JUDICIAL REVIEW IN INDIA

1. Undemocratic:
The critics describe Judicial Review as an undemocratic system. It empowers the court to decide
the fate of the laws passed by the legislature, which represent the sovereign, will of the people.

2. Lack of Clarity:
The Constitution of India does not clearly describe the system of Judicial Review. It rests upon
the basis of several articles of the Constitution.

3. Source of from Administrative Problems:

When a law is struck down by the Supreme Court as unconstitutional, the decision becomes

effective from the date on which the judgement is delivered. Now a law can face Judicial Review
only when a question of its constitutionality arises in any case being heard by the Supreme
Court.

Such a case can come before the Supreme Court after 5 or 10 or more years after the

enforcement of that law. As such when the Court rejects it as unconstitutional, it creates
administrative problems. A Judicial Review decision can create more problems than it solves.

4. Reactionary:

10
Several critics regard the Judicial Review system as a reactionary system. They hold that while

determining the constitutional validity of a law, the Supreme Court often adopts a legalistic and
conservative approach. It can reject progressive laws enacted by the legislature.

5. Delaying System:
Judicial Review is a source of delay and inefficiency. The people in general and the law-

enforcing agencies in particular sometimes decide to go slow or keep their fingers crossed in

respect of the implementation of a law. They prefer to wait and let the Supreme Court first
decide its constitutional validity in a case that may come before it at any time.

6. Tends to make the Parliament less responsible:

The critics further argue that the Judicial Review can make the Parliament irresponsible as it can

decide to depend upon the Supreme Court for determining the constitutionality/ reasonableness
of a law passed by it.

7. Fear of Judicial Tyranny:

A bench (3 or 5 or 9 judges) of the Supreme Court hears a judicial review case. It gives a

decision by a simple majority. Very often, the fate of a law is determined by the majority of a

single judge. In this way a single judge’s reasoning can determine the fate of a law which had
been passed by a majority of the elected representatives of the sovereign people.

8. Reversal of its own decisions by the Supreme Court:

It is on record that on several occasions the Supreme Court reversed its earlier decisions. The

judgment in the Golaknath case reversed the earlier judgments and the judgment in the

Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment

was held valid, then invalid and then again valid. Such reversals reflect the element of
subjectivity in the judgments.

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On all these grounds the critics strongly criticise the system of Judicial Review as it operates in
India.

EVALUATION OF JUDICIAL REVIEW IN INDIA

1. Judicial Review Power is used by both the Supreme Court and High Courts:
Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final

power to determine the constitutional validity of any law is in the hands of the Supreme Court of
India.

2. Judicial Review of both Central and State Laws:

Judicial Review can be conducted in respect of all Central and State laws, the orders and
ordinances of the executives and constitutional amendments.

3. A Limitations:
Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of
the Constitution.

4. It covers laws and not political issues:

Judicial Review applies only to the questions of law. It cannot be exercised in respect of political
issues.

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5. Judicial Review is not automatic:
The Supreme Court does not use the power of judicial review of its own. It can use it only when

any law or rule is specifically challenged before it or when during the course of hearing a case
the validity of any law is challenged before it.

6. Decisions’ in Judicial Review Cases:

The Supreme Court can decide:

(i) The law is constitutionally valid. In this case the law continues to operate as before, or

(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from
the date of the judgment.

(iii) Only some parts or a part of the law is invalid.

In this case only invalid parts or part becomes non-operative and other parts continue to remain

in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot
operate without it, then the whole of the law gets rejected.

7. Judicial Review Decision gets implemented from the date of Judgement:

When a law gets rejected as unconstitutional it ceases to operate from the date of the judgment.

All activities performed on the basis of the law before the date of the judgment declaring it
invalid, continue to remain valid.

8. Principle of Procedure established by Law:

Judicial Review in India is governed by the principle: ‘Procedure Established by Law’. Under it

the court conducts one test, i.e., whether the law has been made in accordance with the powers

granted by the Constitution to the law-making body and follows the prescribed procedure or not.
It gets rejected when it is held to be violative of procedure established by law.

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9. Clarification of Provisions which a rejected law violates:
While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the

constitution which it violates. The court has to clearly establish the invalidity of the concerned
law or any of its part.

LIMITATIONS OF JUDICIAL REVIEW

The doctrine of judicial review is prevalent where countries have a written Constitution. India is
one of them. In India, the Constitution is the superlative rule. In the least rule, which is
mismatched by means of the constitutional provisions is declared void. The higher courts have
the powers of judicial review, which is highly complex and extraordinary.

