Judicial Review

The doctrine of judicial review origi 3. Judicial review of administrative action

nated and developed in the USA. It of the Union and State and authorities
was propounded for the first time in under the state.
he famous case of Marbury versus Madison The Supreme Court used the power of
L803) by John Marshall, the then chief jus judicial review in various cases, as for
ticeof the American Supreme Court. example, the Golaknath case (1967), the
In India, on the other hand, the Bank Nationalisation case (1970), the Privy
Constitution itself confers the power of Purses Abolition case (1971), the Kesavananda
judicial review on the judiciary (both the Bharati case (1973), the Minerva Mills case
Supreme Court as well as High Courts). (1980), and so on.
Further, the Supreme Court has declared the In 2015, the Supreme Court declared both
power of judicial review as a basic feature the 99th Constitutional Amendment, 2014
of the Constitution or an element of the and the National Judicial Appointments
basic structure of the Constitution. Hence, Commission (NJAC) Act, 2014 as unconstitu
the power of judicial review cannot be cur tional and null and void.
tailed or excluded even by a constitutional
amendment.
IMPORTANCE OF JUDICIAL
REVIEW
MEANING OF JUDICIAL REVIEW
Judicial review is the power of the judiciary Judicial review is needed for the following
reasons:
to examine the constitutionality of legislative
enactments and executive orders of both the (a) To uphold the principle of the suprem
acy of the Constitution.
Central and State governments. On examina
1on, if they are found to be violative of the (b) To maintain federal equilibrium
Constitution (ultravres), they can be declared (balance between the Centre and the
as illegal, unconstitutional and invalid(null states).
dnd void) by the [Link], they (c) Toprotect the Fundamental Rights of the
citizens.
Cannot be enforced by the Government.
In anumber of cases, the Supreme Court
Justice Syed Shah Mohamed Quadri has has pointedout the significance of the power
lassified the judicial
Ing three categories':
review into the follow-
of judicial review in our country. Some of the
1. Judicial review of constitutional observations made by it, in this regard, are
given below:
amendments.
Judicial review of Jegislation of the
"In India it is the Constitution that is
and supreme and that a statute law to be valid.
Parliament and State Legislatures must be in conformity with the constitutional
subordinate legislations.
 Indian Polity
27.2
not, in the discharge of their

decide whether any

enactment
judiciary to
requirements and it is for the is constitu gress constitutional limitationg"?
The founding fathers very
functions, trans-
tional or not" fore, incorporated in the
wisely, there.
"Our constitution contains
express provi
of legislation as to
sions for judicial review constitution.
itself the provisions of
as to maintain the balance
of
Constreview
judicial itution
So
its conformity with the
true as regards the
This is
Fundamental to protect the Fundamental federalism,
Rights and
especially assigned Fundamental Freedoms guaranteed to the
Rights, to which the court has been citizens and to afford a useful weapon for
the role of sentinel on the qui vive""
Rights exist availability, availment and enjoyment of
"As long as some Fundamental
power equality, liberty and Fundamental Freedoms
and are a part of the Constitution, the and to help to create a healthy nationalism
exercised with
of judicial review has also to be
The function of judicial review is a part of
a view to see that the guarantees afforded by
these Rights are not contravened"* the constitutional interpretation itself, t
"The Constitution is supremne lex, the adjusts the Constitution to meet new condi.
tions and needs of the time" 8
permanent law of the land, and there is
no branch of government above it. Every
organ of government, be it the executive or
the legislature of the judiciary, derives its CONSTITUTIONAL PROVISIONS
authority from the Constitution and it has FOR JUDICIAL REVIEW
to act within the limits of its authority. No
one however highly placed and no authority Though the phrase 'Judicial Review' has
howsoever lofty, can claim that it shall be the nowhere been used in the Constitution, the
sole judge of the extent of its power under the provisions of several Articles explicitly confer
Constitution or whether its action is within the power of judicial review on the Supreme
the confines of such power laid down by the Court and the High Courts. These provisions
constitution. This Court is the ultimate inter are explained below:
preter of the Constitution and to this Court 1. Article 13 declares that all laws that are
is assigned the delicate task of determining
inconsistent with or in derogation of the
what is the power conferred on each branch Fundamental Rights shall be null and
of government, whether it is limited, and if void.
so, what are the limits and whether any action
2. Article 32 guarantees the right to move
of that branch transgresses such limits" 5 the Supreme Court for the enforcement
"It is the function of the Judges, may their
of the Fundamental Rights and empow
duty, to pronounce upon the validity of laws.
If courts are totally deprived of that power, the ers the Supreme Court to issue directions
Fundamental Rights conferred on the people or orders or writs for that purpose.
will become a mere adornment because 3. Article 131 provides for the original
rights without remedies are as writ in water. jurisdiction of the Supreme Court in
A controlled Centre-state and inter-state disputes.
Constitution will then become
uncontrolled" 6 4. Article 132 provides for the appellate
"The judges of the Supreme jurisdiction of the Supreme Court m
been entrusted with the Court have
the Constitution and to task of upholding Constitutional cases.
this end, have been 5. Article 133 provides for the appellate
conferred the pOwer to interpret it. It is they jurisdiction of the Supreme Court in
who have to ensure that the civil cases.
envisaged by the balance of power 6. Article 134 provides for the appellate
and that the Constitution is
maintained
legislature and the executive jurisdiction of the Supreme Court in
do
criminal cases.
 Judicial Review 27.3

