Law plays an important role in today’s society.

People have given up on their rights and entered into

a contract with the government in return of which the government gave them protection against the
wrong. This is known as the Social Contract Theory given by Hobbes. In this phase of Rule of Law, the
law without justice can become arbitrary and can be misused. So to keep check and balance on the
power of each organ of government we have further adopted Judicial Review. Judicial review is the
process by which the court declares any law which goes against the constitution as void. We have
adopted this feature from the United States Constitution. But it took a lot of years to fix this feature
in our constitution. Judiciary has played an important role in this regard. Judicial Review can be of
Constitutional Amendments, Legislative actions and of Laws made by the legislature. In this research
paper, we will discuss the history, growth, features and types of Judicial Review with Indian case
laws.

Supremacy of law is essence of Judicial Review. It is power of the court to review the actions of
legislative and executive and also review the actions of judiciary. It is the power of the court to
scrutinize the validity of law or any action whether it is valid or not. It is a concept of Rule of Law.
Judicial Review is the check and balance mechanism to maintain the separation of powers &
separation of functions. Separation of power has rooted the scope of Judicial Review. It is the great
weapon in the hands of the court to hold unconstitutional and unenforceable any law and order
which is inconsistent or in conflict with the basic law of the land. The two principal basis of judicial
review are “Theory of Limited Government” and “Supremacy of constitution with the requirement
that ordinary law must confirm to the Constitutional law. In India, there are three organs of
government namely Legislature, Executive and Judiciary. The Legislature performs the function of
making the laws, the Executive executes/implements the laws and the Judiciary keeps a check on
both the organs specified above and makes sure the laws being made and implemented are not ultra
vires to the Constitution of India. To make these organs work in their specified limits our constitution
has the feature of Separation of Power. Article 50 of the Indian Constitution talks about the
separation of power.
The power of the Judiciary to review the Act of the Legislature or the Executive in order to
determine its constitutional propriety is known as the “Doctrine of Judicial Review”. 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 Indian Constitution and if the Court concludes that it does, to declare it
unconstitutional and void”. It is the power of the Court to declare a legislative Act void on the
grounds of unconstitutionality.

Edward S. Corwin says that Judicial review is the power and duty of the courts to disallow all
legislative or executive acts of governments, which in the Court‟s opinion transgresses the
Constitution.

Judicial Review prevails in those countries which have written Constitution. It means that the
Constitution is the Supreme law of land and any law inconsistent therewith is void. The power of the
judiciary is not limited to enquiring about whether the power belongs to the particular legislature
under the question it extends also as to whether the laws are made in conformity with and not in
violation of other provisions of the Constitution.

Judicial Review can be studied under three heads:

1. Judicial review of constitutional amendments.

2. Judicial review of Legislative enactments issued by Parliament and State legislature.

3. Judicial review of Executive orders of Union and State governments and subordinates.

Montesquieu‟s theory of separation of power put a curb on absolute and uncontrollable power in
any one organ of the government. It is by balancing each of these against the other two that the
efforts in human nature towards tyranny can alone be checked and restrained and any freedom
preserved in the Constitution. To take recourse to Judicial Review is the evolution of the mature
human thought. Law must be in conformity with the Constitution. If law exceeds in its limit, it is not
law but a mere pretence of law. Law must be just, virtuous and capable of bringing human
prosperity and not arbitrary, unjust and in violation of the Constitution. Judicial Review is a great
weapon through which arbitrary, unjust harassing and unconstitutional laws are checked. Judicial
review is the cornerstone of constitutionalism which implies Limited Government.

This concept is not followed in the strict sense as compared to the USA from where it has been
adopted. The concept of Judicial Review has been adopted from the American Constitution. The
Judiciary has the power to set aside any law passed by the parliament if it intervenes in the
Constitution of India. Any law passed by the legislature that contravenes the Constitution can be
made null and void by the Judiciary. Under Article 13(2) of the Constitution of India, any law made by
the parliament that abridges the right conferred to the people under Part 3 of the constitution is
void-ab-initio.  The power to interpret the Constitution of India to its full extent lies within the
Judiciary. It is the protector of the Constitution of India. Power of Judicial Review is vested in many
articles such as 13, 32,131-136, 143, 226, 145, 246, 251, 254 and 372. 