The higher court can use the power of judicial review against the public authority, may it be the
authority of government, quasi-judicial or constitutional. Now, the concept of judicial review has
under gone a big change, the accurate sense of judicial review is no longer effective. The public
authorities discharge their duties; they have enough space for suitable discretion. This is the big
drawback in our system, that the people, who are unsatisfied from the decision of public
authority, take it to the court. The court does not provide benefit to the other affected people.

The judiciary, under the constitutional provisions exercises powers with checks and balances. It
means the judiciary is working in an adjustable position to assessment the substance of judiciary,
executive and lawmaking authorities. The court never prefers water tight, unyielding, segment.
Under India’s constitutional Article one hundred thirty-six and Article thirty-two, the rheostat of
review judicially is specified to the Indian Apex Court.

Article 226 and Article 227 provide power of review judicially to the higher courts of states. The
Apex Court in L. Chandra Kumar v. Union of India (1997), case has made limitation in the
power of review judicially provided under the Constitution. The court is comprised of the
influences of judicial review only in three aspects: judicial review for legal pronouncement,
judicial review for legislative action and judicial review for executive action.

The judicial review contains the powers of higher courts to scrap enforceable or unconstitutional
laws passed by the public authority, which create conflict or is unreliable with the rudimentary

14
establishment of legislation, under the Constitution of India. The opportunity and assortment of
judicial review differs from case to case. Its roots go back in history. The judicial review is a
complex matter. Hence, it itself creates limitations. The courts exercise the powers of judicial
review and forcefully guard citizen rights, human rights, fundamental rights and many other
statutory and non-statutory powers of government organizations, such as control over various
kind of assets and property

The India’s Constitution has adopted numerous limitations within the controls of judicial review
right from its inception. The S. C. I., in its several judgements has reflected sovereign powers of
law lords, executive and legislature. The controls of judicial review have been so long as to the
S. C. I. and the higher judiciary of the states, under the establishment of the Constitution of India.
Several people believe that the judicial inquiry is find out validity of legislation. It is a protection
against the oppression of the majority of people. The judges never check the social and economic
situations of the people. They follow statute strongly.

In case of J. P. Bansal v. State of Rajasthan (2003), the appellant was appointed Judicial
Member of the Tribunal and subsequently was appointed as acting chairman, until appointing
regular chairman. The appellant demanded compensation for termination of function as
Chairman.

The Supreme Court stated that the court interprets the Constitution and relish the liberty. Such
liberty is not obtainable in the interpretation of the statute. The impartiality of the judiciary
threatens public interest, while the partiality is the part of rule of law. If judge, in interpretation
provides, its own amendment to the statute, it is injurious to the public interest. There is no
ambiguity in the statute, no obscurity, words are clear and intention of legislature clear. In such
condition, here is no possibility for law of land to change or alter or modernize the task in
statutory provision. The Supreme Court stated that the judges should not play the role of
legislature, only for showing judicial velour. The court stated, the judges should remember that
the thin line is available between legislature work and adjudication work, that line should not be
crossed by judges. That line must be maintained clearly. In State (Govt. of NCT of Delhi) v. Prem
Raj(2003), the respondent raised the question whether the High Court of Delhi acted within the
framework of Section 433 of the Cr.PC, 1973. The Indian Supreme Court specified that when the
court has forgotten judicial wisdom, it will disturb the work of equilibrium, which was allocated
among the three sovereign organs of the state. The Supreme Court takes seriously, when the
High Court upsets exercise of commuting sentence, disobeying its restrictions. The court
examined that the powers of commutation is completely vested with appropriate government.
The S. C. I. explained the meaning of appropriate government and over ruled the directions of
the High Court.

In Union of India v. International Trading Comp. (2003), the respondent applied for grant of
permit, under Maritime zone. The said permit authorized the respondent to take vessels on lease
and operate in foreign deep seas for fishing. The Apex Court detected that when the strategy of
the government has failed to gratify the test of reasonableness, the same will be unconstitutional.

The court stated under Article 14 of the Constitution that the change in policy must be fair and
reasonable, it should not give any arbitrary effect. To make any change in policy through

15
exercise of executive powers there should not be maintained any ulterior criteria. Every State
action is qualified for the standard validity of Article fourteen of the India’s Constitution. The
basic inevitability of Article fourteen is non arbitrary, fair in action. The court stated that the
state action should be informed through reason. If the act is not in conformity to reason, the
matter will be treated as arbitrary.

