An assignment

on
Judicial review

Submitted by
Name- salman ali siddiqui
Roll no.- 24ll.m2020
Enr. No. -fb-8086

Submitted to
Dr. Badar Ahmad sir
 CONTENTS
 Introduction
 Origin
 Meaning and Basis of Judicial Review
 Objective of Judicial Review
 Effect of Judicial Review
 Importance of Judicial Review
 Doctrine of Severability
 Doctrine of Eclipse & Post-Constitutional Laws
 Judicial Review of Parliamentary, Legislative & Administrative Action
 Judicial Review of Constitutional Amendment
 Current Position of Judicial Review in India
 Conclusion
 INTRODUCTION
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 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
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.” with the requirement that ordinary law must
confirm to the Constitutional law. “Judicial Review is a mechanism and therefore the Concept of
Judicial Activism is a part of this mechanism. So far as the, Indian constitution has created an
independent judiciary which is vested with the power of judicial review to determine the legality
of any validity of law and any executive action. Supreme Court of India formulated various
doctrines on the basis of Judicial Review like “Doctrine of Severability, Doctrine of Eclipse,
etc. In India Judicial Review based on three important dimensions ,these are” Judicial Review of
Constitutional Amendments”, Legislative Actions, “Judicial Review of Administrative
Actions”.

It is the duty of the judiciary the constitution to keep different organs of the state within the
limited power conferred upon them by the constitution. The legitimacy of judicial review is
based in the Rule of Law, and the need for public bodies to act according to law. Judicial review
is a means to hold those who exercise public power accountable for the manner of its exercise,
especially when decisions lie outside the effective control of the political process. Judicial
Review is a great weapon through which arbitrary, unjust harassing and unconstitutional laws are
checked.
ORIGIN

“The power corrupts a man and absolute power corrupts absolutely which ultimately lead to
tyranny, anarchy and chaos has been sufficiently established in course of evolution of human
history, and all round attempts have been made to erect institutional limitations on it’s exercise” 1.

“Supremacy of the law is the spirit of the Indian Constitution. In India, the “DOCTRINE OF
JUDICIAL REVIEW” is the basic feature of the Constitution. It is the concept of Rule of Law
and it is the touchstone of Constitution of India. Though there is no express provision for judicial
review in Indian Constitution but it is an integral part of our constitutional system, and without it
there will be no Government of laws and Rule of law would become a mockery, delusion and a
promise of futility. In India, Judicial Review is a power of court to set up an effective system of
check and balance between legislature and executive2.

The doctrine of judicial review was for the first time propounded by The Supreme Court of
America in the case of Marbury vs. Madison,. Marshall C.J, observed, “Certainly, all those
who framed written Constitution contemplate them as forming the fundamental and paramount
law of the nation and, consequently, the theory of every such Government must be that an Act of
the legislature repugnant to the Constitution is void3”

In India the concept of Judicial Review is founded on the Rule of Law which is the swollen with
pride heritage of the ancient Indian culture an society. In India, since Government of India
Act,1858 and Indian Council Act, 1861 imposed some restrictions on the powers of Governor
General in Council in evading laws, but there was no provision of judicial review. The court had
only power to implicate. The Emperor vs. Burah4 was the first case which interpreted and
originated the concept of judicial review in India. In this case court held that aggrieved party had

1
Dr. J.N Pandey, Constitutional Law of India, 68,Central Law agency, Allahabad ([Link]., 2015)
2
Prashant gupta, Doctrine of judicial review : A Comparative analysis between India, u.k. and u.s.a, 52,
International journal of Legal Development and Allied issues.
3
Pandey, Supra note 1 at 69
4
[ 1877] 3. ILR 63 ( Cal)
right to challenge the constitutionality of a legislative Act enacted by the Governor General
council in excess of the power given to him by the Imperial Parliament. In this case the High
court and Privy Council adopted the view that Indian courts had power of judicial review with
some limitations. In Annie Besant v. Government of Madras , Madras high court observed on
the basis of Privy council decision that there was a fundamental difference between the
legislative powers of the Imperial Parliament and the authority of the subordinate Indian
Legislature, and any enactment of the Indian Legislature in excess of the delegated powers or in
violation of the limitation imposed by the imperial Parliament will null and void. “Though there
is no specific provision of the Judicial Review in Government of India Act, 1935 and the
constitutional problems arising before the court necessitated the adoption of Judicial Review in a
wider perspective. Now, Constitution of India, 1950 explicitly establishes the Doctrine of
Judicial Review under various Articles 13,32,131-136,143,226,227,245,246.,3725.