Article 372(1) talks about Judicial review of the pre-constitutional laws that were in force before the
commencement of the Constitution of India. 
Article 13(2) further talks about any law made by the parliament after the commencement of the
constitution shall be declared null and void by the Court. 

The Supreme Court and High Court are said to be the guarantors of Fundamental given by the
constitution. If any person’s Fundamental right is violated he/she can approach the court under
Article 32 or Article 226 of the constitution. 

Article 251 and 254 states that if there is any inconsistency between the union and state law, the law
of union shall prevail and the state law shall be deemed void. 

THE PLACE OF JUDICIAL REVIEW IN INDIAN CONSTITUTION

Judicial review plays a very important role as a defender once the executive, judiciary and legislature
hurt the Constitutional values and denies the rights. The judicial assessment is taken into account as
an imperative feature within the country. In India, there's parliamentary kind of democracy
wherever each section of individuals is concerned in higher cognitive {process} and politics process.
It’s true that the first duty of the court to use rule of law and is that the groundwork of social
equality. By physical exertion new powers of Parliament, rule of law that is to be applied by the
court can't be changed. All those here, who are doing public duty, are accountable. They have to
work within the democratic provisions of the Constitution of India. The thought of separation of
power and rule of law is judicial review. The influence of judicial assessment has been farewell
beneath Articles 226 and 227 just in case of court and Articles 32 and 136 of the Constitution of India
for the review. In post-independence India, the inclusion of specific provisions for ‘judicial review’
was necessary so as to grant impact to the individual and cluster rights warranted within the text of
the Constitution.

Dr. B.R. Ambedkar, chaired the drafting committee of our Constituent Assembly, had described the
provision related to the same as the ‘heart of the Constitution’. Article 13 (2) of the Constitution of
India prescribes that the Union or the States shall not build any law that takes away or abridges any
of the elemental rights, and any law created in dispute of the aforesaid mandate shall, to the extent
of the dispute, be void. While review over body action has evolved on the lines of common law
doctrines like ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural
justice, the Supreme Court of India and therefore the numerous High Courts got the facility to rule
on the constitutionality of legislative yet as body actions to safeguard and enforce the fundamental
rights granted under Part III of the Constitution. The High Courts also are approached to rule on
queries of legislative competency, principally within the context of Centre-State relations since
Article 246 of the Constitution scan with the seventh schedule, contemplates a transparent
demarcation yet as a zone of intersection between the law-making powers of the Union Parliament
and therefore the numerous State Legislatures. Hence the scope of review before Indian courts has
evolved in three dimensions – first off, to make sure fairness in body action, second to safeguard the
constitutionally warranted elementary rights of voters and third to rule on queries of legislative
competency between the centre and therefore the states. The facility of the Supreme Court of India
to enforce these elementary rights springs from Article 32 of the Constitution. It provides voters the
correct to directly approach the Supreme Court for seeking remedies against the violation of those
elementary rights.
FEATURES OF JUDICIAL REVIEW

1. Power of judicial review can be exercised by both the Supreme Court and High
Courts: 
Under Article 226 a person can approach the High Court for violation of any fundamental
right or for any legal right. Also, under Article 32 a person can move to the Supreme Court
for any violation of the fundamental right or for a question of law. But the final power to
interpret the constitution lies with the apex court i.e Supreme Court. The Supreme Court is
the highest court of the land and its decisions are binding all over the country.
2. Judicial Review of both state and central laws: 
Laws made by centre and state both are the subject to the judicial review. All the laws,
order, bye-laws, ordinance and constitutional amendments and all other notifications are
subject to judicial review which are included in Article 13(3) of the constitution of India. 
3. Judicial review is not automatically applied:
The concept of judicial review needs to be attracted and applied. The Supreme court cannot
itself apply for judicial review. It can be used only when a question of law or rule is
challenged before the Hon’ble court. 
4. Principle of Procedure established by law:
Judicial Review is governed by the principle of “Procedure established by law” as given in
Article 21 of the Indian Constitution. The law has to pass the test of constitutionality if it
qualifies it can be made a law. On the contrary, the court can declare it null and void.   

