Judicial Review and Schedule 9

Project on the Constitution of India
Judicial Review
Project on the Indian Constitution
Submitted by,
Akashdeep Pandey
4th semester
Faculty of Law
Jamia Millia Islamia
Contents
Judicial review and the 9th schedule
Page 1
Introduction
History of Judicial Review
Judicial review in India
I.
II.
Rule of Law
Separation of Power & the Doctrine of Checks and Balances
Validity of Constitutional amendments

Schedule 9 of the Indian Constitution
Administrative law
Methods of enforcement of Judicial review
Purposes of Judicial review
Conclusion
Acknowledgement
Writing the Acknowledgement for the project in the subject of Constitution is a
fairly simple undertaking for anyone who has attended even a single class of Dr.
Page 2
Asad Malik. The clarity, the command and the humour he brings into every class is
infectious, making any student believe that there can be no easier subject that the
Indian Constitution and that anyone can master it, provided he gives the subject the
respect and recognition that Sir himself gives the subject.
Furthermore I would like to thank all those people who gave the subject their time
and wrote books which I eventually referred. In this matter, I would particularly
like to thank Dr. C. D. Jha, whose book was precise and the largest reference in
this work.
Without the contribution of the above said people I could have never completed
this project.
In addition, I would also like to thank my friends, without their help, I could have
never typed out this project.
Introduction
The Indian Constitution was adopted on 26th January 1950, i.e. exactly 894 days
after the country got independence from the crutches of the British Rulers. The
Framing of the Indian constitution took a lot of time, hence it can be seen that it is
also the largest constitution in the World, having incorporated what the framers felt
Page 3
were the best of laws and doctrines from the world over into the constitution and
also keeping in view the Indian society and the compatibility of such laws in the
said society. The need for the constitution to be in conformity of the needs of the
society and the people it governs is the basic reason why a provision of Judicial
Review has been incorporated in the Indian Constitution.
The idea of Judicial Review has been included in the Indian constitution, not as
any separate provision, but in the very spirit of the Constitution similar to the idea
of federalism, which has not been mentioned anywhere in the constitution and yet
is seen as an inalienable part of the same. The power to enact new laws and amend
the constitution lies with the Legislature, a body of officials elected by the people
who represent the will of the people in their decisions. In those cases where this
body makes laws or amends laws in such a way wherein the law or amendment is
in direct contravention of the basic structure of the Constitution 1 or any rights
guaranteed by the constitution in Part III.
A good constitution must possess some fundamental limitations and restrictions on
the power to govern and legislate. The limitations and restrictions are direct or
indirect, express or implied. A good constitution must also provide for the power
of Judicial Review over Constitutional Amendments and Legislative Acts. In a
Federal state, such impartial institution is unquestionably needed to maintain the
federal balance2.
1
2
Keshavananda Bharti v. State of Kerala AIR 1973 SC 1461

Brief Outline to the book, Judicial Review of Legislative Acts, C.D. Jha, 2009, LexisNexis Butterworths Wadhwa
Page 4
History of Judicial Review

It is to be noted that the idea of Judicial Review was first propounded by Coke,
C.J. He stated that any law that was against public sentiment and common morality
and did not appeal to the common right and reason was declared void.
The relevant passage of Bonhams case pronounced by Coke, C.J. reads as follows:
And it appears in our books, that in many cases, the common law will control the
Acts of the Parliament, and sometimes adjudge them to be utterly void, for when
an Act of the Parliament is against the common right and reason, or repugnant, or
Page 5
impossible to perform, the common law will control it, and adjudge such Act to be
void3.
It has been noted that the above statement was nothing but an obiter dicta and was
not in any way related to the final decision in the case, thus not being binding in
practice4.
Later the rights given to the British Parliament were increased to such extents by
making the Parliament sovereign, thus pulling it out of the ambit of the jurisdiction
of the judiciary in the country. This effectively put an end to any scope of Judicial
review in the country.
This was noted by an American Judge5 in the Van Homes Lesees case6,
Some of the Judges in England have had the boldness to assert that an act of
Parliament made against natural equity is void; but that opinion contravenes the
general position, that the validity of the act of the Parliament cannot be drawn into
question by the Judicial department. It cannot be disputed and must be obeyed. The
power of the parliament is absolute and transcendent, it is omnipotent in the scale
of political existence.
In 1842, the House of Lords held,
All that a Court of Justice can do is to look into the Parliament roll: if from that it
should appear that a bill has passed both houses and received Royal Assent, no
Court of Justice can inquire into the mode in which it was introduced into the
Parliament, nor into what was done previous to its introduction, or what was
Dr. Bonhams case 8 Co, Rep 113b, at 118a

Constitutional and Administrative Law, O Hood Phillips, 1967, Sweet &Maxwell, London, p 50
5
Justice Patterson
6
Van Homes Lessee v. Dorrance 2 Dallas 304 (1795)
4
Page 6
passed in Parliament during the progress in its various stages through both the
Houses7.
The same was also noted by Justice M Hidayatullah,
The Power of Judicial Review was abandoned in England some three hundred
years ago after which the sovereignty of the Parliament is beyond question8
After the said case in England and the eventual fall of the doctrine of Judicial
Review in the country, there was much activism in the USA for the adoption of
similar ideas so as to strengthen the working of the state and in order to protect the
rights of the people, there were the famous judiciary debates in the Senate in which
the power of the Judges for Judicial Review was vigorously asserted, Senator
Morris in the Judiciary Debates of 1802 said,
The Power of the courts to declare legislation invalid is derived from an authority
higher than the constitution, i.e. the constitution of man, from the nature of things,
from the necessary process of human affairs.9
In 1803, the fourth Chief Justice of America, Marshall, C.J. wrote the historic
decision of Marbury v. Madison10, in this decision he declared that the legislature
has no authority to make laws repugnant to the constitution and in the case of
constitutional violations, the court has the absolute and inherent right to declare the
Legislative Act void. In effect this was the first decision that established the
doctrine of Judicial Review in the ratio decidendi of the judgement. Bernard
Schwartz is of the view that this case has much historical importance as it is the
Edinburgh and Dalkeith Ry v. Wanchope (1842) 8 Cl & F 710