MEANING AND BASIS OF JUDICIAL REVIEW

Judicial review is the power of courts to pronounce upon the constitutionality of Legislative acts
which fall within their normal jurisdiction to enforce and power to refuse to enforce such as they
find to be unconstitutional and hence void. Judicial review sad Khanna, J. In the Kesavananda
Bharati vs. State of Kerala6 has thus become an integral part of our constitutional system and a
power has been invested in the High Court and the supreme court to decide about the
constitutional validity of the provisions of statutes. If the provisions of the statutes are found to
be violative of any of the articles of the constitution which is the Touchstone for the validity of
all laws the supreme court and high courts are empowered to strike down the said provisions.

In A. K Gopalan vs. State of Madras, kania, C. J, observed: “In India, it is the Constitution
that is supreme and that a statute law to be valid, must be in all conformity with the
constitutional requirements and it is the for the judiciary to decide whether any enactment is
Constitutional or not”.

In Kesavananda Bharti' case it has been held that Judicial Review is the basic feature of the
Indian Constitution and, therefore, it cannot be damaged or destroyed by amending the
5
Prashant gupta, Supra note 2 at 51-52
6
Fundamental rights case AIR 1973 SC 1461
Constitution under Art. 368 of the Constitution.. In L. Chandra Kumar vs. Union of India, The
Supreme Court has held at the power of Judicial review of Legislative action as vested in the
high court under article 226 and in the supreme court under article 32 is part of the basic
structure of the Constitution cannot be altered or excluded even by the constitutional
amendment7.

Art. 13 Laws inconsistent with or in derogation of the fundamental rights8-

(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention, be
void.

(3) In this article, unless the context otherwise requires,

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or other competent authority
in the territory of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be then in operation
either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under article
368.

OBJECTIVE OF JUDICIAL REVIEW

The main objective of article 13 is to secure the paramountcy of the Constitution especially with
regard to fundamental rights. Article 13 in fact provides for the Judicial review all legislation in
India, past as well as future. This power has been conferred on the high courts and supreme
7
Pandey, Supra note 1 at 68-70
8
P.M. Bakshi, The Constitution of India Art. 13(Part III)
court of India(Art.226, 32) which can declare a law unconstitutional if it is inconsistent with
any provision of part III of the constitution9.

EFFECT OF ARTICLE 13

Article 13 (1) is prospective in nature. All laws inconsistent with fundamental rights will become
void only after the commencement of the Constitution. Those laws have not been declared void
ab initio. A declaration of invalidity by the court shall, however, be necessary to make the laws
invalid. In Keshava Madhav Menon vs. State of Bombay, The Supreme Court observed: There
is no fundamental right that a person shall not be prosecuted and punished for an offence
committed before the Constitution came into force. So far as the past acts are concerned the law
exists notwithstanding that does not exist with respect to the future exercise of the fundamental
rights10.

IMPORTANCE OF JUDICIAL REVIEW

 Judicial review is necessary to uphold the principle of supremacy of the constitution.

 The provision of judicial review prevents the misuse of power by the legislature and
executive.
 It maintains the equilibrium between the centre and state, thereby maintaining federal
equilibrium.
 The provision protects the fundamental rights of the citizens.
 This provision ensures the principle of the independence of the judiciary11.

DOCTRINE OF SEVERABILITY

Art. 13(1) provides:

9
Pandey, Supra note 1 at 68
10
Pandey, Supra note 1 at 70
11
Https://[Link], New Delhi, [Link] /what-is-judicial-review-importance-scope-and-
types-(Last Updated-01/12/21; Last Visitef-2021-12-01)
All laws in force in the territory of India immediately before the commencement of this
constitution, insofar as they are inconsistent with the provisions of this part, shall, to the extent of
such inconsistency be void12.

Art. 13(2) says:

The state shall not make any law which takes away or abridges the rights conferred by this part
and any law made in contravention of this Clause, to the extent of the contravention, be Void.

Clause(1) &(2) of Art. 13 thus declare that laws inconsistent with or in contravention of the
fundamental rights, shall be void to the extent of inconsistency or contraventions, as the case
may be. This doctrine means that if an offending provision can be separated from that which is
constitutional then only that part which is off ending is to be declared as void and not the entire
statute13.

State of Bombay vs. Balsara14 it was observed by the Supreme Court that the provisions which
have been declared as void do not affect the entire statute, therefore, there is no necessity for
declaring the statute as invalid.

