Judicial Review

·  Origin – USA

·  The Constitution confers the Power of Judicial Review on the Judiciary (Both on Supreme Court of India and High Courts).

·  The Supreme Court of India has declared the Judicial Review as Basic Feature of the Constitution.

 

What is Judicial Review?

·  It is a power of the Judiciary conferred by the Constitution, to examine the constitutional validity of any legislative enactments and executive orders of both central and state governments.

·  On investigating, if they are found violating the Constitution i.e. Ultra Vires, they can be declared illegal, unconstitutional and invalid i.e. null and void by the Judiciary. Hence, they cannot be enforced by the Government.

·  Therefore, judicial review can be defined as the doctrine under which legislative and executive actions are subject to review by judiciary.

·  It is generally considered as a basic structure of independent judiciary (Indira Gandhi vs. Rajnarain case).

Classification

·  Justice Syed Shah Mohamed Quadri has classified the judicial review into the following three categories –

1.    Judicial review of constitutional amendments.

2.    Judicial review of legislation of the Parliament and State Legislatures and subordinate legislations.

3.    Judicial review of administrative action of the Union and State and authorities under the state.

Importance

·  The Importance of Judicial review can be found in following –

1.      To uphold the principle of the supremacy of the Constitution.

2.      To maintain federal equilibrium (balance bw the Centre and the states).

3.      To protect the Fundamental Rights of the citizens.

“The founding fathers very wisely incorporated in the Constitution itself the provisions of judicial review so as to maintain the balance of federalism, to protect the Fundamental Rights and Fundamental Freedoms guaranteed to the citizens and to afford a useful weapon for availability and enjoyment of equality, liberty and Fundamental Freedoms and to help to create a healthy nationalism. The function of judicial review is a part of the constitutional interpretation itself. It adjusts the Constitution to meet new conditions and needs of the time”.

–          Justice Ramaswami (1997)

Constitutional Provisions for Judicial Review

· Although, the term ‘Judicial Review’ is not used as such in Constitution but various Articles of the Constitution confers the power of Judicial Review on the Supreme Court of India and High Courts.

·  These provisions are –

1. Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void.

2.   Article 32 guarantees the right to move the Supreme Court for the enforcement of the Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs for that purpose.

3.   Article 131 provides for the original jurisdiction of the Supreme Court in centre–state and inter-state disputes.

4.   Article 132 – 134 provides for the appellate jurisdiction of the Supreme Court in various cases such as Constitutional cases, Civil Cases and Criminal Cases.

5. Article 135 empowers the Supreme Court to exercise the jurisdiction and powers of the Federal Court under any pre-constitution law.

6.   Article 136 authorises the Supreme Court of India to grant special leave to appeal from any court or tribunal (except military tribunal and court martial).

7.  Article 143 authorises the President to seek the opinion of the Supreme Court of India on any question of law or fact and on any pre-constitution legal matters.

8.  Article 226 empowers the High Courts to issue directions or orders or writs for the enforcement of the Fundamental Rights and for any other purpose.

9.  Article 227 vests in the High Courts the power of superintendence over all courts and tribunals within their respective territorial jurisdictions (except military courts or tribunals).

10. Article 245 deals with the territorial extent of laws made by Parliament and by the Legislatures of States.

11.  Articles 251 and 254 provide that in case of a conflict between the central law and state law, the central law prevails over the state law and the state law shall be void.

12.  Article 372 deals with the continuance in force of the pre-constitution laws.

Scope of Judicial Review

·  Any constitutional validity of any act or law or executive order can be challenged in Supreme Court of India or the High Courts on following grounds –

1.    it interfere with the Fundamental Rights (Part III)

2.    it is outside the capability of the authority which has framed it

3.    it is objectionable to the constitutional provisions

·  The Scope of Judicial Review in India is narrower than that of the American Constitution because the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ which is contained in the Indian Constitution.

 

Procedure Established By Law – in this, while the law is examined, it is done on the substantive grounds only i.e. weather the law is within the powers of the authority concerned. It does not go into the question of its reasonability, suitability and policy implementation.

Due Process of Law – It gives wide scope to the Supreme Court to grant protection of rights of the Citizens and can declare a law violative of these rights void on the substantive grounds as well as procedural grounds.

Judicial Review of the Ninth Schedule

· Article 31B along with the Ninth Schedule was added by the 1st Constitutional Amendment Act, 1951.

· Article 31B saves the acts and regulations included in the 9th Schedule from being challenged and nullified on the ground of violation of any of the Fundamental Rights.

· Originally, there were only 13 acts and regulations in 9th Schedule but at present the number has risen up to 282.

I.R. Coelho Case (2007)

·  The court held that judicial review is a ‘basic feature’ of the constitution and it could not be taken away by putting a law under the Ninth Schedule.

·  It said that the laws placed under the 9th Schedule after April 24, 1973, are open to challenge in court if they violated Fundamental Rights guaranteed under the Articles 14, 15, 19 and 21 or the ‘basic structure of the Constitution’.

 

So, this is all about the Judicial Review and its Importance, Constitutional provisions, and Scope.

In the Next Post (Click Here), we are going discuss about Judicial Activism. If you like our Notes do Subscribe our Facebook Page, so that you can get regular updates.