Democracy in India and the Judicial Process, M Hidayatullah, 1966, Asia Publishing House, Bombay, p 65
9
Judicial Review of Legislative Acts, C.D. Jha, 2009, LexisNexis Butterworths Wadhwa
10
1 Cr 137 (1803), p 170
8
Page 7
first
case
establishing
the
power
of
the
Supreme
Court
to
review
constitutionality11.
Justice Marshall through his various constitutional decisions established these
principles:
The people as a whole are sovereign
The Government is the government of the people, it emanates from the
people; its powers are granted by the people and it is to be exercised for the
benefit of the people.
The Constitution is supreme.
The Central Laws have supremacy over the State laws.
A law repugnant to the Constitution is void.
The court has power to determine the constitutionality of a Legislative Act
and declare it void when it is repugnant to the constitution.
A legislation can be declared unconstitutional only in clear case of
unconstitutionality and not in any doubtful case.
Doctrine of implied powers can be invoked to expound the Federal powers.
The Constitution is a living instrument adaptable to all new conditions of
life.
11
The Reins of Power, A Constitutional History of the United States, Bernard Schwzarts, 1963, Hill & Wang, New
York, p 51
Page 8
Judicial review in India

Judicial review has its basis on the following basic principles that also form the
basis of the Constitution of India, they are,
1. Rule of Law
2. Separation of Power
3. Doctrine of Checks and Balances
Further examination of these principles is needed in order to understand the basic
idea behind the incorporation of an idea such as Judicial Review in the
Constitution of India.
Rule of Law
Article 14 of the Constitution of India has propounded the idea of rule of law,
wherein it guarantees that every person within the territorial confides of India shall
not be denied equality and shall be governed equally in the view of the law.
Dicey said:
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It means, in the first place, the absolute supremacy or predominance of regular

law as opposed to the influence of arbitrary power, and excludes the existence of
arbitrariness, of prerogative, or even of wide discretionary authority on the part of
the government.12
Lord Chief Justice Coke quoting Bracton said in the case of Proclamations13,
"The King himself ought not to be subject to man, but subject to God and the law,
because the law makes him King".
The essential characteristic of the rule of law are:
The supremacy of law, which means that all persons (individuals and
government) are subject to law.
A concept of justice which emphasizes interpersonal adjudication, law
based on standards and the importance of procedures.
Restrictions on the exercise of discretionary power.
The doctrine of judicial precedent.
The common law methodology.
Legislation should be prospective and not retrospective.
An independent judiciary.
The exercise by Parliament of the legislative power and restrictions on
exercise of legislative power by the executive.
An underlying moral basis for all law.
12
13
Law of constitution, A.V. Dicey, 1885

(1610) 77 ER 1352
Page 10
Separation of Power & the Doctrine of Checks and Balances

There are three distinct activities in every government through which the will of
the people are expressed. These are the legislative, executive and judicial functions
of the government. Corresponding to these three activities are three organs of the
government, namely the legislature, the executive and the judiciary. The legislative
organ of the state makes laws, the executive enforces them and the judiciary
applies them to the specific cases arising out of the breach of law. Each organ
while performing its activities tends to interfere in the sphere of working of another
functionary because a strict demarcation of functions is not possible in their
dealings with the general public. Thus, even when acting in ambit of their own
power, overlapping functions tend to appear amongst these organs.
Though, just like American constitution, in Indian constitution also, there is
express mention that the executive power of the Union and of a State is vested by
the constitution in the President and the Governor, respectively, by articles 53(1)
and 154(1), but there is no corresponding provision vesting the legislative and
judicial powers in any particular organ. It has accordingly been held that there is no
rigid separation of powers. Although prima facie it appears that our constitution
has based itself upon doctrine of separation of powers. Judiciary is independent in
its field and there can be no interference with its judicial functions either by the
executive or the legislature. Constitution restricts the discussion of the conduct of
any judge in the Parliament. The High Courts and the Supreme Court has been
given the power of judicial review and they can declare any law passed by
parliament as unconstitutional. The judges of the S.C. are appointed by the
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President in consultation with the CJI and judges of the S.C. The S.C. has power to
make Rules for efficient conduction of business.
It is noteworthy that A. 50 of the constitution puts an obligation over state to take
steps to separate the judiciary from the executive. But, since it is a DPSP, therefore
its unenforceable.
In a similar fashion certain constitutional provisions also provide for Powers,
Privileges and Immunities to the MPs, Immunity from judicial scrutiny into the
proceedings of the house, etc. Such provisions are thereby making legislature
independent, in a way. The Constitution provides for conferment of executive
power on the President. His powers and functions are enumerated in the
constitution itself. The President and the Governor enjoy immunity from civil and
criminal liabilities. But, if studied carefully, it is clear that doctrine of separation
of powers has not been accepted in India in its strict sense. The executive is a part
of the legislature. It is responsible to the legislature for its actions and also it
derives its authority from legislature. India, since it is a parliamentary form of
government, therefore it is based upon intimate contact and close co-ordination
among the legislative and executive wings. However, the executive power vests in
the President but, in reality he is only a formal head and that, the Real head is the
Prime minister along with his Council of Ministers. The reading of Art. 74(1)
makes it clear that the executive head has to act in accordance with the aid and
advice given by the cabinet.
Generally the legislature is the repository of the legislative power but, under some
specified circumstances President is also empowered to exercise legislative
functions. Like while issuing an ordinance, framing rules and regulations relating
to Public service matters, formulating law while proclamation of emergency is in
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force. These were some instances of the executive head becoming the repository of
legislative
functioning.
President
performs
judicial
functions
also.
On the other side, in certain matters Parliament exercises judicial functions too. It
can decide the question of breach of its privilege, and in case of impeaching the
President; both the houses take active participation and decide the charges.
Judiciary, in India, too can be seen exercising administrative functions when it
supervises all the subordinate courts below. It has legislative power also which is
reflected in formulation of rules regulating their own procedure for the conduct and
disposal of cases
So, its quite evident from the constitutional provisions themselves that India,
being a parliamentary democracy, does not follow an absolute separation and is,
rather based upon fusion of powers, where a close co-ordination amongst the
principal organs is unavoidable and the constitutional scheme itself mentions it.
The doctrine has, thus, not been awarded a Constitutional status. Thus, every organ
of the government is required to perform all the three types of functions. Also,
each organ is, in some form or the other, dependant on the other organ which
checks and balances it. The reason for the interdependence can be accorded to the
parliamentary form of governance followed in our country. But, this doesnt mean
that this doctrine is not followed in India at all.
Except where the constitution has vested power in a body, the principle that one
organ should not perform functions which essentially belong to others is followed.
This observation was made by the Supreme Court in the re Delhi Laws Act case,
wherein, it was held by a majority of 5:2, that, the theory of separation of powers is
not part and parcel of our Constitution. But, it was also held that except for
exceptional circumstances like in A. 123, A. 357, it is evident that constitution
Page 13
intends that the powers of legislation shall be exercised exclusively by the

