Judicial review in India is a process by which the Supreme Court and the High Courts of India examine, determine and invalidate the Executive or Legislative actions inconsistent with the Constitution of India.[1] The Constitution of India explicitly provides for judicial review through Articles 13, 32, 131 through 136, 143, 226 and 246.[2]

Judicial review is one of the checks and balances in the separation of powers, the power of the judiciary to supervise the legislative and executive branches and ensure constitutional supremacy.[3] The Supreme Court and the High Courts have the power to invalidate any law, ordinance, order, bye-law, rule, regulation, notification, custom or usage that has the force of law and is incompatible with the terms of the Constitution of India.[1] Since Kesavananda Bharati v. State of Kerala (1970), the courts can invalidate any constitutional amendments if they infringe on the Basic Structure of the Constitution of India.[1][3]

Frequently, judicial review is used to protect and enforce the Fundamental Rights guaranteed in the Constitution. To a lesser extent, judicial review is used in matters concerning legislative competence concerning the centre-state relations.

History

Constituent Assembly

Article 13

Article 13 deals with the Laws inconsistent with the Fundamental Rights. The Constituent Assembly debated the Draft Article on the 25th, 26th and 29th November 1948 and adopted the amended Draft Article on 29 November 1948.[4][5]

The executive and legislative bodies cannot take any actions that infringe on the Rights conferred by Part 3 of the Constitution. If they do, the Courts can void part of the legislative or executive action that infringes on the Rights.[4]

Article 32

Article 32 guarantees the right to approach the Supreme Court for Constitutional Remedies when their Fundamental Rights are violated. The Constituent Assembly debated and adopted the Draft Article with some amendments on 9th December 1948.[6]

The Constituent Assembly was unanimous about the importance of the Article. Gammiḍidala Durgabai, the only woman in the Committee on the Rules of Procedure, said [5][7]

This is a right which is fundamental to all the fundamental rights guaranteed under this Constitution.

Madabhushi Ananthasayanam Ayyangar, Member of the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas, said[5][7]

The Supreme Court according to me is the Supreme guardian of the citizen’s rights in any democracy. I would even go further and say that it is the soul of democracy. The executive which comes into being for the time being is apt to abuse its powers, and therefore the Supreme Court must be there, strong and un-trammelled by the day to day passions.

B. R. Ambedkar, Chairman of the Drafting Committee, noting the majority of those who spoke on this article have realised the importance and significance, said,[5][7]

If I was asked to name any particular article in this Constitution as the most important—an article without which this Constitution would be a nullity—I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance.

While the members have recognised the importance of Constitutional Remedies, B. R. Ambedkar noted that despite the discussions on writs, members have not realised the importance of including the writs in this Article. After the adoption of the Constitution, a simple majority would not be able to take away the power to issue writs.[5][7]

Article 141

Article 141 stated that the decisions of the Supreme Court were binding on all other courts in India. The Constituent Assembly debated and adopted the Draft Article on 27th May 1949.[8]

During the debate, B. R. Ambedkar clarified that though the Article reads all courts in India, it does not include the Supreme Court. The Supreme Court would be free to change its decision and take a different view from the one it had taken before. Following the clarification, the Draft Article was adopted without any amendment.[8][9]

Article 142

Article 142 stated that any decree or order passed by the Supreme Court to do complete justice was enforceable throughout the territory of India. The Constituent Assembly adopted the Draft Article on 27th May 1949.[9][10]

Parliamentary Supremacy

The Parliament enacted the First Amendment to the Constitution on 18th June 1951, adding the Ninth Schedule to Constitution to protect specific laws from judicial review.[1][3] When the constitutionality of the amendment was challenged, a five-judge bench of the Supreme Court held that Article 368 grants the Parliament the power to amend the Constitution, including the Fundamental Rights and Article 368 in Shankari Prasad Singh Deo v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965). The Bench held that the term law in Article 13(2) does not include the Constitutional Amendments.[1][3][11][12]

Judicial Supremacy

An eleven-judge bench of the Supreme Court overruled the previous ruling on judicial review of the Constitutional Amendments in Golaknath v. State Of Punjab (1967). Since the amendment of the Constitution is a legislative process, an amendment under Article 368 is law within the meaning of Article 13 of the Constitution. Therefore, an amendment that "takes away or abridges" a Fundamental Right is void.[1][3][13]

