INDEX

1. Abstract …………………………………………………………………… 2

2. Introduction………………………………………………………………… 3

3. Judicial Review in India …………………………………………………… 4

4. Cases on Judicial Review in India ………………………………………… 7

5. Extent of Judicial Review in India ………………………………………… 10

5.1 Judicial review of political issues

5.2 The basic principles of judicial review of constitutional status

5.3 Judicial activism the expansion of judicial review

6. Restrictions on the Right of Judicial Review……………………………… .. 12

7. Conclusion………………………………………………………………… .. 14

8. Bibliography……………………………………………………………… .. 15

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 1. ABSTRACT

Law plays an important role in the Society. It reconciles the conflicting interest of individuals
and those of individuals and society. In a democratic state, law functions as an instrument of
justice. Law without justice becomes an instrument of oppression. The concept of justice
changes from time to time and society to society. Law must be responsive to the needs of the
society and an outdated law is never respected. Laws are enacted by the legislature and
implemented by the executives where as the judicial wing of the government interprets them and
applies them to decide disputes between citizens and citizens and the state. In a federal state the
judiciary also settles controversies between federating units inter-se. The most important
function of the judiciary under a written Constitution is to safeguard the Supremacy of the
Constitution and to keep all authorities within constitutional limits.

Keywords: law, society, judicial, citizens.

2
 2. INTRODUCTION

The Concept of Judicial Review, in its narrow usage, especially since its adoption in the
American constitutional system, has been used to indicate the institutional arrangements by
which courts of law pronounce judgment on the constitutional validity of the disputed piece of
legislation enacted by the law-making organ viz., legislature and the Parliament. Judicial review
can be considered as mechanism for upholding the supremacy of the basic law in a country
governed by ideal of political constitutionalism. Also, judicial review implies a comprehensive
judicial enquiry into, and examinations of the action of the legislative, executive and
administrative branches of government, with specific purposes of ensuring their conformity to
the specified constitutional provisions.

Section 114, CPC, 1908 defines Judicial Review as a Means to look again, ie. main object of
granting a review of judgment in reconsideration of the same matter by the same judge under
certain conditions.

3. Origin
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.

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 3. JUDICIAL REVIEW IN INDIA

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.

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."

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.

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.

4
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.

The judgment in I.R. Coelho v. the State of Tamil Nadu 1 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.

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

(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 case2, Sajjan Singh case3, Golak Nath case4, Kesavananda Bharati case5,
Minerva Mills case6, and Indira Gandhi case7. The test of validity of Constitutional
amendments is conforming to the basic features of the 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.

1
(1999) 7 SCC 580
2
Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
3
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
4
Golak Nath v. State of Punjab, AIR 1967 SC 1643
5
Kesavananda Bharati v. Union of India, AIR 1973 SC 1461
6
Minerva Mills v. Union of India, AIR 1980 SC 1789
7
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1

5
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 Administration8.

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 administrative power is not
an exception to that basic rule.

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.

8
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.

6
 4. Cases on Judicial Review In India

The basic function of the courts is to adjudicate disputs 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 India 9 the first Amendment Act of 1951 was
challenged before the Supreme Court on the ground that the said Act abridged the right to
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 case10, 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).

9
AIR 1951 SC 458
10
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845

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The historic case of Golak Nath vs. The state of Punjab11 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 three 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.

(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

11
AIR 1967 SC 1643

8
change or destroy the entire fabric of the constitution through the instrumentality of parliament's
amending power.

In Minerva Mills case12 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.

12
(1980) 3 SCC 625

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 5. 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. 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.

5.1 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 and 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.”

5.2 The basic principles of judicial review of constitutional status: In 1973, the Supreme
Court in the landmark Keshavananda Bharathi v. State of Kerala13 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:

13
AIR 1973 SC 1461

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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.

5.3 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 Gandhi14, 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 rights.
Like 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.

6. RESTRICTIONS ON THE RIGHT OF JUDICIAL REVIEW

14
AIR 1978 SC 597

11
1. A Court cannot take up a matter for judicial review sua moto. It has to wait till the
case is brought before it by the parties or through PIL.