Legislature.
As Kania, C.J., observedAlthough in the constitution of India there is no express separation of powers, it is
clear that a legislature is created by the constitution and detailed provisions are
made for making that legislature pass laws. Does it not imply that unless it can be
gathered from other provisions of the constitution, other bodies-executive or
judicial-are not intended to discharge legislative functions?
From the above explanation, it is seen that the power and the duty of the Judiciary
has been explained with clarity, i.e. to interpret the law. Thus, the function of the
judiciary can also be seen with equal clarity, If any entity looks to pass any law
that is outside the ambit of the interpretation of the law or ultra vires, then it is the
duty of the court to take corrective steps through the powers vested in it through
the various processes such as judicial review.
Validity of Constitutional amendments

The constitutional amendment in India is a justiciable issue and comes within the
purview of Judicial Review. Abuse of amending power is a great constitutional
vice and such abuse occurs when the people are deprived of their fundamental
Page 14
rights guaranteed by the constitution, when the limitations and formalities of the
constitutional amendments are not followed.
A summary of the challenge to the validity of constitutional amendments in India
can be tabulated as follows,
When the 1st Constitutional Amendment of 1951 was passed, its validity
was challenged in the Supreme Court. But the Supreme Court upheld the
validity of the Constitutional amendment14.
Six Writ Petitions were filed in the Supreme Court in 1964 to challenge the
validity of the Seventeenth Constitutional Amendment of 1964. These writ
petitions were heard by five Judges presided over by Chief Justice PB
Gajendragadkar, who gave the majority decision in October, 1964. The
Constitution Bench by the majority (5:2) held that the Seventeenth
Amendment of the Constitution was constitutionally valid and was not
violative of Art. 368. It was urged in this case to review the earlier decision
in Shankari Prasads case15, but on reconsideration of the matter, the
Supreme Court came to the same conclusion.
The matter of the validity of the constitutional amendment regarding
Fundamental Rights again came up before the Supreme Court in Golaknath
v. State of Punjab16 and the Supreme Court laid down the following
principles:
1. The fundamental rights have a transcendental position under the
constitution of India and are beyond the reach of the Parliament.
14
Shankari Prasad Singh v. Union of India AIR 1951 SC 458

Sajjan Singh v. State of Rajasthan AIR 1965 SC 845, para 47
16
AIR 1967 SC 1643
15
Page 15
2. The constitution by its scheme has given a place of permanence to

the fundamental freedoms. Parliament is incapable of modifying,
restricting or impairing fundamental rights.
3. The question of the validity of a constitutional amendment is not a
political question and is the subject of Judicial Review.
4. The constitutional amendment has the force of law under Art. 13 (2)
of the Constitution and as such it comes under the area of Judicial
Review, and if the amendment interferes with the fundamental
rights, it is void.
5. The power of amendment of the constitution is derived by the
parliament from Art. 245, 246 and 248 of the constitution and not
from Art. 368 which deals with procedure. Thus, the amendment is
not a constitutional process, but it is a legislative process.
6. The Constitution ( 1st amendment) Act, 1951, The Constitution (4th
amendment) Act, 1955 and the Constitution (17th amendment) Act,
1964 are invalid but having been acquiesced for a long time by the
previous constitutional decisions, are deemed to be valid and are not
liable to be declared invalid.
7. On the basis of the doctrine of Prospective Over-ruling, Parliament
shall have no right to amend the Constitution in future curbing the
fundamental Rights guaranteed in Part III of the Constitution.
8. The characteristics of the doctrine of Prospective Over-ruling were
defined as,
It can be invoked only in matters arising under the Constitution and
can be applied only by the Supreme Court. The nature of its
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application depends on the discretion of the Supreme Court in

