Judicial Review in India: Concept,

Provisions, Amendments and Other Details

Judicial Review in India: Concept, Provisions, Amendments and Other Details!

The power of judiciary to review and determine the validity of a law or an order may be
described as the powers of Judicial Review’.

It means that the constitution is the supreme law of the land and any law inconsistent
therewith is void through judicial review.

It is the power exerted by the courts of a country to examine the actions of the legislatures,
executive and administrative arms of government and to ensure that such actions conform
to the provisions of the nation’s Constitution. Judicial review has two important functions,
like, of legitimizing government action and the protection of constitution against any undue
encroachment by the government.

Extensive Concept of Judicial Review in India:

The Supreme Court has been vested with the power of judicial review. It means that the
Supreme Court may review its own Judgment order. Judicial review can be defined as the
competence of a court of law to declare the constitutionality or otherwise of a legislative
enactment.

Being the guardian of the Fundamental Rights and arbiter of the constitutional conflicts
between the Union and the States with respect to the division of powers between them, the
Supreme Court enjoys the competence to exercise the power of reviewing legislative
enactments both of Parliament and the State’s legislatures.

The power of the court to declare legislative enactments invalid is expressively provided by
the Constitution under Article 13, which declares that every law in force, or every future law
inconsistent with or in derogation of the Fundamental Rights, shall be void. Other Articles
of the Constitution (131-136) have also expressively vested in the Supreme Court the power
of reviewing legislative enactments of the Union and the States.
The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the
Constitution (1976), in several ways. But some of these changes have been repealed by the
43rd Amendment Act, 1977. But there are several other provisions which were introduced
by the 42nd Amendment Act 1976 not repealed so far.

These are
(i) Arts. 323 A-B. The intent of these two new Articles was to take away the jurisdiction of
the Supreme Court under Art. 32 over orders and decisions of Administrative Tribunals.
These Articles could, however, be implemented only by legislation. Art. 323A has been
implemented by the Administrative Tribunals Act, 1985 (ii) Arts. 368 (4)-(5). These two
Clauses were inserted in Art. 368 with a view to preventing the Supreme Court to invalidate
any Constitutional Amendment Act on the theory of ‘basic features’ of the Constitution.

These Clauses have been emasculated by the Supreme Court itself, striking them down on
the ground that they are violative in the two ‘basic features’ of the Constitution:

(a) the limited nature of the amending power under Art. 368 and

(b) judicial review in the Minerva Mills case.

The court was very reluctant and cautious to exercise its power of Judicial Review, during
the first decade, when the Supreme Court declared invalid only one of total 694 Acts passed
by the Parliament.

During the second decade the court asserted its authority without any hesitation which is
reflected in the famous Golak Nath case and Kesavananda Barti case. In these cases the
Supreme Court assumed the role of constitution making.

Indian Judiciary has been able to overcome the restriction that was put on it by the 42nd
amendment, with the help of the 43rd and 44th amendments. Now the redeeming quality of
Indian judiciary is that no future governments could clip its wings or dilute its right of
Judicial Review. In fact, now the ‘Judicial Review’ is considered to be the basic feature of
our Constitution.

Constitutional Provisions for Judicial Review:

The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution.
Parliament is not supreme under the Constitution of India. Its powers are limited in a
manner that the power is divided between centre and states.

Moreover the Supreme Court enjoys a position which entrusts it with the power of reviewing
the legislative enactments both of Parliament and the State Legislatures. This grants the
court a powerful instrument of judicial review under the constitution.

Both the political theory and text of the Constitution has granted the judiciary the power of
judicial review of legislation. The Constitutional Provisions which guarantee judicial review
of legislation are Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitution legislation.

Article 13 declares that any law which contravenes any of the provisions of the part of
Fundamental Rights shall be void.

Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights
to the Supreme and High Courts.

Article 251 and 254 states that in case of inconsistency between union and state laws, the
state law shall be void.

Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to the
State List.