JUDICIAL REVIEW AS A PART OF THE BASIC STRUCTURE:

In the celebrated case of Keshavanda Bharathi v. State of Kerela, 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 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, P.N. Bhagwati, C.J., relying on Minerva Mills Ltd 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.
In Kihoto Hollohan v. Zachillhur another Constitution Bench, while examining the validity of
para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the
decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs,
observed that it was unnecessary to pronounce on the contention whether judicial review is
a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic
structure.

FACTS:
William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper,
by their counsel, Charles Lee, severally moved the court for a rule to James
Madison, secretary of state of the United States, to show cause why a
mandamus should not issue commanding him to cause to be delivered to them
respectively their several commissions as justices of the peace in the district of
Columbia. This motion was supported by affidavits of the following facts; that
notice of this motion had been given to Mr. Madison; that Mr. Adams, the late
president of the United States, nominated the applicants to the senate for
their advice and consent to be appointed justices of the peace of the district of
Columbia; that the senate advised and consented to the appointments; that
commissions in the due form were signed by the said president appointing
them justices, and that the seal of the United States was in due form affixed to
the said commissions by the secretary of state; that the applicants have
requested Mr. Madison to deliver them their said commissions, who has not
complied with that request; and that their said commissions are withheld from
them. 
Applicant asked the Supreme Court to compel President Jefferson’s Secretary
of State, by Writ of Mandamus, to deliver the commission.
The questions argued by the counsel for the relators were, 1. Whether the
supreme court can award the writ of mandamus in any case. 2. Whether it will
lie to a secretary of state, in any case whatever. 3. Whether in the present case
the court may award a mandamus to James Madison, secretary of state.

The Decision
Marshall framed the decision by answering these three questions:
 Did Marbury have a right to the commission?
 Was a writ of mandamus the proper remedy?
 Did the Supreme Court have the right to issue such a mandamus?
Marshall, writing for a unanimous Supreme Court, held that Marbury did have
a right to the commission, meaning that Jefferson was violating Marbury's
rights, and the law, by withholding it. Further, Marshall held that Marbury
could properly sue in court for a mandamus. In doing this, Marshall was able to
frame the Jefferson camp as not following the law. Put simply, the answer to
the first two questions was yes.
The reason the Supreme Court sided with Madison and Jefferson, however, is
that Marshall determined that the Supreme Court did not have the right to
issue the mandamus. He determined this by finding that the law under which
Marbury was seeking to have the mandamus issued, the Judiciary Act of 1789,
violated Article III, Section 2 of the U.S. Constitution. Marshall held that the
Judiciary Act exceeded the original jurisdiction given to the courts in the
Constitution, and that the Constitution trumped a legislative act of Congress.
Marshall went on to say:
“If . . . the constitution is superior to any ordinary act of the legislature; the
constitution, and not such ordinary act, must govern the case to which they
both apply." Further, “a law repugnant to the constitution is void, and . . .
courts, as well as other departments, are bound by that instrument."
Marshall, by this statement and decision, implicitly gave the Supreme Court
the power to declare an act of Congress invalid. As he put it, “[i]t is
emphatically the province and duty of the judicial department to say what the
law is . . . If two laws conflict with each other, the courts must decide on the
operation of each."
Ultimately, Marbury v. Madison is not important for the resolution that the
court reached, or even the underlying facts. It is important because of how
Chief Justice Marshall reached his decision.
The Beginning of Judicial Review
Judicial review is not specifically granted in the U.S. Constitution. John Marshall
did not invent the theory, however. While not explicitly stated, the framers did
discuss judicial review and the power of the judiciary. Alexander Hamilton, also
a Federalist, wrote positively about judicial review, for example.
In winning the case, Thomas Jefferson only noted that the opinion was longer
than it needed to be, which is true enough. However, Jefferson later wrote in a
letter to James Madison (d. 1810) that Marshall's “twistifications in the case of
Marbury . . . shew how dexterously he can reconcile law to his personal
biases." Jefferson, an ardent believer in republicanism, is typically thought to
have preferred all branches of the government to have a say in interpreting the
constitution. He was not a proponent of judicial review. James Madison, who
of course also went on to become president, was less clear in his beliefs.
Lasting Impact
Despite its newly declared power, the Supreme Court under John Marshall
never again declared an act of Congress unconstitutional. Only in 1895 – nearly
a century later – was it used as precedent for judicial review. At the
time Marbury was decided, it was not necessarily seen as a momentous case. It
steadily gained in importance, however, and is now seen by many as the case
that established the judiciary as a co-equal branch of the U.S. Government.
Marbury provides precedent for judicial review dating to the founding fathers,
and the model that Marshall set for an active and powerful judicial branch has
helped to shape constitutions throughout the world.