accordance with justice of the case or matter before it.17
The decision of the Supreme Court in Golaknaths case had only a notional
effect and had no practical effect to redress the injury already caused by the
amendments. Of course, it put a restraint on the future actions of the Indian
Parliament.
The 24th amendment to the constitution provided that Art. 13 of the
constitution would not apply to any amendment made in the Constitution
under Art. 368. The constitutional validity of the 24th amendment was
questioned before the Supreme court in Keshavananda Bharati v. State of
Kerala18,
A larger bench of thirteen Judges upheld the validity of the Amendment in
the constitution. It was, however, held that the basic structure or
framework of the Constitution cannot be amended. The earlier decision in
I. C. Golaknath was hence over-ruled.
In a recent case, IR Coelho v. State of TN19 (9th schedule case), the
principles laid down in the judgement of Keshavananda Bhartis case were
reiterated.
Other case that should be noted in the study of Judicial Review are,
Minerva Mills vs. Union of India20
It was observed by the Supreme Court that the clauses of art. 31-C as introduced
by the Constitution (42nd Amendment) Act, 1976, which required to take away the
17
In the decision given by Subba Rao, C.J. in Golaknaths case, para 51

AIR 1973 SC 1461, (1973) 4 SCC 225
19
AIR 2007 SC 861, (2007) 2 SCC 1
20
AIR 1980 SC 1789
18
Page 17
power of judicial review were unconstitutional. However, judicial review was not
held to be part of the basic structure of the Constitution by the majority in this
decision, although Bhagwati J in his minority decision traced the power of judicial
review to Arts. 32 and 226 and observed it to be a part of the basic structure of the
Constitution, and if taken away by a constitutional amendment would amount to
subversion of the Constitution.
State of Madras v. V. G. Row21
Chief Justice Patanjali Shastri held that:
. Our Constitution contains express provision for judicial review of legislation
as to its conformity with the Constitution, 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 spirit, 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 court has been assigned the role of a sentinel on the qui
vive. While the court naturally attaches great weight to the legislative judgment, it
may not desert its own duty to determine finally the Constitutionality of an
impugned statute.
Section 15 (2) (b), Criminal Law Amendment Act, 1908 as amended by Madras
Act 1950 gave wide discretionary power to the State Government to declare any
association as unlawful. The Court Struck down the section as being
unconstitutional because it allows the administrative authority to exercise its
discretion on subjective satisfaction without permitting the grounds to be judicially
tested.
21
1952 SCR 597
Page 18
Indira Nehru Gandhi v. Raj Narain22

In this case relating to Indira Gandhis election as the Prime Minister of the
country, the constitutional validity of the Constitution (39 th amendment) Act, 1975
was challenged. The said amendment had the following provisions,
1. Article 71 has been substituted by a new Article 71. The new Article 71
states that subject to the provisions of the Constitution, Parliament may by
law regulate any matter relating to or connected with the election of a
President or Vice-President including the grounds on which such election
may be questioned.
2. The second feature is insertion of Article 329-A in the Constitution. Clause 4
of Article 329-A is challenged in the present appeals. There are six clauses
in Article 329-A.
I.
The first clause states that subject to the provisions of Chapter II of

Part V (except Sub-clause (e) of Clause (1) of Article 102) no election
to either House of Parliament of a person who holds the office of
Prime Minister at the time of such election or is appoint ed as Prime
Minister after such election; and to the House of the People of a
person who holds the office of Speaker of that House at the time of
such election or who is chosen as the Speaker for that House after
such election, shall be called in question, except be fore such authority
(not being any such authority as is referred to in Clause (b) of Article
329) or body and in such manner as may be provided for by or under
any law made by Parliament and any such law may provide for all
22
AIR 1975 SC 2299
Page 19
other matters relating to doubts and dispute in relation to such election

including the grounds on which such election may be questioned.
II.
Under the second clause the validity of any such law as is referred to
in Clause (1) and the decision of any authority or body under such law
shall not be called in question in any court.
III.
The third clause states that where any person is appointed as Prime
Minister or, as the case may be, chosen to the office of the Speaker of
the House of the People, while an election petition referred to in
Article 329(b) in respect of his election to either House of Parliament
or, as the case may be, to the House of the People is pending, such
election petition shall abate upon such person being appointed as
Prime Minister or, as the case may be, being chosen to the office of
the Speaker of the House of the People, but such election may be
called in question under any such law as is referred to in Clause (1).
IV.
The fourth clause which directly concerns the present appeals states
that no law made by Parliament before the commencement of the
Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it
relates to election petitions and matters connected therewith, shall
apply or shall be deemed ever to have applied to or in relation to the
election of any such person as is referred to in Clause (1) to either
House of Parliament and such election shall not be deemed to be void
or ever to have become void on any ground on which such election
could be declared to be void under any such law and notwithstanding
any order made by any court, before such commencement, declaring
such election to be void, such election shall continue to be valid in all
respects and any such order and any finding on which such order is
Page 20
based shall be and shall be deemed always to have been void and of
no effect.
V.
The fifth clause states that any appeal or cross appeal against any such
order of any court as is referred to in Clause (4) pending immediately
before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, before the Supreme Court shall be disposed
of in conformity with the provisions of Clause (4).
VI.
The sixth clause states that the provisions of this Article shall have
effect notwithstanding anything contained in the Constitution.
The third feature in the Constitution (Thirty-ninth Amendment) Act is that