Article 245 states that the powers of both Parliament and State legislatures are subject to the
provisions of the constitution.

The legitimacy of any legislation can be challenged in the court of law on the grounds that
the legislature is not competent enough to pass a law on that particular subject matter; the
law is repugnant to the provisions of the constitutions; or the law infringes one of the
fundamental rights.

Articles 131-136 entrusts the court with the power to adjudicate disputes between
individuals, between individuals and the state, between the states and the union; but the
court may be required to interpret the provisions of the constitution and the interpretation
given by the Supreme Court becomes the law honoured by all courts of the land.
There is no express provision in our constitution empowering the courts to invalidate laws,
but the constitution has imposed definite limitations upon each of the organs, the
transgression of which would make the law void. The court is entrusted with the task of
deciding whether any of the constitutional limitations has been transgressed or not.

Constitutional Amendments and the Use of Judicial Review:

Until 1967, the Supreme Court upheld that the Amendment Acts were not ordinary laws and
could not be struck down by the application of Article 13 (2).

It was in the famous Golak Nath Vs. the state of Punjab case in 1967, where the validity of
three constitutional amendments (1st, 4th and 17th) was challenged, that the Supreme
Court reversed its earlier decision and uphold the provision under article 368 which put a
check on the Parliament’s propensity to abridge the fundamental Rights under chapter III of
the Constitution.

In the Kesavananda Bharti Vs. State of Kerala case in 1973, the constitutional validity of the
twenty-fourth, twenty fifth and twenty ninth amendments was challenged wherein the court
held that even though the Parliament is entitled to amend any provision of the constitution
it should not tamper with the essential features of the constitution; and that Article 31c is
void since it takes away invaluable fundamental rights.

The court balances the felt ‘necessities of the time’ and ‘constitutional fundamentals’ when
scrutinizing the validity of any law. H.M. Seervai has enumerated some of the canyons,
maxims and norms followed by the court:
1. There is a presumption in favour of constitutionality, and a law will riot be declared tin
constitutional unless the case is so clear as to be free from doubt; and the onus to prove that
it’s unconstitutional lies upon the person who challenges it.

2. Where the validity of a stature is questioned and there are two interpretations, one of
which would make the law valid, and the other void, the former must be preferred and the
validity of the law will be upheld.

3. The court will not decide constitutional questions if a case is capable of being decided on
other grounds.

4. The court will not decide a larger constitutional question than is required by the case
before it.
5. The court will not hear an objection as to the constitutionality of a law by a person whose
rights are not affected by it.

6. Ordinarily, courts should not pronounce on the validity of an Act or part of an Act which
has not been brought into force, because till then the question of validity would be merely
academic.

7. In a later case, the Minerva Mill case, the Supreme Court went a step ahead. The 42nd
Constitutional Amendment of 1976 among other things had added a clause to Article 368
placing a constitutional amendment beyond judicial review. The court held that this was
against the doctrine of judicial review, the basic feature of the Constitution.

Judicial Review under Private Law:

There are remedies against the actions of the executive under private law. A suit can be filed
under section 9 of the Code of Civil Procedure. The suit can be for damages from the
government or other public authority when right is violated and an injury is suffered. It can
also be for a declaration of the illegality of the administrative action.

A suit can be filed for issuing injunction against the act that threatens the rights of persons.
These remedies can, however, be specifically excluded by a statute under which the
administration acts. In such cases the statute will provide alternative remedies.

If it does not, or if the alternative remedies provided are not adequate or sufficient the
aggrieved person will have a right to file a suit. When the alternative remedies are effective
the citizen will have the right only to resort to those remedies and not the remedy under the
Code of Civil Procedure. These rules are laid down through judicial decisions.

Strategy of Judicial Review:

The strategy of judicial review can be divided broadly into public law review and private law
review. Under the Constitution, legislative and administrative actions can be reviewed by
courts under Articles 32, 136, 226 and 227. Such review is called public law review. Article
32 guarantees the right to move the Supreme Court if any fundamental right can be
reviewed under this provision.

