(By Srishti Saxena)
Judicial Review is a legal doctrine whereby court can examine or review an executive or legislative act, such as law or some other governmental or administrative decision and determining if the act is incompatible with the Constitution, it is one of the basic concept for any democratic form of government. In some countries like United States, France & Canada Judicial Review allows the court to invalidate or nullify the law or the act of the legislature or executive if they are found to be contrary to the Constitution. The Indian Constitution provides the separation of powers between the Legislature, Executive and Judiciary so that none of the organ considers itself superior to other so that the constitutional principles can flourish. The Doctrine of separation of powers may have few advantages:
- It allows for liberty so it avoids concentration of powers in one branch.
- It promotes efficiency.
- It facilitates and enriches democratic discussion through the powers of check and balance of one branch.
The power of Judicial Review conferred upon Judiciary allows to safeguard the check and balances and to ensure the separation of powers of other two branches of the government.
Judicial Review is the power of the court to consider the Constitutionality of acts of organs of government & declare it unconstitutional if it violates or is inconsistent with the basic principles of Grundnorm i.e Constitution.
The Doctrine of Judicial Review was for the first time propounded by the Supreme Court of America. In case of Marbury v Madison (1803), U.S Supreme Court held that it had the power of Judicial Review and that it would review the Constitutionality of Acts passed by the legislatures. While applying the doctrine of Judicial Review in USA, the Supreme Court has the power to say what the law is and in case of conflict between the Constitution and a legislative statue, the Court will follow the former, which is the superior of the two laws and declare the latter to be unconstitutional.
In India the power of Judicial Review was exercised by the courts prior to the commencement of the Constitution. The British Parliament introduced federal system in India by enacting the Government of India Act, 1935. Under this act both the centre and state legislatures were given plenary powers in their respective spheres. Federal courts were established and were given the power to interpret the Constitution and determine the constitutionality of legislative acts.
Now, Supreme Court of India acts as a successor of federal court of India after the commencement of the Constitution. The Constitution has empowered it to play an active role and to declare legislation void if it violates the Constitution.
Judicial Review in India
Unlike USA, the Constitution of India establishes the doctrine of Judicial Review in several articles such as Article 13, 32 131-136, 226 and 246.
Article 13 declares that any law which contravenes any of the provisions of the part of Fundamental Rights shall be void.
Article 32 and 226 entrusts the role of the protector & guarantor of the fundamental rights to Supreme Court and High Court.
Article 131- 136 entrusts the Court with the power to adjudicate disputes between individuals, between individuals and State, between States and Unions. The Court may be required to interpret the Constitutional provisions and the interpretation given by the Supreme Court becomes the law honoured by all Courts of the land.
Article 143 entrusts the Supreme Court with the power to advise President or a certain question of law or fact which has arisen or is likely to arise and which is of public importance.
Case: Ram Janambhumi (1993)
The question referred to the Supreme Court for its advisory opinion that whether a Hindu Temple or religious structure existed at a particular place in Ayodhya.
The Supreme Court refused to give its opinion on this reference. The reason for refusing is that: (1) the reference favoured one religious community and disfavoured another. The purpose of reference to opposed to secularism and was unconstitutional.
Article 246 talks about the distribution of power related to making any law between Union and States. The Union Parliament is empowered to make any law enshrined in List I and State legislature is empowered to make any law on matter enshrined in List II and for matters covered under List II i.e. Concurrent List both Union and State are empowered to make laws.
Scope of Judicial Review
Judicial Review is one of the essential features of Indian Constitution, it has helped to preserve the constitutional supremacy. The power of the Judicial Review is available to both the Supreme Court and High Court in the matters of both legislative & administrative action. The ways in which Judicial Review is exercised by High Court and Supreme Court.
Executive and Administrative Action: In matters of executive and administrative action Judicial Review has developed various doctrines like “principles of natural Justice”, “reasonableness”, “proportionality” and “legitimate expectations”.
Principle of Natural Justice has been exercised by the court in the case of Maneka Gandhi v Union of India. Supreme Court in this case while invoking its Judicial Review powers in administrative matters held that in the matter of confiscation of passport a hearing i.e. audi alteram partem should have been followed in the interest of principles of Natural Justice.
The Courts have often used the principle of reasonableness in cases that involve state action. The Contract law is an example to this. Whenever States are parties to any extent the court distinguishes such contracts with that of contracts entered between private individuals or parties.
Basic Structure : The Supreme Court has extended the principle of Judicial Review to the matters concerning the constitutional amendments by developing the doctrine of the basic structure of the constitution. Article 366 confers power to the Parliament to amend the Constitution. Article 13(2) restricts/ limits the Parliament’s amending authority in matters of fundamental rights. In order to overcome this restriction, the Parliament adopted 24th amendment to the Constitution.
The landmark 1973 Supreme Court case of Keshavnanada Bharti v State of Kerala the question about the unlimited constitutional amendment powers of the Parliament and established the doctrine of basic structure of Constitution. The doctrine invalidates any constitutional amendment that destroys or harms a basic structure like secularism, democracy or federalism. Supreme Court also held Judicial Review to be basic structure as a result it can nullify any constitutional amendment that abolishes or disregards Judicial Review in issues concerning fundamental rights to the citizens.
Individual and Group Rights: Article 13(2) provides that “the state shall not make any law which takes away or abridges the rights conferred by Part III i.e Fundamental Rights and any law made in contravention of this shall to the extent of contravention be void. This provision is considered to be the “heart of the Constitution”. It provides the powers of Judicial Review to the Courts in the matters of fundamental rights. Article 32 offers the Supreme Court the power to enforce fundamental rights and provides one of the right to move Supreme Court for the enforcement of those rights. The Supreme Court has the authority to issue orders or writs in the Nature of : Habeas Corpus, Mandamus, prohibition, quo warranto and certiorari.
- Habeas Corpus deals with the order to release person who is unlawfully detained.
- Mandamus, an order to a public authority to do its duty.
- Prohibition, an order to prevent a subordinate Court from continuing on a case.
- Quo Warranto is to issue a directive to a person to vacate an office wrongfully occupied.
- Certiorari an order to remove a case from a subordinate Court and get the proceedings before it.
Court while exercising the power of Judicial Review have the doctrine of locus standi which means right to appear before or petition the court for the enforcement of fundamental rights of those who lack access to courts due to the reason of poverty of social disability.
Conclusion: The Court serves as a guiding light in the nations even if it cannot become sheriffs to the nations”.
The Courts acts as a guarantor and protector of the fundamental rights of the citizen but it should not use their powers arbitrarily. The Judicial Review is the basic structure of the Constitution of India and any attempt to destroy or damage the basic structure is unconstitutional.