in the Ninth Schedule to the Constitution after Entry 86 and before the
Explanation several Entries Nos. 87 to 124 inclusive are inserted. The
Representation of the People Act, 1951, the Representation of the People
(Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 are
mentioned in Entry 87.
The respondent contended that the Representation of the People (Amendment) Act,
1974 and the Election Laws (Amendment) Act, 1975 referred to as the Amendment
Acts, 1974 and 1975 did not enjoy Constitutional immunity because these Acts
destroy or damage basic structure or basic features.
It was held that the concept of Judicial Review was inherent in the constitution and
that it was inalienable in the view of the basic structure of the Constitution. The
need for Judicial Review is also found in the need to uphold the separation of
power.
Page 21
Other case of note that have discussed the validity and the functionality of Judicial
Review are,
Waman Rao v. Union of India23
In this case it was held that amendments to the Constitution made on or after 24th
April, 1973 by which the Ninth Schedule was amended from time to time by
inclusion of various Acts, regulations therein were open to challenge on the ground
that they, or any one or more of them, are beyond the constituent power of
Parliament since they damage the basic or essential features of the Constitution or
its basic structure.
S. P. Sampath Kumar v. Union of India24
The Supreme Court upheld the validity of art. 323-A and the Act as the necessary
changes suggested by the court were incorporated in the Administrative Tribunal
Act.
S.R. Bommai & Ors. v. Union of India & Ors.25,
It was reiterated that the judicial review is a basic feature of the Constitution and
that the power of judicial review is a constituent power that cannot be abrogated by
judicial process of interpretation. It has been observed that if by a Constitutional
Amendment, the application of Articles 14 and 19 is withdrawn from a defined
field of legislative activity, which is reasonably in public interest, the basic
framework of the Constitution may remain unimpaired. But if the protection of
those Articles is withdrawn in respect of an uncatalogued variety of laws,
fundamental freedoms will become a parchment in a glass case to be viewed as a
matter of historical curiosity.
These observations are very apt for deciding the extent and scope of judicial
review in cases wherein entire Part III, including Articles 14, 19, 20, 21 and 32,
stand excluded without any yardstick.
23
1981 2 SCR 1
1987 (1) SCC 124
25
(1994) 3 SCC 1
24
Page 22
L. Chandra Kumar vs. Union of India26

An authoritative pronouncement on this aspect was rendered by a decision of seven
judges of the Supreme Court in L. Chandra Kumar vs. Union of India. Chief
Justice Ahmadi, speaking for all seven members of the bench, went into an
exhaustive review of all the developments in this regard, and held as under
"It is emphatically the province and duty of the judicial department to say what the
law is..... A law repugnant to the Constitution is void; ... courts as well as other
departments are bound by that instrument.
Justice Ahmadi then went on to examine whether the power of judicial review
vested in the High Courts and in the Supreme Court under articles 226/227 and 32
is part of the basic structure of the Constitution.,
The judges of the superior courts have been entrusted with the task of upholding
the Constitution and to this end, have been conferred the power to interpret it. It is
they who have to ensure that the balance of power envisaged by the Constitution is
maintained and that the Legislature and the executive do not, in the discharge of
their functions, transgress constitutional limitations
Responding to Justice Bhagwathis argument in Minerva Mills that effective
alternate institutional mechanisms or arrangements to exercise the power of
judicial review could be created by Parliament; he put forth the following
argument.
The constitutional safeguards which ensure the independence of the judges of
the superior judiciary are not available to the judges of the subordinate judiciary
or to those who man tribunals created by ordinary legislations. Consequently,
judges of the latter category can never be considered full and effective substitutes
for the superior judiciary in discharging the function of constitutional
interpretation. We, therefore, hold that the power of judicial review over
legislative action vested in the High Courts under article 226 and in this court
under article 32 of the Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure. Ordinarily, therefore, the
26 (1997) 3 SCC 261
Page 23
power of the High Courts and the Supreme Court to test the constitutional validity
of legislations can never be ousted or excluded.
After Chandra Kumar, it is clear that judicial review is an integral part of the
Constitution; and the position is that even though tribunals may be created to
adjudicate on various matters, the jurisdiction of the High Courts under Articles
226 and 227 and that of the Supreme Court under Article 32, wherein lies their
power to question executive and legislative judgment, and scrutinize executive
and legislative action vis--vis the Constitution, cannot be excluded even by a
constitutional amendment
Kihoto Hollohan v. Zachillu27