Writs:
Article 226 can be, and is more often, used for reviewing the action of administration. One
can say that there is an increase of litigation in this respect. The High Court can issue
directions, orders or writs in the nature of habeas corpus mandamus, prohibition, quo-
warranto, and certiorari for the enforcement of fundamental rights or for any other purpose.

Habeas corpus is a write issued by the court to bring before the court a person from illegal
custody. The court will examine the legality of detention and release the person if detention
is found illegal.

Mandamus is issued to a public authority to do an act which under law, it is obliged to do or

to forbear from doing.

Prohibition is a write to prevent a court or tribune! from doing something in excess of its
authority. High Court has power to issue an order of prohibition to the executive authority
prohibiting it from acting without jurisdiction.

Certiorari is a write issued to a judicial or quasi-judicial authority to correct its order. This
writ is issued on specified grounds like violation of natural justice; excess, abuse or lack of
jurisdiction; fraud; and error of law apparent on the face of the record.

Quo-warranto is a writ issued to a person who authorisedly occupies a public office to step
down from that office. High courts and the Supreme Court have the power to issue not only
these writs but also appropriate directions and orders.

Judicial Review and Contempt of Court:

It is mandatory that an administrative officer or authority should obey the directions of a
court and execute the decisions of the court. What action can be court take if they do not do
this? The court has neither the sword not the purse like the executive. It has a potential
power.

It has the power to take action of contempt of court. Those who violate or disobey the
decisions of the courts are proceeded against under this power. They can be punished and
sent to jail. Obviously the contempt power is the only weapon in the hand of judiciary to see
that their decisions are executed.

Locus standi is the first limitation on judicial review. This means that only a person
aggrieved by an administrative action or by an unjust provision of law shall have the right to
move the court for redressal. Under this traditional rule a third party who is not affected by
the action cannot move the court.
Another limitation is that before a person moves the High Courts and the Supreme Court
invoking their extraordinary jurisdiction, he should have exhausted all alternative remedies.
For example, these may be a hierarchy of authorities provided in legislation to look-into the
grievances of the affected party. The aggrieved person should first approach these
authorities for a remedy before invoking extraordinary jurisdiction of the courts.

However, the alternative remedies should be equally efficacious and effective as the
remedies available from the courts are. If they are not, the jurisdiction can be invoked. In
cases of manifest injustice and the violation of procedural fairness, alternative remedy is not
a bar.

A rule has been evolved to avoid repeated adjudication on the same matter between the
same parties. If the case is finally disposed of on merits the same issue cannot be re-agitated
by any of the parties filing another case. This limitation is called res judicata.

Changing Trends in Judicial Review:

Recently there is a rising trends in judicial activism in the land. The doors of the judiciary
are kept open for redressing the grievances of persons who cannot ordinarily have access to
justice. The strict observance of the traditional rule of locus standi will do injustice to
certain persons who do not have the money, knowledge and facilities of approaching court.

In such cases if a public spirited person comes forward on their behalf courts relax the rules
an adjudicate over the matter. Thus, in the matter of socially and economically backward
groups or persons who are not aware of their rights or not capable of pursuing their case in a
court, the complex and rigorous procedural formalities are not insisted upon. At this level
there are cases when press reports were taken as write petitions and reliefs granted. Letters
addressed to the courts were also ‘treated as petitions.

Judicial review is one of the important techniques by which the courts examine the actions
of the legislature, the executive and the other governmental agencies and decide whether or
not these actions are valid and within the limits set by the Constitution.

Therefore, with the power of judicial review the courts act as a custodian of the fundamental
rights. The Indian Judiciary, given the federal structure of the Constitution, also settles
conflicts of jurisdiction in legislation between the centre and the states. With the growing
functions of the modern state judicial intervention in the process of making administrative
decisions and executive them has also increased.