LEGAL ENGLISH ASSIGNMENT

Submitted by – Kalpana
Class- B.A LLB ( first year)
Roll no – 1914151

Duly signed self declaration

This is to bring to your kind notice and concern, that the entire assignment has been completed
by me taking into primarily approach e- sources and websites.

 www.internationalseminar.org

 www.legalservicesindia.com

 www.thehindu.com

 https://Indiankanoon.org

 https://casemine.com

 www.nja.nic.in

 https://timesofindia.indiatimes.com

Therefore, I conclude declaring that the assignment includes practical and analytical
understanding of these factual case comment coupled with the legal provisions referred from the
above mentioned sources.
Kalpana
Question-

To declare a Statute unconstitutional places burden on the Courts. Therefore Courts would
not hold legislation as unconstitutional easily. They have to draw a balance between
‘necessities of time’ and ‘constitutional fundamentals’. ..” In the light of the given
statement explain the following:-
(a) Whether the judicial review of legislative action is an interference of judiciary into the
legislative functions
(b) Discuss the various principles evolved by the Judiciary in India for review of legislative
action.

Answer-

Judicial Review gives ability to the courts of India to test the working of the legislative,
executive and administrative parts of the government. It also give power to determine whether
the actions of all the arms of the government are compatible or reconcilable with the
Constitution. The actions which are judged as non-compatible and, are hence, declared as
unconstitutional and also treated as null and void.
Existence of a written Constitution establish the sense of judicial review in the country. It will be
more appropriate if we use the term “constitutional review” at the place of judicial review. This
can be explain as there is a long practice of judicial review on the working of the administrative
arm that requires neither the courts has the ability to proclaim those actions as unconstitutional
nor the country have a written Constitution.
When the courts exercise judicial review in the constitutional or conventional sense than courts
can challenge the administrative actions to be declared as null and void on behalf of them as
unreasonable or to be involved in abuses of discretion as they are incompatible or inconsistent
with the requirements of the Constitution. The power of judicial review is one of the basic
features of the Constitution.1
The court can pronounce an action or a rule or a law against the legislature actions or the acts of
the government agencies when the acts seems to be not consistent with the Constitution of the

1
Kesavananda Bharti v. State of Kerala (1973) 4 SCC ; Indira Nehru Gandhi v. Raj Narain AIR
1975 SC 2299; and Raja Rampal v. Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184.
country or because the actions are not consistent with the establish laws or any other legal
principles, whether the court have power to challenge or declare the actions of the government

agencies as inconsistent or unconstitutional, the court can accomplish the same consequence by
practicing “ indirect” judicial review.
The supreme law of the country or land is the Constitution of India. Hence, only the supreme
Court of India has the supreme authority of protecting and interpreting the Constitution of the
country. The supreme Court of India also acts like the guardian protector of the fundamental
rights of the people. Therefore, the supreme Court exercises the power of deciding the
Constitutional sustainability of the laws for protecting the constitutional values. It has the power
to change or interpret any part of law which is found to be inconsistent with the Constitution or
to reject any law. This supreme power of the supreme Court of India is called as the Judicial
Review Power. State high courts also practice this power but their judgements can be modulated
or upheld or rejected in any appeal to the supreme Court.

Judicial Review in India has developed in three different aspects as :-

 To protect the legality of the essential rights which are given under Part III of
fundamental rights in the Indian Constitution.

 For interviewing the public interest.

 To legitimize the indifference of the organizational achievement.

Judicial Review can be conducted in respect of all central and state laws, the orders and
ordinances of the Constitution and executive amendments. Judicial review cannot be conducted
in respect of the laws Incorporated in the 9th schedule of the Constitution. It applies only to the
questions of law not in respect of political issues. The power of judicial review cannot be used by
the supreme Court of its own because it can only be used when any rule or law is specifically
challenged before it or when during the period of hearing a case, the validity of the law or the
compatibility of the law according to the Constitution is raised before it.
The compulsion of judicial review was described under article 132 of Indian Constitution and in
part III of the fundamental rights. It is well stated in this article that the Union or State shall not
2
. In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule,
regulation, notification, custom or usages having in the territory of India the force of law; 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
make any laws or rules which take away the essential and necessary parts or rights of the people
and Constitution. If such rules and laws made by the state legislature or parliament which
contradicted with the provisions under this article, shall be declared as null and void. The
influence of judicial assessment has been so long under article 226 and 227 in case of High Court
and article 32 and 1363 in case of Constitution of India for the review.

Mechanisms of judicial review

Three dimensions which are covered under judicial review in India are as follows:-

 Judicial review for legislative action.

 Judicial review for judicial decision.

 Judicial review of administrative action.

In the case of Golaknath v. State of Punjab4, the Court held that the Parliament could not
amend the Constitution to take away the rights provided in Part III of the Constitution. This
resulted in the 24th amendment (1971)of the Constitution, which declared that the amendment
powers of the Parliament are not restricted.

The controversy was rested in the case of Kesavanand Bharati v. State of Kerala5 where the
court though agreeing that the Parliament is not restricted to amend the Constitution, but also put
a caveat of the doctrine of basic structure. The Court observed that the constitutional
amendments are to be done keeping in mind the basic structure of the Constitution.