The present case, in unequivocal terms, is that of destroying the remedy by
enacting para 7 in the Tenth Schedule making a total exclusion of judicial review
including that by the Supreme Court under Article 136 and the High Courts under
Articles 226 and 227 of the Constitution. But for para 7 which deals with the
remedy and not the right, the jurisdiction of the Supreme Court under Article 136
and that of the High Courts under Articles 226 and 227 would remain unimpaired
to challenge the decision under para 6, as in the case of decisions relating to other
disqualifications specified in clause (1) of Articles 102 and 191, which remedy
continues to subsist.
Schedule 9 of the Indian Constitution
27
1992. (1) SCR 686
Page 24
The philosophy underlying our Constitution goes back to the historic Objective
Resolution of Pt. Jawahar Lal Nehru adopted by the Constituent Assembly on
January 22, 1947, which inspired the shaping of the Constitution through all its
subsequent stages: 'The guarantee and security to all the people of India, justice,
social, economic and political; equality of status of opportunity, before the law;
freedom of thought, expression, belief, faith, worship, vocation, association and
action, subject to law and public morality was the objectives for drafting the
Constitution.'
The Constitution of 1949 had a threefold provision for safeguarding the right of
private property.
It not only guaranteed the right of private ownership but also
right to enjoy and dispose of property free from restrictions other than reasonable
restrictions. Firstly, Art. 19 (1) (f) guaranteed to every citizen the right to acquire
any property by any lawful means such as inheritance, personal earnings or
otherwise, and to hold it as his own and to dispose it freely, limited to such
reasonable restrictions, which may not be in excess of the requirement of the
interest of the general public. Secondly, Art.31 (1) guaranteed that no person shall
be deprived of his property saved by the authority of law. Any property seized
without proper legal authority was to be released at the intervention of the Court.
A subject could not be deprived of his property by an executive order.
Thirdly
Art.31 (2) enjoined that if the State wants to acquire private property, it could do so
by acquisition or requisition for public purpose and by payment to the owner by
fixing the amount or specifying the principle upon it, it is to be determined.
The development of the socialist order by the then government led by Pt. Jawahar
Lal Nehru was not possible without vast acquisition of land and for reorganisation
of agricultural holding. The right to property was a serious threat to socialistic
pattern of society. In Kameshwar v. State of Bihar (1951) Patna High Court held
Page 25
the Bihar Land Reforms Act unconstitutional. Allahabad and Nagpur upheld land
reforms, against which appeals were pending in Supreme Court. The Constitution
was amended.
The first constitutional amendment in 1951 exceptions was added to Art.31 (2) and
Art.31-A 31-C were inserted. The first amendment also added in 9th Schedule to
the Constitution with reference to Art.31-B purportedly to save those legislations
dealing with land reforms, which were struck down by the Court. The amended
Art.31-A provided that notwithstanding anything contained in Art.13, no law
providing for acquisition by the State of any estate or any rights, taking over of the
management of any property by the State for a limited period either in public
interest, or to secure proper management of the property, amalgamation of two
corporations in public interest or to secure proper management of any of the
corporations, the extinguishment or modification of any rights of managing agents,
secretaries and treasurers etc. and extinguishment or modification of any rights by
virtue of any agreement, lease or license for searching, or winning, mineral or
mineral oil or premature termination or cancellation of such agreement, lease or
license, shall be deemed to be void on the ground that it is inconsistent with or
takes away or approaches any of the rights conferred by Art.14 or Art.19 of the
Constitution of India. The State law in this regard was to receive this status only
after receiving assent of the President.
Article 31-B validated certain acts and regulations if without prejudice to the
generality of the provision in Art.31-A they were put under 9th Schedule, and that
the provisions thereof shall not be deemed to be void on the ground that they are
inconsistent with, or take away or abridge any of the rights conferred by Part III of
the Constitution. The amendment saved the conflict of such legislations with
fundamental rights.
Page 26
The nine judges' Bench presided by Justice Y.K. Sabharwal, CJI delivered a
unanimous verdict on 11.1.2007 in I.R. Coelho (dead) by L.Rs. Vs. State of Tamil
Nadu and others28, upholding the 'Basic Structure Doctrine', and the authority of
the judiciary to review any such laws, which destroy or damage the basic structure
as indicated in Art.21 read with Art.14, Art.19 and the principles underlying
thereunder, even if they have been put in 9th Schedule after 14th April, 1973 (the
date of the judgment in Kesavananda Bharti's case). The judgment upholds the
right of judicial review and the supremacy of judiciary in interpreting the laws,
which have been constantly under threat. The judgment reiterates and defines the
exclusive right of the judiciary to interpret laws, in an ongoing struggle of
supremacy between legislative and judiciary since 26th Nov. 1949, when the
Constitution was dedicated to the people of India.
The Supreme Court held that if the validity of any 9th Schedule law has already
been upheld by this Court, it would not be open to challenge such law again on the
principles declared by this judgment. However, if a law is held to be violative of
any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th
April, 1973, such a violation/ infraction shall be open to challenge on the ground
that it destroys or damages the basic structure as indicated in Article 21 read with
Article 14, Article 19 and the principles underlying thereunder.
28
supra
Page 27
Administrative Law
The field of administrative law is broadly identified as the law relating to the
control of executive powers. It cannot be readily studied in water-tight
compartments and needs a working knowledge of many principles, precedents and
statutes. The main premise of course is that the functioning of the various
agencies and instrumentalities of the state should demonstrate a clear
commitment to fairness, impartiality and proportionality while maintaining
effective checks against arbitrariness and discrimination.
While these theoretical premises may lend an air of uncertainty, the courts are
frequently called in to give them practical shape when they exercise judicial
review over the decisions of government departments, administrative agencies,
statutory corporations, regulatory authorities and quasi-judicial authorities among
others. The first inquiry is that of examining the competence of a particular body to
create laws, rules, regulations and guidelines among others. In constitutional
Page 28
adjudication, the higher courts are often called on to examine the legislative
competence of either the Parliament or State Legislatures by deciding whether a
particular legislation was within their designated law-making powers, as per the
scheme of the Seventh Schedule of the Constitution. In the domain of
administrative law, the inquiry shifts to whether administrative bodies had the
authority to create rules and regulations or to pass orders on a particular subject.
However, the much broader inquiry relates to the second form of judicial review
which involves the protection of fundamental rights. This empowers the higher
judiciary to examine administrative acts decide whether they are compatible with
the fundamental rights guaranteed to all citizens under Part III of our Constitution.
It is the Courts role of protecting fundamental rights, which has lead to the
evolution of some innovative remedies that have been created by harmoniously
reading in long-established principles of administrative law.
Furthermore, the principles of natural justice have also been recognised as
dimensions of personal liberty and thereby applied to a wide variety of
administrative settings. For example, the rule of audi alterem partem, i.e. no man
should be condemned unheard had historically evolved in the context of criminal
proceedings, wherein it was recognized that the accused should be given a fair
hearing which would give an opportunity to contest charges and rebut the
prosecutions submissions. However, with the passage of time the right to a fair
hearing has also been allowed in the context of administrative proceedings where
parties are likely to face adverse civil consequences.
In State of Orissa v. Dr. Binapani Dei29, it was held that administrative
orders which involve civil consequences have to be passed consistently with the
rules of natural justice. Irrespective of the fact that any statute provides the option
of a hearing or not, ordinarily such an opportunity must be given to the party
unless the same is expressly excluded by the applicable statute. It must be stressed
here that while exercising judicial review, the courts do not exercise ordinary
appellate powers. The intention is not to take away the powers and discretion that
is properly vested with administrative authorities by law and to substitute the same
with judicial determinations on specific facts. Judicial review is a protection and
not an instrument for undue interference in executive functions.
Any administrative action can only be set aside when it is arbitrary,
irrational, unreasonable or perverse.
In Delhi Development Authority v. M/s UEE Electricals Engg. Pvt. Ltd.30,
the Supreme Court made the following observations:
29
30
AIR 1967 4 SC1269