The primary test is whether what remains is so inextricably mixed with the part declared invalid
that what remains cannot survive independently. In R.M.D.C Vs. union of India15, The Supreme
Court held that where after removing the invalid provision what remains constitutes a complete
code there is no necessity to declare the whole act invalid. In such cases, whether the valid part
of a statute are separable from the Invalid ,the intention of the legislature is the determining
factor. The test to be applied is whether the legislature would have enacted the valid part if it
had known that the rest of the statute was invalid.

DOCTRINE OF ECLIPSE & POST-CONSTITUTIONAL LAWS

The doctrine of eclipse is based on the principle that a law which word infringes fundamental
rights is not nullity or void ab initio but becomes only unenforceable, i.e., Remains in a more

12
Prof. Narendra Kumar, Constitutional Law of India, 92, Allahabad Law Agency, Faridabad(Haryana) 8thed., 2011
13
Kumar, Supra note 12 at 98
14
AIR 1951 SC 318
15
AIR 1957 SC 628
moribund condition. It is overshadowed by the fundamental rights and remain dormant; but it is
not dead. They exist for all past transactions and for the enforcement of rights acquired liabilities
incurred before the present constitution came into force and for the termination of right of
persons who have not been given fundamental rights by the constitution, e.g., non-citizens16.

It was evolved by the Supreme Court in the case of Bhikaji vs. state of M.P17. In which case the
Supreme Court itself held that the effect of amendment was to remove the shadow and to make
the impugned Act free from all blemish or infirmity.

Clause(2) of Art. 13 prohibits state to make any law which takes away or abridges rights
conferred by part III of the constitution. If state makes such a law then it will be ultra virus and
void to the extent of the contravention. It is stillborn law and cannot be revived by removal of the
constitutional prohibition by subsequent amendment of the constitution. Do post constitution
laws inconsistent with fundamental rights are void ab initio Yet a declaration by the courts of
their invalidity will be necessary18.

In Deep Chand vs. state of U.P19., the Supreme Court held that the doctrine of eclipse does not
apply to post constitutional laws and therefore a subsequent constitutional amendment and not
revive it.

In a State of Gujarat vs. Ambika mills20 The Supreme Court held that opposed constitution law
which is inconsistent with fundamental rights is not nullity or non existent in all cases and for all
purpose there are many exceptions to it. A post constitution law which takes away or abridges
the right conferred by article 19 will be operative as regards to non citizens because fundamental
rights are not available non-citizens.

In Dulare lodh vs. III A. D. J, Kanpur 21, The Supreme Court applied the doctrine of uplift to
post constitutional law even against citizen. But by virtue of amendment act of 1976, section 9 of
the U.. civil laws amendment act of 1972 was made applicable with retrospective effect Which
was enacted to remove the injustice and to remedy mischief caused to the degree holder.

16
Pandey, Supra note 1 at 72
17
AIR 1955 SC 781
18
Pandey, Supra note 1 at 73
19
AIR 1959 SC 648
20
AIR 1974 SC 1300
21
AIR 1984 SC 1260
DOCTRINE OF WAIVER

The doctrine of waiver explains that a person, entitled to a right or privilege, is free to waive that
right or privilege is relinquishment or abandonment of unknown existing legal right or
privilege22. The question arises as to whether the doctrine of waiver is applicable to the
fundamental rights also was arose before the Supreme Court in Basheshar Nath vs.
Commissioner of Income Tax23, The Supreme Court held that fundamental rights could not be
waived voluntary.

DEFINTION OF THE TERM ‘LAW' AND LAWS IN FORCE'

Art. 13(3) (a) Provides that the term “law” “includes any ordinance former order, by law, rule
coma regulation, notification, custom or usage having in the territory of India the force of law”.

The Object is to ensure that fundamental rights should not be infringed or violated, not only by
the state, its legislative or executive organs, but also by it’s instrumentalities or agencies 24. Thus,
the term law not only refers to enacted law or legislation, but includes even the administrative
order issued by an executive officer 25, ordinance issued by the President or Governor, delegated
legislation26, statutory law framed under article 30927,a government notification issued under the
statute28, the bye-laws made by statutory body29.

Article 13(3) (b)Provides that expression laws in force used in clause (1) thereof includes laws
passed or made by a legislature or other competent authority in the territory of India before the
commencement of this constitution and not previously repealed, notwithstanding that any such
law or any part thereof may not be then in operation either at all or in particular areas.