3
Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by
any court or tribunal constituted by or under any law relating to the Armed Forces

4
AIR 1967 SC 1643
5
AIR 1973 SC 1461
 In Minerva Mills v. Union of India6 case the Court further observed that the tool of the
amendment of the Constitution cannot be used to destroy the constitution itself. The Supreme
Court of India has used the power of judicial review from time to time to uphold the values
incorporated in our Constitution.
The Supreme Court in State of Madras v/s Row7 stated that the constitution contains express
provisions for judicial review of legislation as to its conformity with the constitution. The court
further observed “while the court naturally attaches great weight to the legislative judgments, it
cannot desert its own duty to determine finally the constitutionality of an impugned statute”.
In A.K.Gopalan v/s state of Madras8 the court held that “ In India it is the constitution that is
supreme and that a statue law to be valid, must in all cases be in conformity with the
constitutional requirements and it is for the judiciary to decide whether any enactment is
constitutional or. ”
In Air India v/s Nargesh Meerza9, regulation framed by Air India authorizing the employer to
terminate services of an air Hostess on her first pregnancy was held to be extremely arbitrary,
unreasonable abhorrent to notions of civilized society and interfering with the ordinary cause of
human nature. In Githa Hariharan v/s Reserve Bank of India,10 the rules of Reserve Bank of
India, that mother will become natural guardian after father was struck down as unconstitutional.
In Waman Rao v. Union of India 11the Supreme Court held that all amendment to the
Constitution which was made before Keshavananda Bharti’s case including those by which the
Ninth Schedule to the Constitution was amended from time to time were valid and constitutional.
But amendments to the Constitution made on or after that date by which the Ninth Schedule was
amendment were left open to challenge on the ground that they were beyond the Constituent
power of parliament because they damaged the basic structure of the Constitution.
The landmark case of Shreya Singhal v. Union of India 12, plays a very important and vital role
in the Indian legal system. The case revolves around the fundamental right of freedom of speech
and expression under article 19(1)(a)13of the Indian Constitution. This case challenged the
constitutional validity of section 66 A of Information Technology Act 2000. Section 66 A deals
with the punishment for sending offensive messages through communication services, etc. In
Romesh Thappar v. State of Madras 14, the court stated that the freedom of speech lay at the
foundation of all democratic organizations.

6
AIR 1980 SC 1789
7
AIR 1952 SC 196
8
AIR 1950 SC 27
9
AIR 1981 SC 1829
10
AIR 1999 SC 1149
11
AIR 1981 SC 271
12
2015
13
To freedom of speech and expression.
14
(1950) S.C.R. 594 at 602
In October 2017,15 Joseph shine a non- resident Keralite filed a public interest under article 32 of
the constitution. This petition challenged the constitutionality of the offense of adultery under
section 49716. On 27 July, 2018 the supreme Court with a bench of 5 judges without exception
struck down section 497 of IPC as being volatile of article 14, 15 and 2 of the constitution.

 Justification of Judicial Review:-

A very large number of the supporters of Judicial Review do not accept the arguments of the
critics. They argue that Judicial Review is an essential and very useful system for Indian liberal
democratic and federal system. It has been playing an important and desired role in the
protection and development of the Constitution.

 Judicial Review is essential for conserving the superiority of the Constitution.

 It is crucial for examing the possible abuse of power by the legislature and executive.
 Judicial Review is a mechanism for preserving the rights of the people.

 No one can deny the importance of judiciary as an umpire, or as an arbiter between the
center and states for maintaining the federal balance.

 The grant of Judicial Review power to the judiciary is also essential for strengthening the
position of judiciary. It is also essential for securing the independence of judiciary.
 The power of Judicial Review has helped the Supreme Court of India in exercising its
constitutional duties.

 The possibility of abuse of is power of by the Judiciary is very less

because several checks have been in existence:-

 Judicial Review is not possible on some laws. The Parliament can place laws aimed at
securing socio-economic reforms in the 9th Schedule of the Constitution. This makes
these immune from Judicial Review.

15
Joseph Shine v. Union of India (2017)
16
Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man, without the consent or connivance of that man, such sexual
intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished
with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
In such case the wife shall not be punishable as an abettor.
  The scope of Judicial Review stand limited to only legal and constitutional cases.
 The Supreme Court is itself bound by the Constitution of India and the Parliament can
amend the Constitution.
 The grant of specific fundamental rights to the also limits the scope of Judicial Review.
 The Parliament can pass laws and amendments for overriding the hurdles created by
Judicial Review.

These limitations can prevent a possible misuse of Judicial Review power by the Court.

CONCLUSION

The main purpose of judicial review is to ensure that the laws enacted by the legislature conform
to the rule of law. The form of judicial review varies in different parts of the world based upon
its history and legal system. It is not right to assume that judicial review of a legislature confers
the judiciary with an upper hand over the other two organs of the government. Review of
fundamental rights has been accepted as a legitimate practice in a democratic country either in
the form of a necessary evil or as a just requirement.