L. Chandra Kumar v. Union of India 

In 1976 Parliament passed the Constitution (Forty-Second Amendment) Act, 1976 by which
it added a new part in the Constitution i.e. Part- XIV-A entitled as “Tribunals”. This part
contains only two articles- 

Article 323-A giver powers to the Parliament to provide the establishment of tribunals only
for public service matters of the Centre, states, public cooperation, local bodies, and other
public authorities. Under this article, the tribunals can only be established by the
Parliament. In simple words, the Parliament has provided with the powers to adjudicate the
disputes related to public service matters from all types of courts and place it before the
administrative tribunals. After the amendment, the Parliament passed the Administrative
Tribunal Act, 1985 in pursuance with Article 323-A. It allowed the Centre to establish one
Central Administrative Tribunal, State Administrative Tribunals, and Joint Administrative
Tribunal (a joint tribunal for two or more states) for rapid, effective, and just justice to the
aggrieved public authorities. Under this article, there is no question of the hierarchy of
tribunals.   

Article 323-B allowed both the Parliament and the State Legislature to provide for the
establishment of tribunals for the disputes relating to the following: industrial and labour
disputes, taxation, land reforms, foreign exchange, election to Parliament and State
Legislature, import and export, rent and tenancy rights, the ceiling on urban property, and
foodstuffs. Under this article, a hierarchy of tribunals may be created by the State
Legislature and the Parliament. 

Many writ petitions, special leave petitions, and civil appeals, the separate decisions by the
high court and several provision in different acts and legislations all pertaining to the
constitutional validity of Article 323-A(2)(d), Article 323-B(3)(d), the Administrative Tribunal
Act, 1985, and the Tribunals constituted under Part XIV-A of the Indian Constitution can be
effective and efficient substituted for the courts in discharging the power of judicial review
were grouped together in this case.

Main Issues

1. Whether the Tribunals constituted and functioning under the Act can be said to be
effective substitutes for the High Courts in discharging the power of Judicial review?
 If not, then what are the amendments required to make the tribunals conform to
their founding objectives?

2. Whether the power conferred by 3(d) of Article 323-B or by 2(d) of Article 323-A
upon State Legislatures or Parliament exclude the jurisdiction of all courts (except
Supreme Court under Article 136) in respect of complaints and disputes referred in
clause 1 of Article 323-A, and runs counter to the power of judicial review conferred
under Article 226/227 and Article 32 on High Courts and Supreme Court
respectively?

3. Whether the Tribunals possess the competence to test the constitutional validity of a
statutory rule which are constituted under Article 323-A or under Article 323-B of
the Indian Constitution?

The argument from the side of the petitioner are as follows-

 They argued about the constitutionality of the Tribunals created under the Act and
the provisions such as Article 323-A(2)(d) and Article 324-B(3)(d) under the
Constitution of India. The exclusive power provided to the tribunals to exercise the
jurisdiction vested in Articles 226 and 227 for the High Courts and the power to
interpret the provisions of the constitution on which only constitutional courts have
sole right are susceptible as these rights cannot be bestowed to the quasi-judicial
bodies on which executive have its influences.  

 Articles 323A and 324B under Part XIV-A of the Indian Constitution allow the
Parliament to affect the sacrosanct jurisdiction of the Supreme Court as per given in
Article 32 of the Constitution and therefore liable to be struck down.