22
Kumar, Supra note 12 at 102
23
AIR 1959 SC 149
24
Kumar, Supra note 12 at 104
25
M.R Balaji vs. State of Mysore, AIR 1963 SC 649
26
Art. 13(3) (a)
27
State of Punjab vs. Joginder Singh AIR 1963 SC 913
28
Institute of C.F.A.I vs. Council of I.C.A AIR 2007 SC 2001
29
Mohd. Yasin vs. Town Area Committee, AIR 1952 SC 115
It includes the laws passed by the British parliament and applicable to India, like the fugitive
offenders act , 188130.

JUDICIAL REVIEW OF PARLIAMENTARY, LEGISLATIVE & ADMINISTRATIVE

ACTION

I. Judicial review of Parliamentary & Legislative action

Art. 245 and 246 of the Indian constitution gives legislatives powers to Parliament and State
Legislatures .Art. 245 (1) provides “subject to the provisions of the constitution , the parliament
may make any laws for the whole and any part of the territory of India and a State Legislature
may make a law for whole of the state and any part thereof”. The word “subject to the provisions
of the constitution” are imposed limitations to the Parliament and State Legislature to make
legislation . These words are the essence of Judicial Review of legislative actions in India . It
ensure that legislation should be within the limitations of constitutional provision. These words
provides power to the Courts to scrutinize the validity of legislation. The Supreme Court have
supreme power under Art. 141 which incorporates “Doctrine of Precedent” to implement its own
view regarding any conflicted issue and it’s also have binding force. Supreme Court gives us
some relevant observations through judicial decisions regarding the legislative actions of
Parliament and State Legislatures31.

In SP Sampat kumar vs. Union of India 32 the constitutional validity of Administrative Tribunal
Act,1985 , was challenged on the ground that that the impugned Act by excluding the
jurisdiction of the High Courts under Art. 226 and 227 in service matters had destroyed the
judicial review which was an essential feature of the constitution The Supreme Court held that” a
law passed under Art. 323-A providing for the exclusion of the jurisdiction of the High Courts
must provide an effective alternative institutional mechanism of authority of judicial review. The
judicial review which is an essential features of the constitution can be taken away from the
particular area only if an alternative effective institutional mechanism or authority is provided.”

30
Kumar, Supra note 12 at 105
31
Gupta, Supra note 2 at 57-58
32
AI[1987]1 SCC 124(SC)
Again in L Chandra vs. Union of India 33, clause 2(d) of Art. 323-A and clause 3(d) of Art.323-
B was challenged on the ground that these clauses excludes the jurisdiction of High Courts in
service matters. The Constitutional Bench unanimously held that “these provisions are to the
extent they exclude the jurisdiction of the High Courts and Supreme Courts under Art.226/227
and 32 of the constitution are unconstitutional as they damage the power of judicial review. The
power of judicial review over Legislative Actions vested in the High Courts and Supreme Court
under Art. 226/227 and Art.32 is an integral part and it also formed part of its basic structure.”

Then, in the recent scenario ,I.R. Coelho vs. State of Tamil Nadu34, the petitioner had
challenged the various Central and State laws put in the Ninth Schedule including the Tamil
Nadu Reservation Act. The Nine Judges Bench held that “any law placed in the Ninth Schedule
after April 24, 1973 when Keshvananda Bharati’s case judgment was delivered will open to
challenge, the court said that the validity of any Ninth Schedule law has been upheld by the
Supreme Court and it would not be open to challenge it again , but if a law is held to be violation
of fundamental rights incorporated in Ninth Schedule after the judgment date of Keshvananda
Bharati‘s case, such a violation shall be open to challenge on the ground that it destroy or
damages the basic structure of constitution”.

II. Judicial Review of Administrative action

The system of judicial review of administrative action in India came from Britain. Judicial
Review of Administrative action is perhaps the most important development in the field of public
law. The Doctrine of Judicial Review is embodied in the Constitution and the subject can
approach High Court and Supreme Court for the enforcement of fundamental right guaranteed
under the Constitution. If the executive or the Government abuses the power vested in it or if the
action mala fide, the same can be quashed by the ordinary courts of law. All the rule, regulations,
ordinances, bye-laws, notifications, customs and usages are “laws” within the meaning of Art.13
of the Constitution and if they are inconsistent with or contrary to any of the provisions thereof,
they can be declared ultra vires by the Supreme Court and by the High Courts.. Judicial review
of administrative action aims to protect citizens from abuse of power by any branch of State.
”When the legislature confers discretion on a court of law or on an administrative authority, it
also imposes responsibility that such discretion is exercised honestly, properly and reasonably
33
)AIR 2007 SC 861
34
AIR 2007 SC 861
“This view of ”DE Smith” clearly point out that discretion of administrative action should be
used with care and caution. So, the abusive discretionary power of Administrative action must be
review by judiciary. If judiciary founds any ground of illegality of any administrative action, it is
the duty of the judiciary to maintain check and balance.35

