FACULTY OF LAW

UNIVERSITY OF ALLAHABAD

NAME- AADRIKA PARASHAR

ROLL NO.- 1

SECTION-A

SUBJECT-CONSTITUTIONAL LAW -II

COURSE – B.A. LL.B(HONS)

TOPIC - DOCTRINE TO JUDICIAL REVIEW WITH SPECIAL REFERENCE TO

INDIA

SUBMITTED TO SUBMITTED BY
MISS SRISHTI SINGH AADRIKA PARASHAR
 INDEX

1.ACKNOWLEDGEMENT page -1

2.DOCTRINE OF JUDICIAL REVIEW

WITH SPECIAL REFERENCE TO INDIA page- 2

3.EVOLUTION OF THE DOCTRINE page- 2-3

4. CASE LAWS page- 3-4

5. FEATURES OE THE DOCTRINE page-5

6.CONCLUSION page-6

7.BIBLIOGRAPHY page-7
 ACKNOWLEDGEMENT

I would like to express my sincere thanks to Miss SRISHTI

SINGH, for her valuable guidance and support in completing
my project.
I would also like to express my gratitude towards my family
members, friends for giving me this great opportunity to do a
project on DOCTRINE OF JUDICIAL REVIEW WITH SPECIAL
REFRENCE TO INDIA. Without their support and suggestions,
this project would not have been completed.
DOCTRINE OF JUDICIAL REVIEW WITH SPECIAL REFERENCE TO
INDIA

Article 13 of the Indian Constitution states the compulsion of judicial review as

described the fundamental rights in Part III. It has been laid down that neither the
state nor the Union shall make any such rules that may take away or abridge the
essential rights of the people of the country. Judicial Review is an asset recognized
as a basic and vital requirement for the construction of a novel civilization in order
to safeguard the liberty and rights of the individuals and it is vested significantly
on the High Courts and the Supreme Courts of India. It is the power of Courts to
pronounce upon the constitutionality of legislative and executive acts of the
government which fall within their normal jurisdiction and any law made by the
Parliament or the state legislature will be considered void if it contravenes the
provisions of the article under the fundamental rights. When the Legislature,
Executive and Judiciary have harmed the constitutional values and deny the rights,
which have been definite under the Indian Constitution to the Indian inhabitants. In
such circumstances the judicial review plays very important role as protector for
safeguarding the rights of people.

EVOLUTION OF THE DOCTRINE

1. IN UNITED STATES OF AMERICA:

The Doctrine of Judicial Review was for the first time propounded by the Supreme
Court of America. Originally, the constitution of United States did not contain an
express provision for judicial review but it was assumed by the Supreme Court of
United States in the historic case of Marbury vs Madison. Chief Justice Marshall
observed that "the constitution is either superior paramount law, unchangeable by
ordinary means or it is on a level with ordinary legislative acts and like other acts is
alterable when the legislature shall please to alter it........... Certainly, all those who
framed written constitutions contemplated them as forming the fundamental and
paramount law of the nation and consequently the theory of every such government
must be that an act of the legislature repugnant to the constitution is void.... It is
emphatically the province and duty of the judicial department to say what the law
is".

2. IN INDIA:
In India the power of judicial review was exercised by the courts prior to the
commencement of the constitution of India. the British Parliament introduced
Federal System in India by enacting the Government of India Act 1935. Under this
act both the Central and State legislatures were given plenary powers in there
respective spheres. They were supreme in their allotted subjects like British
Parliament. The Act of 1935 established the Federal Court so as to function as an
arbiter in central and state relationship. The Federal Court was also empowered to
scrutinize the violation of the constitutional directions regarding the distribution of
powers on introduction of federalism in India. The power of judicial review was 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 determine the constitutionality of legislative acts. In the article 13
of the Indian constitution, the law explicitly mentioned about the power of Judicial
Review to be endowed to the high court and Supreme Court.

Case laws in India:

Chief Justice Kania in the landmark case of A.K.Gopalan vs. State of Madras1 ,
stated that “it was only through caution and care that the framers of our constitution
added the specific provisions mentioned in Art 13. In a country like India, it is the
constitution which is the most supreme and hence all statute laws should be in
conformity with it and it should be for the interpreters to decide whether any law is
constitutional or not”.