 It was argued that the impugned provisions are unconstitutional as they exclude the
jurisdiction of the High Courts ( under Article 226 of the Constitution) and the
Supreme Court (under Articles 32 of the Constitution). This is for the reason that: 

1. Parliament cannot, in the exercise of its constituent power, confer power on the
State Legislatures and itself to exclude the constitutional jurisdiction conferred on
the High Courts (Article 226 of the Constitution) and the Supreme Court (Article 32 of
 the Constitution) as the power to amend the Constitution can be conferred on the
Legislatures neither state nor central and 

2. The provisions under the Act also violate the basic structure of the Constitution
insofar as they take away the power of judicial review vested in the Supreme Court
(Article 32 of the Indian Constitution) and in the High Courts (Articles 226 and 227 of
the Constitution). While the Tribunals constituted under Articles 323A and 323B of
the Indian Constitution can be vested with the power of judicial review over
administrative action but the power of same on legislative action cannot be
conferred upon them. This proposition that only constitutional courts i.e. High
Courts and Supreme Court have been vested with the power of judicial review of
legislative action flows from the judgment given in the Kesavananda Bharati v. State
of Kerala case (1973). The relevant observations in Keshvananda Bharati's case, show
that there is an inherent distinction between the individual provisions of the
Constitution and the basic features of the Constitution. While the basic features of
the Constitution cannot be changed even by amending the Constitution each and
every provision of the Constitution can be amended under Article 368. The majority
judgments in Keshavananda Bharti's case emphatically state that the concept of
separation of powers is a basic feature of the Constitution. It, therefore, follows that
the powers of judicial review, which is a necessary concomitant of the independence
of the judiciary, is also a basic feature of our Constitution. However, it does not
follow that specific provisions such as Article 32 or Article 226 are by themselves part
of the basic structure of the Constitution. In this regard, the history of Article 31,
which contained a Fundamental Right to Property and was shifted from Part III to
Chapter IV of Part XII can be cited by way of an example; (iii) the essence of the
power of judicial review is that it must always remain with the judiciary and must not
be surrendered to the executive or the legislature. Since the impugned provisions
save the jurisdiction of this Court under Article 136, thereby allowing the judiciary to
have the final say in every form of adjudication, it cannot be said that the basic
feature of judicial review had been violated. The constitutional bar is against the
conferment of judicial power on agencies outside the judiciary. However, if within
the judicial set-up, arrangements are made in the interests of bolter administration
 of justice to limit the jurisdiction under Article 32 and 226 of the Constitution, there
can be no grievance. In fact, it is in the interest of better administration of justice
that this Court has developed a practice, even in the case of violation of
Fundamental Rights, of requiring parties to approach the concerned High Court
under Article 226 instead of directly approaching this Court under Article 32 of the
Constitution. This, undoubtedly, has the effect of limiting the jurisdiction of this
Court under Article 32 but, being necessary for proper administration of justice,
cannot be challenged as unconstitutional.

 The decision in the case of Sampath Kumar v. Union of India (2016) was given on the
hope that the Tribunals established would be effective and efficient substitutes but it
was neither legally nor factually correct. It was held in this case that Section 28 of the
Administrative Tribunal Act, 1985 which excludes the jurisdiction of the High Courts
(Articles 226 and 227) is not unconstitutional. It was also held that this section does
not totally bar the provision of judicial review. The tribunals established under the
Act are the substitute of the constitutional court- High Courts and will deal with all
service matters even involving Articles 14, 15, and 16. The petitioner argued that
there is a huge difference between the High Court and these Tribunals. 

 They argued that the High Courts have been in existence since the 19th century and
people have gained confidence in it. The tribunal is a new creation of the executive
that would not be able to create similar confidence in the people and a positive
environment overnight.

 They argued that Section 5(6) of the said Act, allows only a single member bench of a
Tribunal to test the constitutional validity of a statutory provision which is also
unconstitutional.

The argument from the side of the respondent are as follows-

 The jurisdiction of the Supreme Court (Article 32 of the Constitution) is sacrosanct

and is indisputably a part of the basic structure of the Indian Constitution. This
position had been clearly enunciated by the Parliament well before the 42nd
Amendment and Administrative Tribunal Act was conceived. Therefore the position
of the Supreme Court jurisdiction is not affected in any way. However, the
 jurisdiction of the High Court under Articles 226 and 227 was sought to be removed
by creating an alternative institution.