2. The Court cannot enter into policy decisions of the government such as the economic policy.
Also matters involving political questions cannot be decided by the Court. Only disputes
inter parties can be decided by the Court.

3. The Constitution is the supreme law of the land and all state organs – Legislature and
Executive are bound by it. The Constitution has provided for separation of powers between
the Legislature, Executive and Judiciary and therefore each organ must act within the
limits prescribed for it. The Courts as interpreter of Constitution and arbiters of legal disputes
may declare any law made by Legislature or any act of the Executive as unconstitutional
if it violates the limits placed by Constitution. In doing so the Courts have to give due
regard to the powers and autonomy of the other organs. For example Courts presume that
Legislature acts are constitutional unless proved otherwise and they interfere only in clear cases.
But the cases are not always clear and therefore an unending debate continues on the role of
Courts in judging an act of the Legislature and Executive as unconstitutional.

4. The main controversy is that whether amendment of the Constitution is subject to

judicial review. Art 13(4) which was added by the Constitution 24 th Amendment Act,
1971 explicitly states that nothing in Art 13 shall apply to any amendment of this
Constitution made under Art 368. The same Amendment Act also added clause (3) to Art 368
which states that nothing in Art 13 shall apply to any amendment made under this
article.

In Golak Nath v. State of Punjab, the constitutional validity of Constitution (17 th

Amendment) Act was challenged. The Supreme Court by 6:5 held that the word law in
Art 13(2) included amendments to the Constitution and consequently if an amendment
abridged or took away a Fundamental Right guaranteed by Part –III of the Constitution, the
amending Act itself was void and ultra vires.

12
To neutralize the effect of Golak Nath, 24 th Amendment Act and 25th Amendment Act
(Art 31-C was added).

In Keshavananda Bharati v. State of Kerala, the constitutional validity of 24th and

25th Amendment Act was challenged in the Supreme Court. The Supreme Court overruled the
Golak Nath’s case and it was unanimously held that the Constitution 24 th Amendment
Act was valid. All the judges agreed that under the amended Art 368 all provisions of the
Constitution including those enshrining Fundamental Rights could be amended.

However, the majority of 7:6 being invalidated on the ground that it violates the basic
structure.

13
 7. CONCLUSION

The Supreme Court of India is no doubt the finale interpreter of the constitution as we have
studied and analysed from many cases. It is playing a role of protector and working at its best.
With its intellect and time our supreme court has achieved a lot more than bare rigid law
interpreter made by the legislation. Now with its power of judicial review and judicial activism
this court is doing a lot for the social welfare. It has become the last resort for the weak sections
of the society.

But on the other hand this law making power in the hands of the judiciary is posing a threat to
the state constitutionalism. India is following constitution and its spirit is to establish
constitutionalism in the country. But this power of the Supreme Court can lead to the
country where judiciary will be the head. It is synonymous of creating a third chamber of
legislation, which is against the principle of constitutionalism i.e. idea of limited government
where a organ of the government can be checked on the ground of being arbitrary.

So in the end I would like to say that this power requires a sense of causation while
exercising it. Court should not act arbitrarily. “great powers bring great responsibilities”, this
quotation of some scholar can guide the court while using its powers.

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 8. BIBLIOGRAPHY

1. All India Reporters

2. Supreme Court Cases
3. Upender Baxi, “Taking Suffering Seriously: Social Action Litigation In The Supreme
Court Of India”
4. S.P Sathe, “Judicial Review In India: Limits And Policy”, “Ohio State Law Journal”,
Vol35, 1974
5. Prof. M.P.Jain, INDIAN CONTITUTIONAL LAW, Fifth edition reprint
2009,LexisNexis Butterworths Wadhwa, Butterworths Wadhwa, Nagpur
6. Prof D.D.Basu, AN INTRODUCTION TO THE CONSTITUTION OF INDIA, 2010
7. J.N.Pandey, THE CONSTITUTIONAL LAW OF INDIA, 45th edition, 2008, Central
Law Agency
8. Basu, Durga Das, Administrative Law, 5th Ed., Kamal Law House, Calcutta, 1998.
9. Jain, M.P. 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.

15