Basic Structure Doctrine

In response to the Golaknath v. State Of Punjab (1967) ruling, the Parliament passed amendments restricting the power of judicial review. The Twenty-fourth Amendment excluded the Constitutional Amendment passed under Article 368 from the term law in Article 13(2). As a result, the Courts cannot invalidate the Constitutional Amendment for infringing the Fundamental Rights. Twenty-fifth Amendment added Article 31C that the Supreme Court cannot invalidate any law related to Directive Principles in Article 39 (b) and (c) for infringing the Fundamental Rights.[1][3][14]

When the Twenty-fourth, Twenty-fifth and Twenty-ninth Constitutional Amendments were challenged, an thirteen-judge Bench of the Supreme Court overruled the Golaknath v. State Of Punjab (1967) in the verdict of Kesavananda Bharati v. State of Kerala (1973). The Bench held that Article 368 contained both power and procedure to amend the Constitution, and the term law in Article 13(2) does not include Constitutional Amendments but Article 368 does not empower the Parliament to alter the Basic Structure of the Constitution, thus establishing the Basic Structure Doctrine. The Bench upheld the Twenty-fourth and Twenty-ninth Constitutional Amendments. However, it struck down the third clause in the Twenty-fifth Amendment that restricted the power of judicial review of laws for infringing Fundamental Rights. The Bench held that the separation of powers is an element of the Constitution protected by the Basic Structure Doctrine, where judicial review is one of the checks and balances in the separation of powers.[1][3][15] A five-judge Bench of the Supreme Court affirmed and further clarified the Basic Structure Doctrine in Indira Nehru Gandhi v. Raj Narain (1975). The Bench identified the rule of law, which relies on effective judicial review, as an element of the basic structure of the Constitution.[1][3][16][17]

Constitutional Supremacy

In response to the Kesavananda Bharati v. State of Kerala (1973), the Parliament passed the Forty-second Amendment to [1][3][14] A five-judge Bench of the Supreme Court applied and clarified the Basic Structure Doctrine in Minerva Mills v. Union of India (1977). The Bench struck down sections of the Amendment that removed the power of the Courts to review the Constitutional Amendments and accorded precedence to the Directive Principles of State Policy over Fundamental Rights. The Bench clarified that the Constitution grants the Parliament the power to amend, not destroy. While ruling this case, the Bench explicitly held that judicial Review is an element of the Constitution protected by the Basic Structure Doctrine.[1][3][18]

A five-judge Bench of the Supreme Court held that the laws under the Ninth Schedule, before the Kesavananda Bharati v. State of Kerala (1973) case, cannot be challenged in the Court for violating Fundamental Rights in Waman Rao v. Union of India (1981). In doing so, the Bench established the Doctrine of Prospective Overruling, which dictates that a decision in a particular case would have an operation in the future and will not carry any retrospective effect on the past judgments.[3][19] Later, a nine-judge Bench of the Supreme Court clarified that any law placed in the Ninth Schedule after the Kesavananda Bharati v. State of Kerala (1963) case is subject to judicial review on infringement of the Fundamental Rights in IR Coelho v. State of Tamil Nadu (2007).[3][20]

When the constitutionality of the Tenth Schedule was challenged in Kihoto Hollohan v Zachillhu (1992), a five-judge Bench of the Supreme Court upheld the power of the Speaker to decide on questions of disqualification but voided the provision excluding the decision from judicial review. The Bench noted that the power of the Speaker is judicial power, which is required to adhere to the rule of law and cannot be outside the purview of judicial review. The Bench limited the scope of judicial review to claims of bias and other principles of natural justice.[21][22]

While dealing with the exclusion of High Court jurisdiction in service affairs, a seven-judge Bench of the Supreme Court declared that Article 32 and Article 226 of the Constitution, which grants the power of judicial review over legislative action to the Supreme Court and the High Courts, is an integral and essential feature of the basic structure of the Constitution in L. Chandra Kumar v. Union of India (1997). The Bench held that if a law excluded the jurisdiction of the High Court without setting up an alternative arrangement for judicial review, it would be violation of the basic structure and hence outside the constituent power of the Parliament.[21][23]

Provisions of the Constitution

The following is a list of Articles of the Constitution of India related to the judicial review:[2]