 Articles 323A and 323B of the Indian Constitution do not exclude the supervisory
jurisdiction of the High Courts on all the Tribunals established within its territorial
jurisdiction. Therefore the High Court still has the power as a supervisory jurisdiction
and corrective mechanism body.

 It was argued that the Tribunal should allow exercising the jurisdiction under Article
226 and 227 of the Indian Constitution.

 It was said that the theory enunciated by the petitioner from the case of Sampath
Kumar v. UOI (2016) is not valid, it is based on sound considerations and doesn’t
require any reconsideration.   

JUDGEMENT

The judgment was delivered by the Constitution Bench of seven judges.

The bench observed that Clause 2(d) of Article 323A and Clause 3(d)
of Article 323B, to the extent they exclude the jurisdiction of the High
Courts and the Supreme Court under Articles 226/227 and 32 of the
Constitution, are unconstitutional. Section 28 of the Act and the
"exclusion of jurisdiction" clauses in all other legislations enacted under
the aegis of Articles 323A and 323B would, to the same extent, be
unconstitutional. The jurisdiction conferred upon the High Courts under
Articles 226/227 and upon the Supreme Court under Article 32 of the
Constitution is part of the inviolable basic structure of our Constitution.
While this jurisdiction cannot be ousted, other courts and Tribunals may
perform a supplemental role in discharging the powers conferred by
Articles 226/227 and 32 of the Constitution. The Tribunals created
under Article 323A and Article 323B of the Constitution are possessed of
the competence to test the constitutional validity of statutory provisions
and rules. All decisions of these Tribunals will, however, be subject to
scrutiny before a Division Bench of the High Court within whose
jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless,
continue to act like Courts of first instance in respect of the areas of law
for which they have been constituted. It will not, therefore, be open for
litigants to directly approach the High Courts even in cases where they
 question the vires of statutory legislations (except where the legislation
which creates the particular Tribunal is challenged) by overlooking the
jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and
constitutional and is to be interpreted in the manner we have indicated.