In the case of Shankari Prasad vs. Union of India2 , the amendment was challenged
on the reason that it is violating the Part-III of the Indian constitution and hence, the
amendment should be considered not valid. The Supreme Court claimed that the
legislative organ, under Article 368, has the power to change any part of the
constitution including the fundamental rights. Here the court used its power of
Judicial Review.

But in case of Golak Nath Vs. state of Punjab3, the courts changed its decision.
The court this time stated that under article 368 there is only the procedure to amend
laid down but not the power for the parliament.

In the year 1972, the honourable Supreme Court was summoned to check on the
validity of the 24th, 25th and 29th Amendment in the Keshvananda Baharti’s4 case
. The Supreme Court asserted its power of Judicial Review through the doctrine of
basic structure. It was since then that the doctrine of basic feature became an
inseparable power of the constitution.

1.AIR 1950 SC 27
2.AIR 1951 SC 455
3. AIR 1967 SC 1643
4.AIR 1973 SC 1461
In sharp contrast was the Supreme Court's ruling in ADM Jabalpur vs Shivakant
Shukla5. During the Emergency the leaders of the opposition were put in prison, the
press was muzzled and fundamental rights suspended. Upsetting rulings by

Twelve High Courts in the country, the Supreme Court held that during the
Proclamation of Emergency under Article 352 of the Constitution, a court was
powerless to protect an individual from state action notwithstanding such action
being contrary to law and resulting in complete deprivation of the right to life and
liberty. It was after the emergency was lifted there dawned a realization of the
importance of decisions such as Keshavananda Bharti case, and the importance
generally of the power of judicial review.

The basic structure doctrine was yet again reaffirmed in the case of I.R.Coelho vs
State of Tamil Nadu6 , in which the Supreme Court held that any law placed in the
9th schedule after April 24, 1974 will be open to challenge. The Court held that even
through the Act is put in the 9th schedule by a constitutional Amendment its
provisions would be open to challenge on the ground that the destroy or damage the
basic feature of the constitution.

5.AIR 1976 SC 1207

6.AIR 2007 SC 8617
FEATURES OF THE DOCTRINE:

There are certain set of characteristics carried by the doctrine. These characteristics
can also be identified as a set of guidelines to be followed by the courts when
exercising the doctrine:

1. The doctrine works for both central laws, state laws as well as orders.

2. The doctrine loses its exercise of powers on subjects mentioned in schedule

9 of the constitution.

3. Judicial review is for the question of law and not the issues relating to any
politics.

4. The doctrine only works when the question of law is challenged in the court
or during a hearing of a case the validity of law is questioned.

5. The court has the power to either hold the law is question to be completely
invalid, completely valid or in some cases it might even held the part of it
invalid.

6. The decision becomes applicable from the day the judgement is passed.

7. The courts should follow the principle of “procedure established by law”, i.e.
while the interpretation of any law, the court must ask one question, whether
the law in question has been made in accordance with the powers which are
granted by the Constitution to the law-making body and follows the
prescribed procedure or not? If the answer is no, then the court must prove it
void.
 CONCLUSION

The supporters of judicial review argue that this is essential in order to ensure justice
for the citizens and uphold the principles provided in the Preamble of the Indian
Constitution. They contend that judicial review is necessary in order to maintain the
supremacy of law. They also argue that it would check the powers of the legislature
and the executive and ensure that there is no misuse of power. It would protect the
fundamental rights of the citizens provided in the Indian Constitution and ensure that
no laws made by the legislature abridge these rights.

Judicial review is a very significant process in the rule of law which guarantees that
the fundamental rights of the people are not abridged. The Constitution of India gives
the power of judicial review to the High Courts and the Supreme Court of India.
These courts can review the laws and policies of the legislature and executive and
have the power to quash the laws and declare them void if they are against the Indian
Constitution. There has been a long history of cases with regards to judicial review
in India which has led to a significant change in the process and extent of judicial
review. Also, there have been arguments with regards to the operation of judicial
review with both supporters and those against the process providing strong
contentions in this regard. However, it is an accepted principle that judicial review
is necessary for justice to prevail and in order to ensure that the fundamental rights
enshrined in the Indian Constitution are provided to each and every citizen of India
 BIBLIOGRAPHY

1. Pandey, J.N. (45th edn.) Allahabad: Central Law Agency,

(2008)
2. Jain, M. P. (6th edn.). Indian constitutional law. Bombay
(1962)
3. Constitutional Law: Doctrine of Judicial Review
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