If any statute is endorsed in contradiction of Article thirteen (two) of the India’s Constitution.
The statute shall come within the area of violation of the constitutional Article and it shall be
pronounced unconstitutional. In respect to several limitations, the fact is that the judiciary has
pronounced illogical statute. The constitutional Article thirteen (two) express that the State will
not make any law, which reduce or absent the privilege of Indian inhabitants under Part three of
the essential rights of the Constitution. There is no direct way, there are several other limitations
of the Constitution, which must be follow to make the legislation, otherwise law will be declared
unconstitutional.

Under privileged of the Indian inhabitants, the authentic remedies are provided under the India’s
ConstitutionArticle thirty-two subject to several limitations. The affected inhabitant of India,
which injured or taken away their rights expressed in the Part three of the Constitution as
essential rights may move to the S. C. I. for justice and recovery. The affected person has to be
crossed several procedural limitation before moving to the court.

Where the essential privileged of an individual deprived under constitutional part three by the
government organs, the S. C. I. has to be guaranteed to issue direction, writ and order as legal
remedies. The Apex Court is bound as the supreme authority to direct writ, order, and suitable
direction for application of essential rights. When the essential rights have not infringed under
part three, the S. C. I. has the limited powers under the Constitution. The court is not in a
position to legal remedies under Article thirty-two.

Under Article thirty-two (one), the Parliament of India is consigned with additional judiciary
powers within the four wall of the Parliament. In the matter of dispute or injury of its member,
the Parliament has the powers to issue direction or order or writ in case of infringement of any
privilege available in essential rights under Part three of the Constitution. The constitutional
powers have the certain laminations, which must be follow before issuing any writ, order and
directions

When the views of the court are differing in any disputed matter among Central government and
States or State among states or State between State. The S. C. I. under constitutional Article one
hundred thirty-one has the jurisdiction of original to solve the such matter. In case, where the
question is difficult under one legislation to other legislations and resources are limited within
the legal rights. The court has the limited powers for judicial review under Article one hundred
thirty-one. It is the constitutional limitation, which may solve the matter through principle of
harmonious construction.

The instrument like covenant, sanad, treaty, engagement, agreement or other such type legal
instrument, which has similar characters. Those instruments will be effective for apply
previously before Constitution of India implementation. Such instrument also will be applied

16
after independent of India and implementation of the fresh Constitution. It is the constitutional
limitation that the such provisions have been made in 7 constitutional alteration in India

The inhabitant of India, which is not pleased with the judgment of the higher court of the state or
where the party of the government, who is not pleased with judgment of the court may proceed
to the S. C. I. under Article one hundred thirty-two of the Constitution subject to several
constitutional limitations. This Article of the Constitution is provided powers to make appeal on
civil, criminal and other matter. The appeal cannot be made on in stream order, it will be made in
decree, final verdict of the higher court of the state.

The concerned higher court of state has right to provide a certificate that the question involved
law and fact for making appeal to the S. C. I. under Article one hundred thirty-four-A. Then
aggrieved party is not free to move for appeal to S. C. I. without taking said certificate, it is the
constitutional limitation on the aggrieved party. In cases, wherever the higher court of the state is
not in a position technically to certify under Article 134A, the person who is unsatisfied with the
direction or judgment has no right to make appeal in the Indian Apex Court.

The Constitution has the powers that the aggrieved inhabitant can move to the S. C. I. for appeal
where the matter related to civil nature under Article one hundred thirty-three. In case, when the
judgment and order of the civil proceeding has been pronounced by the higher court of the state.
The unsatisfied party may move to the Apex Court subject to several constitutional limitations.
The High Court under Article one hundred thirty-four-A is need to provide certificate to the
unsatisfied party. Where the High Court is unable to provide certificate, the unsatisfied party has
no right to move under this Article of the Constitution to the Supreme Court for their rights. In
case, where the higher court of state has issued the decree on civil matter, the S. C. I. has not
permitted for an appeal. Although, if the Parliament of India may remove such effect by law, the
S. C. I. can accept decree on civil matter for hearing the appeal.