it was doubted whether it was justified in exercising such a power, Patanjali Sastri, CJ, While
emphatically laying down the foundation of the principle held as follows State of Madras v.
V.G. Row : 1952CriLJ966 :
Our Constitution contains express provisions for judicial review of legislation as to its
conformity with the Constitution, unlike as in America where the Supreme Court has
assumed extensive powers of reviewing legislative acts under cover of the widely
interpreted "due process" clause in the Fifth and Fourteenth Amendments. If, then, the
courts, in this country face up to such important and none too easy task, it is not out of any
desire to tilt at legislative authority in a crusader's sprit, but in discharge of a duty plainly
laid upon them by the constitution. This is especially true as regards the "fundamental
rights", as to which this Courts has been assigned the role of a sentinel on the qui vive.
While the Court naturally attaches great weight to the legislative judgment, it cannot desert
its own duty to determine finally the constitutionality of an impugned statute.
In Indira Nehru Gandhi v. Raj Narain, five-Judge Constitution Bench had to, inter alia, test
the Constitutional validity of provisions which ousted the jurisdiction of all Courts including
the Supreme Court, in election matters. Consequently, the Court was required to express its
opinion on the concept of judicial review. Though all five Judges delivered concurring
judgments to strike down the offending provision, their views on the issue of judicial review
are replete with variations. Ray, C.J., was of the view that the concept of judicial review,
while a distinctive feature of American Constitutional Law, is not founded on any specific
Article in our Constitution. He observed that judicial review can and has been excluded in
several matters; in election matters, judicial review is not a compulsion. He, however, held
that our Constitution recognises a division of the three main functions of Government and
that judicial power, which is vested in the judiciary cannot be passed to or shared by the
Executive or the Legislature. (Paras 32, 43, 46, 52). Khanna, J. took the view that it is not
necessary, within a democratic set up, (hat disputes relating to the validity of elections be
settled by Courts of Law; he, however, felt that even so the legislature could not be
permitted to declare that the validity of a particular election would act be challenged before
any forum and would be valid despite the existence of disputes. (Para 207). Mathew, J. held
that whereas in the United States of America and in Australia, the judicial power is vested
exclusively in Courts, there is no such exclusive vesting of judicial power in the Supreme
Court of India and the Courts subordinate to it. Therefore, the Parliament could, by passing
a law within its competence, vest judicial power in any authority for deciding a dispute.
(Paras 322 and 323). Beg, J. held that the power of Courts to test the legality of ordinary
laws and constitutional amendments against the norms laid down in the Constitution flows
from the 'supremacy of the Constitution' which is a basic feature of the Constitution. (Para
622). Chandrachud, J. felt that the contention that judicial review is a part of the basic
structure and that any attempt to exclude the jurisdiction of courts in respect of election
matters was unconstitutional, was too broadly stated. He pointed out that the Constitution,
as originally enacted, expressly excluded judicial review in a large number of important:
matters. The examples of Articles 136(2) and 226(4) [exclusion of review in laws relating to
armed forces], Article 262(2) [exclusion of review in river disputes] Article 103(1) [exclusion
of review in disqualification of Members of Parliament], Article 329(a) [exclusion of review
in laws relating to delimitation of constituencies and related matters], were cited for
support. Based on this analysis, Chandrachud, J. came to the conclusion that since the
Constitution, as originally enacted, did not consider that judicial power must intervene in
the interests of purity of elections, judicial review cannot be considered to be a part of the
basic structure in so far as legislative elections are concerned.
65. The foregoing analysis reveals that the Judges in Indira Gandhi's case, all of whom had
been party to Kesavananda Bharati's case, did not adopt similar approaches to the concept
of judicial review. While Beg, J. clearly expressed his view that judicial review was a part of
the basic structure of the Constitution, Ray, CJ and Mathew, J. pointed out that unlike in the
American context, judicial power had not been expressly vested in the judiciary by the
Constitution of India. Khanna, J. did not express himself on this aspect, but in view of his
emphatic observations in Kesavananda Bharati's case, his views on the subject can be
understood to have been made clear. Chandrachud, J. pointed out that the Constitution
itself excludes judicial review in a number of matters and felt that in election matters,
judicial review is not a necessary requirement.
 In his minority judgment in Minerva Mill's case, Bhagwati, J. held as follows:
..The Constitution has, therefore, created an independent machinery for resolving these
disputes and this independent machinery is the judiciary which is vested with the power of
judicial review to determine the legality of executive action and the validity of legislation
passed by the legislature. It is the solemn duty of the judiciary under the Constitution to
keep the different organs of the State such as the executive and the legislature within the
limits of the power conferred upon them by the Constitution. This power of judicial review is
conferred on the judiciary by Articles 32 and 226 of the Constitution..The judiciary is the
interpreter of the Constitution and to the judiciary is assigned the delicate task to determine
what is the power conferred on each branch of government, whether it is limited, and if so,
what are the limits and whether any action of that branch transgresses such limits. It is for
the judiciary to uphold the constitutional values and to enforce the constitutional
limitations. That is the essence of the rule of law, which inter alia requires that "the exercise
of powers by the government whether it be the legislature or the executive or any other
authority, be conditioned by the Constitution and the law". The power of judicial review is
an integral part of our constitutional system the power of judicial review..is
unquestionably..part of the basic structure of the Constitution. Of course, when I say this I
should not be taken to suggest that effective alternative institutional mechanisms or
arrangements for judicial review cannot be made by Parliament.
In Kihoto Hollohan v. Zachillu and Ors., a five-Judge Constitution Bench had to, inter alia,
consider the validity of Paragraph 7 of the Tenth Schedule to the Constitution which
excluded judicial review. The judgment for the minority, delivered by Verma, J. struck down
the provision on the ground that it violated the rule of law which is a basic feature of the
Constitution requiring that decisions be subject to judicial review by an independent outside
authority. (Paras 181-182). Though the majority judgment delivered by Venkatachaliah, J.
also struck down the offending provision, the reasoning employed was different. The
judgment for the majority contains an observation to the effect that, in the opinion of the
judges in the majority, it was not necessary for them to express themselves on the question
whether judicial review is part of the basic structure of the Constitution. (Para 120).