(2004) 11 SCC 213
Page 29
One can conveniently classify under three heads the grounds on which
administrative action is subject to control by judicial review. The first ground is
illegality, the second irrationality, and the third procedural impropriety.
Courts are slow to interfere in matters relating to administrative functions unless
decision is tainted by any vulnerability such as, lack of fairness in the procedure,
illegality and irrationality. Whether action falls in any of the categories has to be
established. Mere assertion in this regard would not be sufficient. The law is
settled that in considering challenge to administrative decisions courts will not
interfere as if they are sitting in appeal over the decision. He who seeks to
invalidate or nullify any act or order must establish the charge of bad faith, an
abuse or a misuse by the authority of its powers. It cannot be overlooked that
burden of establishing mala fides is very heavy on the person who alleges it. The
allegations of mala fides are often more easily made than proved, and the very
seriousness of such allegations demands proof of a high order of credibility.
Methods of Enforcement of Judicial Review

I.
Nature and scope
The pre-dominant method of enforcement of constitutional right is through writs.

Art 32 and 226 of the Constitution have empowered the Supreme Court and high
courts to determine the question of constitutionality of legislative acts as well as
the administrative acts.
II.
Writ jurisdiction under the Constitution
In the Constitution, the right to seek remedy for enforcement of Fundamental

Rights has itself been made fundamental. In India, mandamus or any other
appropriate writ can be issued against the Union or State Government. The
government is not immune from the writ. It can be issued for compelling the
Page 30
performance of the duty as well as forbidding from doing something which is

against the law.
III.
Powers of Supreme Court
a). Art 32: Ambit and Scope

Under the Constitution of India, Supreme court is the coping stone of the
constitutional structure. Art 32 has to be known with Art 13. Art 13 is the
substantive provision and Art 32 lays down the procedure.
In fact, Art 13 is the part which relating to judicial review. Cl (1) of Art 32
guarantees the right to move to the Supreme Court for the enforcement of the
Fundamental Rights. Under Cl (2) the Supreme Court has the power to issue
directions or orders or writs. Cl (3) declares that without prejudice to the powers
conferred on the Supreme Court by Cl (1) and (2), Parliament may by law
empower any other court to exercise within its jurisdiction all or any power
exercisable by the Supreme Court.
b). Fundamental Considerations
1). A relief in the form of declaration accompanied with the relief of injunction can
be given if it be considered to be an appropriate relief31.
2). If a statute is ultra vires it can be so declared and the Supreme Court can
prohibit the enforcement of the ultra vires statute infringing the Fundamental
Right.
3). A petition cannot be refused merely on the grounds that wrong writ has been
prayed.
31
KK Kochuni v. State of Madras AIR 1959 SC 725
Page 31
4). Art 32 does not give the Supreme Court the appellate jurisdiction as envisaged
in Art 136 to 139 of the Constitution.32
The case of Ujjam Bai v. State of Uttar Pradesh has been explained by
Justice Hidayatullah in the case of Coffee Board, Bangalore33.
Art 32 may be availed in the case of:
1. Where the decision is taken under ultra vires statute.
2. Where, although the statute is intra vires, the action is without jurisdiction.
3. Where the principal of natural justice are violated.
4. Whether Art 32 may be enforced against the judiciary.
The fourth point has been settled by a majority decision of the Supreme Court in
the case of Naresh Shridhar Mirajkar v. State of Maharashtra34 , the court held
that such a coarse was not available to the aggrieved party. In the same case
Hidayatullah j. gave the dissenting judgment, his line of approach was quite
different. He observed: when the High Court Judge acts collaterally to cause a
breach of Fundamental Right I am clear that an approach to this court is open
under Art 32.
IV.
Power of High Court
Art 226 is specially provided for the High Courts. Under Art226 High Court has
the power to issue any appropriate writ under the particular circumstances of the
case and for this purpose the High Court can examine the constitutionality of
statute which has been impugned on the grounds of violation of constitutional
32
Ujjam Bai v. State of Uttar Pradesh AIR 1962 SG 1921

Coffee Board Bangalore v. Joint Commercial Tax Officer AIR 1971 SC 870
34
AIR 1967 SC I
33
Page 32
restriction and limitation, and the decision of the High Court may be final, if
there be no appeal in the Supreme Court.
Pre requisite for appealing in High Court under Art 226 is that there must have
been presence of a right35 and it must have been infringed and the right infringed
must be a personal right36
Purposes of Judicial Review

i.
Objectives
The ostensible purpose of judicial review is to vindicate some alleged right of one
of the parties to litigation and thus to grant relief to the aggrieved party by
declaring an enactment void, if in law it is void, in the judgment of the court. But
the real purpose is something higher, ie, no statute which is repugnant to the
Constitution should be enforced by the Court of law. It is the most effective
process of adapting and adjusting the rights of the individuals and of the State.
ii.
Relieves strain on Legislature
Judicial review relieves the legislature of great responsibility and strain. Judicial
review of legislation, has been combined with the theory to set up an effective
system of checks and balances to restrict majority rulein favor of interest of
minorities.37
By judicial review the Legislature realizes its lapses and becomes alert against
future lapses.
35
Calcutta Gas Co. v. State of WB, AIR 1962 SC 1044