- Article 134-A deals with the certificate (b) it is outside the

for appeal to the Supreme Court from competence of the
authority which has framed it, and
the High Courts. 9 (C) it is repugnant to the constitutional
8 Article 135 empowers the Supreme Court provisions.
to exercise the jurisdiction and powers From the above, it is clear that the scope
of the Federal Court under any pre of judicial review in India is narrower than
constitution law.
what exists in the USA, though the American
9. Article 136 authorises the Supreme Court Constitution does not explicitly mention
to grant special leave to appeal from the concept of judicial review in any of its
any court or tribunal (except military provisions. This is because, the American
tribunal and court martial). Constitution provides for 'due process of
10. Article 143 authorises the President to law' against that of 'procedure established
seek the opinion of the Supreme Court by law' which is contained in the Indian
on any question of law or fact and on Constitution. The difference between the
any pre-Constitution legal matters. two is: "The due process of law gives wide
|1. Article 226 empowers the High Courts to
issue directions or orders or writs for the Scope to the Supreme Court to grant pro
tection to the rights of its citizens. It can
enforcement of the Fundamental Rights declare laws violative of these rights void
and for any other purpose.
12. Article 227 vests in the High Courts the not only on substantive grounds of being
power of superintendence over all courts unlawful, but also on procedural grounds
and tribunals within their of being unreasonable. Our Supreme Court,
respective
territorial jurisdictions (except military
while determining the constitutionality of a
law, however examines only the
courts or tribunals). substantive
13. Article 245 deals with the question i.e., whether the law is within the
territorial powers of the authority concerned or not.
extent of laws made by Parliament and It is not expected to go into the
by the Legislatures of States. of its question
14. Article 246 deals with the
subject matter reasonableness,
implications" l0 suitability or policy
of laws made by Parliament and by the The exercise of wide power of
Legislatures of States (i.e., Union List,
State List and Concurrent List). review by the American Supreme Courtjudicialin the
15. Articles 251 and 254 name of 'due process of law' clause has made
provide that in case the critics to describe it as a
of a conflict between the central law and
ber' of the Legislature, a 'third cham
state law, the central law prevails over
the state law and the state law shall be
super-legislature,
the arbiter of social policy and so
on. This
void. American principle of judicial supremacy is
also recognised in our
lb. Article 372 deals with the
continuance constitutional
but to a limited extent. Nor do we system,
in force of the
pre-constitution laws. low the British Principle of fully fol
parliamentary
supremacy. There are many limitations on
SCOPE OF JUDICIAL REVIEW the sovereignty of Parliament in our
country,
The like the written character of the
constitutional Constitution,
enactment validity order
or an executive of a legislative
can be chal- the federalism with division of powers, the
leCourt
ngeds onin the Supreme Court or in the High Fundamental Rights and the judicial review.
In effect, what exists in India is asynthesis
(a) it the following three grounds. of both, that is, the American principle of
(Partinfringes
the Fundamental Rights judicial supremacy and the British principle
Ill), of parliamentary supremacy.