Where the matter is criminal nature, the India’s Constitution has provided powers and rights to
aggrieved inhabitant or aggrieved government against the judgment of the higher court of the
state to walk to the S. C. I. for their suitable judgment under Article one hundred thirty-four. It is
the constitutional limitation, that the concerned higher court of the state has to be provided a
certificate, that the case is criminal nature and suitable for plea under constitutional Article one
hundred thirty- four-A. In case, if the concerned higher court of state has not in a position to
provide certificate, then there is no way to move to the S. C. I. for making the appeal for
aggrieved party. This is constitutional restriction to the S. C. I., without providing the certificate
from the higher court of state, the S. C. I. cannot endorse appeal from aggrieved party under this
constitutional Article.

The special power has been provided to the S. C. I. within the province of India under the
constitutional Article one hundred thirty-five. The S. C. I. under this Article can take any matter
for judicial review related with civil, criminal or other nature. Under the Article one hundred
thirty-three and Article one hundred thirty-four, whether higher court of the state has provided
certificate of importance that the matter is fit for appeal or not. In case where the S. C. I. has
applied this Article power, the powers of the higher courts of the state is limited and S. C. I. can
take over any criminal, civil or other nature matter for judicial review subject to several

17
constitutional limitations. In every location of the higher court, the adjudicators are not free to
make decision in their own mind, they are bounded by the constitutional limitations.

The powers of special leave on appeal has been provided by the Constitution under Article one
hundred thirty-six. The S. C. I. under the power of special leave granting leave on appeal to the
inhabitant subject to several constitutional limitations under Article one hundred thirty-six. This
power has not provided to the petitioner, while the S. C. I. where require necessity may grant
special leave on the appeal in case of any matter of decree, judgment, sentence or order. The
special leave can also be granted on judgment of tribunals or judgment of any court within
province of India. Any quasi or semi judiciary or tribunal including approved by Armed Force
has come under the preview of constitutional Article one hundred thirty-six. The judgment,
sentence, order and determination of any tribunal, the aggrieved party has the powers can make
appeal to S. C. I. under special leave provision subject to certain constitutional limitations.

Under the consent of the President of India, the S. C. I. has the constitutional powers under
Article one hundred forty-five to make regulations, law, procedural practices and rules for the
Indian courts. The S. C. I. is not free to make rules and regulation for Indian courts, it has
bounded by certain constitutional limitations and also limitations related to human rights and
legal rights. The laws and procedural regulation, which are against the constitutional provisions,
the S. C. I. cannot make such procedural regulation and laws for implementation of the Indian
courts.

The constitutional Article one hundred forty-five (three) has powers to make laws and procedural
rule and regulations to the hearing for judges in the Indian courts including higher courts of the
states. The S. C. I. also provided procedural rule and guidelines to the division bench of the court
and the procedure of single judge. In case, where the considerable question of important law, the
number of judges in division bench will be five subject to several constitutional limitations that
must be followed. The S. C. I. is not free to make procedural rule, laws and regulation for the
Indian courts, the court must be followed certain rules, regulations, guidelines provided under
constitutional Articles. It is also to mention that the Parliament of India is the supreme authority
to make any legislation, while on the procedural matter such powers has been provided under
constitutional provision Articles to the S. C. I.

The powers to issue writs, constitutional has provided powers to higher courts of states under
Article two hundred twenty-six. The any unsatisfied party may move to the higher court of state
against the decision of the independent organ of the government, where the constitutional
essential rights of the person deprived. The higher court of the state has the powers subject to
certain constitutional limitations to take the matter for hearing. It is observed by the higher court
of the state that the essential rights of the party have been deprived after hearing, the court may
provide constitutional remedies in the form of writs to implements for the concerned government
organ. The higher court of the state is not free to issue writ from his own mind, the court bound
under certain constitutional limitation of procedural guidelines, laws and regulations.

In case, where the essential rights of the constitutional have not deprived, the aggrieved person
cannot approach direct to the higher court of the state under this Article two hundred twenty-six.
The higher court after examined the matter may issue in stream order, injunction, stay order

18
while the other party has not furnished all essential and supportive document to the higher court.
For taking action by higher court of states, the court is bound with certain rule, regulations and
laws within the constitutional limitations.

When the higher court of the state under constitutional Article two hundred twenty-six has issued
stay order under the constitutional provisions, the other party has the opportunity to make
vacating the stay order with certain limitation of the court. The higher court of state will provide
short of time of two weeks in stay order, where the higher court of state has not final hearing the
matter within the two-week time the stay order or interim order shall be cancelled. The power of
the High Court has provided under Article two hundred twenty-six of the Constitution, the court
is not free to use this power with own position, the court is also bound with constitutional
limitation of other Articles.