CURRENT POSITION OF JUDICIAL REVIEW IN INDIA:

The Supreme Court of India since the era AK Gopalan’s case to the historic judgment in I.R.
Coelho’s case magnified the concept of Doctrine of Judicial Review. In the present scenario,
Supreme Court plays a very crucial role to interpret the constitutional provisions and now the
Concept of Judicial Review became a fundamental feature of the Constitutional Jurisprudence. In
its recent judgment in Madras Bar Association vs. Union of India36 the Supreme Court
Scrutinized the provisions of Companies Act, 1956 and declared some provisions ultra vires. In
this case, the petitioner challenges the constitution of NCLT and NCALT and also Challenges
the formation of the Committee, the appointment of the judicial members as well as the technical
members. Sec 409(3)(a), 409(3)(c), and Sec. 411(3), 412(2) are the provision Which incorporates
Constitution of Board of company law administration. The Supreme court Upheld the validity of
NCLT and NACLT, but declared the above mentioned provisions ultra Vires and held that these
provisions are unconstitutional in nature on the ground that any Institution performing a judicial
function should be constituted of members having judicial Experience and expertise and thus
judicial member were to exceed the technical members so as to maintain the essential feature of
that constitution

35
Gupta, supra note 2 at 59
36
AIR 2015 SCC 484
 CONCLUSION

To conclude this Doctrine of judicial review is now become very dynamic concept in present
scenario. Judiciary performing as the guardian of Constitution by using the power of judicial
review. In India, courts are very strictly scrutinized the validity of law or any administrative
actions if they inconsistent and illegal in nature. The scope of judicial review in Administrative
action are wider in the present scenario. The Courts have no power to take cognizance suo moto
and to declare the law void, courts can initiate only when matter comes before the courts. Courts
cannot questioned to any political matter, but it cannot mean that the court would avoid giving its
decision under a shelter of political question, its is not the duty of the court. Judicial review
checks the legislative power from delegating its essential functions and also sometimes
discourages the legislature from enacting void and unconstitutional legislation. In India, there are
various constitutional limitations implicitly and also explicitly, which incorporates limitations to
the law making power of Legislature , such as legislature cannot go beyond its power to make
law, it cannot make law against the Principles of Natural Justice. Legislation cannot violate the
fundamental rights which is the basic structure of the Constitution. Judiciary doesn’t has power
to make laws , therefore there is also existence of Judicial Restraint. Court has also some
limitations. Court cannot anticipate a question of constitutionality in advance, court cannot
declare void in a doubtful case. Court does not declare a law void merely on the grounds of
sentiments and personal view. Judicial review are now a great weapon in the hands of the court
to interpret and enforce the valid law. Independence of judiciary are also the main concern of
judicial review because , it would be great injustice to giving decision to the invalid laws and
actions, if judiciary not independent. Through judicial review , judiciary also exercises effective
control on delegated legislation, where a law made by the executive is found to be inconsistent
with the constitution or ultra vires the parent Act from which the law making power has been
derived , it will declared null and void by the court. Justice P.N. Bhagwati in his minority
judgment in Minerva Mills case observed “ 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 legislative or
the executive or any other authority be conditioned by the Constitution and the law”. It enables
the court to maintaining harmony in the State. By declaring invalid laws, court protects
individual as well as collective rights also. The basic feature is to protect the individual rights,
therefore there is a need of expansion of judicial review. To strengthen judicial review will
become strengthen the liberty and freedom of individual. Thus, Judicial Review is an integral
and most important part for the healthy democracy.
 BIBLIOGRAPHY

1. Pandey, Dr. J. N; Constitutional Law of India, 68,Central Law agency, Allahabad (52 [Link].,
2015).
2. The constitution of India, universal law publication LexisNexis, 14th edition, 2017.
3. Kumar, Prof. Narendra; Constitutional Law of India, 92, Allahabad Law Agency,
Faridabad(Haryana) 8thed., 2011.
4. Gupta, Prashant; Doctrine of judicial review : A Comparative analysis between India, u.k.
and u.s.a, 52, International journal of Legal Development and Allied issues.
5. Https://[Link], New Delhi, [Link] /what-is-judicial-review-
importance-scope-and-types-(Last Updated-01/12/21; Last Visitef-2021-12-01)