State of Punjab v. Suraj Prakash AIR 1963 SC 507
37
Charles Grove Haines and Foster H Sherwood, The Role of the Supreme Court in American Government and
Politics,1835-1864, p. 287-8
36
Page 33
iii.
Removes Misunderstanding
In India, the Constitution-makers visualized the great purpose of judicial review of

Legislative acts, without which the Indian democracy would not have thrived. The
Court of law have strengthened the hands of the law makers by declaring the
unconstitutional acts be it legislative or any other void.
iv.
Protects Individual Liberty
Judicial review has always saved individual liberty where the Constitution has
guaranteed it. it was realized that for a long time to come only one party would be
in power hardly any opposition and that democracy in India might have been
imperiled if a single party was given the power to rode rough shod over individual
rights and ignore the protests of those who did not belong to the party. Therefore,
even at the risk of slowing down the progress of the country, in interest of the
freedom and democracy, an independent impartial authority was constituted to act
as the arbitrator between the individual and the State and to adjudicate upon the
rights and liberties of the former and the security and interest of the latter.38
v.
Summary of the Purposes
The purposes of Judicial review in substance are:

1) To give relief to the aggrieved party.
2) To uphold the supremacy of the Constitution, so that legislative acts or
administrative acts repugnant to the Constitution are not enforced by the Court
of law.
3) To adjust the Constitution to the new conditions and needs of the time.
38
MC Chagla, The Individual and the State, 1962, p. 15-16
Page 34
4) To infuse into the Legislature and the Administration inspiration, alertness and
caution, to avoid mistakes and to confirm to the Constitution.
5) To set an effective system of checks and balances:
i) Between the executive and the legislature.
ii) Between Union or Central Government and the States
iii) Between the State and State.
iv) Between authority ant the liberty of the citizen.
v) Between the rule of majority ant the rights of the minority and also of the
individuals.
6) To urge the lawmakers in assessing the political wisdom of each statute.
7) To force the lawmakers to follow another line of policy and thus cast a negative
influence on policy formation.
8) To uphold individual freedom and liberty.
9) To maintain the balance of equality as desired by the Constitution.
10)
To protect the people from arbitrary actions of the executes under the
administrative law.
11)
To lead the country to social and economic up-lift.
12)
To protect the people from arbitrary taxations and unconstitutional
acquisitions.
Page 35
Conclusion
After a reasonably detailed study of the above concepts, the amendments and the
cases stated therein, it is only natural come to the conclusion that the Indian
constitution holds the idea of Judicial Review in high esteem though legislations
over the time have shown that the same could not be upheld as there was a lack of
Judicial Activism at the earlier period of time. The Constitution of India has been
established as supreme and the basic structure that has been highlighted in the
Preamble of the same has been seen as utopian in nature thus keeping it out of the
ambit of any sort of legislation, it forms the guiding light for those who propound
the idea of Judicial review along with Part III of the constitution.
Page 36
Bibliography
Judicial Review of Legislative Acts, Dr C. D. Jha, second edition, 2009,
LexisNexis Butterworths Wadhwa
The constitution law of India - Dr. J. N. Pandey

Constitution of India - M. P. Jain
Commentary on the constitution of India- Arvind Datar
Commentary on the constitution of India- D. D. Basu
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Project on the Constitution of India

Project on the Indian Constitution

Project on the Constitution of India

Validity of Constitutional amendments

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Keshavananda Bharti v. State of Kerala AIR 1973 SC 1461

Judicial review and the 9th schedule

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History of Judicial Review

Judicial review and the 9th schedule

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Dr. Bonhams case 8 Co, Rep 113b, at 118a

Judicial review and the 9th schedule

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Edinburgh and Dalkeith Ry v. Wanchope (1842) 8 Cl & F 710

Judicial review and the 9th schedule

Project on the Constitution of India

Project on the Constitution of India

Judicial review in India

Judicial review and the 9th schedule

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It means, in the first place, the absolute supremacy or predominance of regular

Law of constitution, A.V. Dicey, 1885

Judicial review and the 9th schedule

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Separation of Power & the Doctrine of Checks and Balances

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Project on the Constitution of India

Project on the Constitution of India

intends that the powers of legislation shall be exercised exclusively by the

Validity of Constitutional amendments

Judicial review and the 9th schedule

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Shankari Prasad Singh v. Union of India AIR 1951 SC 458

Judicial review and the 9th schedule

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2. The constitution by its scheme has given a place of permanence to

Judicial review and the 9th schedule

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application depends on the discretion of the Supreme Court in

In the decision given by Subba Rao, C.J. in Golaknaths case, para 51

Judicial review and the 9th schedule

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1952 SCR 597

Judicial review and the 9th schedule

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Indira Nehru Gandhi v. Raj Narain22

The first clause states that subject to the provisions of Chapter II of

AIR 1975 SC 2299

Judicial review and the 9th schedule

Project on the Constitution of India

other matters relating to doubts and dispute in relation to such election

Judicial review and the 9th schedule

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The third feature in the Constitution (Thirty-ninth Amendment) Act is that

Judicial review and the 9th schedule

Project on the Constitution of India

Judicial review and the 9th schedule