Under the List First of the seventh scheduled in constitutional provisions, the Parliament has the
full powers to make statutes and law. Such powers have been provided to the Parliament under
the Article two hundred forty-six of the Constitution. The S. C. I. under this Article has not
power to provide rule and laws under List First of the seventh scheduled of the Constitution., it is
constitutional limitations and duty of the Parliament to make law and rules.

Under the List three of the seventh scheduled of the Constitution, the lawmaker of the States and
the legislature of the Parliament have the powers to make rule and laws under Articlet wo
hundred forty-six (three). In this Article the powers of S. C. I. are restricted through
constitutional limitations. Under this Article the Constitution has not authorized to the S. C. I. to
make any law while any dispute between Center and State the court may interfere subject to
certain limitations. The constitutional powers have been provided only to the states in List
second of the seventh scheduled of the Constitution. The higher court of states and the S. C. I.
have not powers to interfere in making law under which the matter incorporated in the second
list. The provision of the Constitution has made transparent, that the State and the Center have
not overlaps its powers. If any case occurred, the S. C. I. has the powers to make interfere subject
to several constitutional limitations.

The S. C. I. has constitutional restrictions, the Parliament of India and the State legislature have
the powers to make any legislation in their respective list mentioned in the seventh scheduled of
the Constitution. The S. C. I. has the powers to resolved any dispute where matter arisen between
States and State and Center and States. The higher courts of state and the S. C. I. may interfere
on the legislation matter, where the question of law and fact raised.

In case, where the legislation is made by the legislature of the States and the Parliament has the
certain objections. In such conditions the law made by the Parliament will be final and
acceptable to the State under constitutional Article two hundred fifty-one. The S. C. I. and the
higher courts of the state have the constitutional restrictions; they cannot interface
constitutionally. Where the dispute raised between States on legislation, the Parliament of India
has the powers to resolved the matter through making the legislation on that subject. Under the
Article Two hundred fifty-one the Constitution has not provided the powers to the court to solve
any dispute related to legislation.

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Under the constitutional provision the legislations was withdrawn by Article three hundred
ninety-five, while the additional legislation was made under the provisions of the Constitution
for the province of India. In the Article three hundred seventy-two the Constitution has the
powers that the laws working before independent of India will be remained continue. However,
the S. C. I. may alter such laws subject to constitutional provisions, where constitutional
limitations also applicable. Where the concord with the President of India under the provision of
the Constitution, such statutes are applicable. On the other statutes, where the President of India
was not provided harmony, such statutes is not in forced after implementation of the Constitution
in free India. The statutes, those was taken concord on the date of President of India will be
effective to make enforceable in the province of India. The President of India is the bound
certain constitutional laminations, while he was concord any statute from his signature. It is
clear, in every filed of the legislation the constitutional limitations are imposed by the
constitution makers. In such laws, the President may has the powers to modification or annulled
any portion of law subject the constitutional limitations.

The laws accepted or repealed for three years after adaptation of the new Constitution in
independent of Indiaunder the constitutional Article three hundred seventy-two. This Article has
provided powers to the President of India that after completion of three years, the President may
alter or annulled in any statute. The President of India has the powers subject to certain
constitutional limitations that he may prevent to the competent authority or statute. Where the
legislatures or competent authority or capable authority in India has passed the law through
constitutional procedure and afterward, the approval is taken from the President of India. Such
law will be applicable in the domain of India and is called the rule in power. The President of
India subject to certain constitutional limitations may decide that the such law will be applicable
in the part of India or the entire province of India.

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 CONCLUSION

Constitution is the fundamental document of the land and research concerning such document
also possesses its usefulness. The concept ofjudicial review is not of recent origin but always
attracted bench, bar as well as academicians. Now a days due to the advent of judicial
activism, study of the doctrine of judicial review has become the heart and soul of the
present day Constitutional law.

The present research work serves several purposes and got its utility. The research
submits that the content and findings in this research work are useful in multiple ways.
This research work is useful for the Administrators, the Bench & bar, the Legal and
non-legal academicians.

The research portrays that most important function of the judiciary under a written
constitution is to keep all authorities within the constitutional limits. This function is
performed by way of judicial review. Judicial review has more technical significance in
public law in countries having a written Constitution. It means the Courts have the
power of testing the validity of legislative as well as governmental actions on the
touchstone of the Constitution. Thus, the Courts determine the legislative Acts by
considering them against requirements within the parameters of a written Constitution.

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