EVOLUTION OF JUDICIAL REVIEW IN INDIAN LEGAL SYSTEM

INTRODUCTION : The Judiciary plays a very important role as a protector of the constitutional values
that the founding fathers have given us. They try to undo the harm that is being done by the legislature
by the legislature and the executive and also they try to provide every citizen what has been promised by
the Constitution under the Directive Principles of State Policy. All this is possible thanks to the power of
judicial review.

One of the most important features of the judiciary is the power of judicial review. Judicial review is the
power of the Supreme Court and the High Courts to examine the constitutionality of the Acts of the
Parliament and the state legislatures and executive orders both of the centre and state governments. If it
is found that any of its provisions are in violation of the provisions of the constitution, they can be
declared unconstitutional or ultra-vires of the constitution and a law declared by the Supreme Court as
unconstitutional cannot be enforced by the government.

According to Redform, “Judicial review is the power of a court to enquire whether a law, executive order
or other official action conflicts with written constitution and , if the court concludes that it does, declare
it unconstitutional and void”.

MAIN PART : In Democratic countries, the Judiciary is given a place of great significance. Primarily, the
courts constitute a despute-resolving mechanism. The primary function of the courts is to settle disputes
and dispense Justice between one citizen and another. But courts also resolve disputes between the
citizen and the state and the various organs of the state itself.

HISTORY OF JUDICIAL REVIEW : The most distinctive feature of the work of United States Supreme Court
is its power of judicial review. As guardian of the constitution, the Supreme Court has to review the laws
and executive orders to ensure that they do not violate the constitution of the country and the valid laws
passed by the congress.

The power of judicial review was first acquired by the Supreme Court in Marbury vs. Madison case,
1803.The constitution of India, in this respect, is more a kin 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.

The constitution of India parliament is not Supreme. Its powers are limited in the 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 formof legislative
encroachment. Being the guardian 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.This is what makes the court a
powerful instrument of judicial review under the constitution. "The doctrine of judicial review is thus
firmly rooted in India, andhas 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.

JUDICIAL REVIEW IN INDIA :The Ultimate power of Judiciary to review and determine validity of a law or
an order may be described as the power of "Judicial Review."

In India we are following the rule of Law it means that the constitution is the Supreme law of the land
and any law in consistent there with is void. The term refers to "the power of a court to inquire whether
a law executive order or other official action conflicts with the written constitution and if the court
concludes that it does, to declare it unconstitutional and void."

It is the power exerted by the courts of a country to examine the actions of the legislatures, executive
and administrative arms of government and to ensure that such actions conform to the provisions of the
nation’s Constitution.

Judicial Review Refers the Power of Judiciary to interpret Constitution and to declare any such Law or
order of legislature or executive void. If it finds them conflict the constitution of India.

It has two important functions:

 of legitimizing government action and;

 The protection of constitution against any undue encroachment by the government.

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

Being the guardian of the Fundamental Rights and arbiter of the constitutional conflicts between the
Union and the States with respect to the division of powers between them, the Supreme Court enjoys
the competence to exercise the power of reviewing legislative enactments both of Parliament and the
State’s legislatures.

The power of the court to declare legislative enactments invalid is expressively provided by the
Constitution under Article 13, which declares that every law in force, or every future law inconsistent
with or in derogation of the Fundamental Rights, shall be void. Other Articles of the Constitution
(Articles-131-136) have also expressively vested in the Supreme Court the power of reviewing legislative
enactments of the Union and the States.
CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEW : The Indian Constitution adopted the Judicial
Review on lines of U.S. Constitution. Parliament is not supreme under the Constitution of India. Its
powers are limited in a manner that the power is divided between centre and states.

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

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

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

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

Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the
Supreme and High Courts.

Article 251 and 254 states that in case of inconsistency between union and state laws, the state law shall
be void.

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

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

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

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

JUDICIAL REVIEW AS A PART OF BASIC STRUCTURE : In the case of Keshavanda Bharati v. State of
Kerela, AIR (1973) SC 1461 the Supreme Court of India the propounded the basic structure doctrine
according to which it said the legislature can amend the Constitution, but it should not change the basic
structure of the Constitution, The Judges made no attempt to define the basic structure of the
Constitution in clear terms. S.M. Sikri, C.J mentioned five basic features:

1. Supremacy of the Constitution.

2. Republican and democratic form of Government.

3. Secular character of the Constitution.

4. Separation of powers between the legislature, the executive and the judiciary.

5. Federal character of the Constitution.

He observed that these basic features are easily discernible not only from the Preamble but also from
the whole scheme of the Constitution. He added that the structure was built on the basic foundation of
dignity and freedom of the individual which could not by any form of amendment be destroyed. It was
also observed in that case that the above are only illustrative and not exhaustive of all the limitations on
the power of amendment of the Constitution.

The Constitutional bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that Judicial
Review in election disputes was not a compulsion as it is not a part of basic structure. In S.P. Sampath
Kumar v. Union of India((1987) 1 SCC 124 at 128.), P.N. Bhagwati, C.J., relying on Minerva Mills Ltd.
((1980) 3 SCC 625.) declared that it was well settled that judicial review was a basic and essential feature
of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would
cease to be what it was. In Sampath Kumar the Court further declared that if a law made under Article
323-A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up
an effective alternative institutional mechanism or arrangement for judicial review, it would be violative
of the basic structure and hence outside the constituent power of Parliament.

Though one does not deny that power to review is very important, at the same time one cannot also
give an absolute power to review and by recognizing judicial review as a part of basic feature of the
constitution Courts in India have given a different meaning to the theory of Check’s and Balances this
also meant that it has buried the concept of separation of powers, where the judiciary will give itself an
unfettered jurisdiction to review any thing every thing that is done by the legislature.

Conclusion: Judicial review is important because laws passed need to be checked to make sure they are
constitutional. The Supreme Court of India enjoys the power of Judicial review and this power has been
specifically recognized by the constitution. It is important because it allows the higher courts to review
the outcomes of the lower courts. It helps to check on the other branches of government. The main
importance of judicial review is to protect individual rights, to balance government powers and to create
and maintain equality to every person. The system of civil liberties that we know of today would be very
different without judicial review.

It is the power exerted by the courts of a country to examine the actions of the legislatures, executive
and administrative arms of government and to ensure that such actions conform to the provisions of the
nation’s Constitution. Judicial review has two important functions, like, of legitimizing government action
and the protection of constitution against any undue encroachment by the government.It means that
the constitution is the supreme law of the land and any law inconsistent therewith is void through
judicial review.
It is an example of the functioning of separation of powers in a modern governmental system. For the
successfulness of the doctrine of check and balance it is also the duty of the court to maintain not only
the value of constitution but also the Constitutionalism.