Part No Part Article No Article
3 Fundamental Rights 13 Laws inconsistent with or in derogation of the Fundamental Rights
32 Remedies for enforcement of rights conferred by Part 3 of Constitution of India
5 The Union 131 Original jurisdiction of the Supreme Court
132 Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases
133 Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
134 Appellate jurisdiction of Supreme Court in regard to criminal matters
135 Jurisdiction and powers of the Federal Court of India under existing law to be exercisable by the Supreme Court
136 Special leave to appeal by the Supreme Court
141 Law declared by Supreme Court to be binding on all courts
142 Enforcement of decrees and orders of Supreme Court
143 Power of President to consult Supreme Court
6 The State 226 Power of High Courts to issue certain writs
227 Power of superintendence over all courts by the High Court
11 Relations between the Union and the States 245 Extent of laws made by Parliament and by the Legislatures of States
246 Subject-matter of laws made by Parliament and by the Legislatures of States
251 Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the Legislatures of States
252 Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State
253 Legislation for giving effect to international agreements
254 Inconsistency between laws made by Parliament and laws made by the Legislatures of States
21 Temporary, Transitional and Special Provisions 372 Continuance in force of existing laws and their adaptation

Comparison

According to the comparative constitutional analysis by Dr Arne Mavčič, judicial review in India follows the American Method, where the judicial review is exercised only in concrete cases or controversies and only in laws that are in effect or actions. This method differs from French Model, where judicial review is required before the law takes effect and in the abstract, without an actual case or controversy. In the European Model, the Courts can review after the law has taken effect, though either on concrete or abstract claims.[24][25]

According to classification based on the organisational structure by Dr Arne Mavčič, India follows the High Court model, where only the Supreme Court and High Courts possess the power of judicial review.[24]

Standard of Review

Judicial self-restraint concerning legislative power manifests in the form of the presumption of constitutionality of the challenged statutes. While ruling in the Charanjit Lal v. Union of India (1950), Justice Fazl Ali held[26]

The presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.[26]

Chief Justice S H Kapadia urged the judiciary to maintain self-restraint, respect the separation of power and not overtake the legislative function in the fifth M C Setalvad Memorial Lecture on Judicial Ethics at New Delhi on 16th April 2011.[27]

Judicial activism, which is not grounded on a textual commitment to the Constitution or the statute, raises questions of accountability of the judiciary whose members are not chosen by any democratic process and whose members are not answerable to the electorate or the legislature or the executive.[27]

Role of Judicial Review

Federalism

While dealing with the blatant misuse of Article 356, a nine-judge Bench of the Supreme Court reiterated that judicial review is a basic structure of the Constitution and held that the proclamation of the imposing President's Rule in the State is subject to judicial review in S. R. Bommai v. Union of India (1994). [3][28]

Fundamental Rights

A six-judge Bench of the Supreme Court implied that various Fundamental Rights in different Articles were mutually exclusive in the verdict of A. K. Gopalan v. State of Madras (1950).[29] This judgment influenced the judicial interpretation of Fundamental rights for 20 years, until R.C. Cooper v. Union of India (1970), where an eleven-judge Bench overruled it and held that Fundamental Rights are not mutually exclusive.[30]

Expansion

The verdict of R.C. Cooper v. Union of India (1970) significantly changed the way the Courts interpreted Fundamental Rights. While ruling in the case of Maneka Gandhi v. Union of India (1978), a seven-judge Bench of the Supreme Court significantly expanded the interpretation of Article 21 of the Constitution, which protects life and personal liberty except for procedure established by law. Reading Article 21 with Articles 14 and 19, the Bench concluded that the "law" has to be reasonable and the "procedure" should be just, fair and reasonable. Essentially, the Bench read Articles 14 and 19 into Article 21.[31]

While deciding the Sunil Batra v. Delhi Administration (1978), a five-judge Bench of the Supreme Court held that the despite the lack of the Due Process Clause in the Constitution of India same consequence ensued after the decisions in R.C. Cooper v. Union of India (1970) and Maneka Gandhi v. Union of India (1978).[32] While ruling in Bachan Singh v. State Of Punjab (1980), a five-judge Bench of the Supreme Court held that following Maneka Gandhi v. Union of India (1978), Article 21 will read to say, "no person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law."[33] A five-judge Bench of the Supreme Court relying on Maneka Gandhi v. Union of India (1978), Sunil Batra v. Delhi Administration (1978) and Bachan Singh v. State Of Punjab (1980) held that substantive due process is now to be applied to the Fundamental Right to life and liberty in Mohd Arif v. The Registrar (2014).[34]

References

  1. 1 2 3 4 5 6 7 8 9 10 11 Austin, Granville (1999). Working a Democratic Constitution: The Indian Experience. Oxford University Press. ISBN 9780195648881.
  2. 1 2 Shekhawat, Vibhuti Singh (1994). "Judicial Review in India : Maxims And Limitations". The Indian Journal of Political Science. 55 (2): 177–182 – via JSTOR.
  3. 1 2 3 4 5 6 7 8 9 10 11 12 13 Chauhan, D. C. (2013). "Parliamentary Sovereignty vs. Judicial Supremacy In India". The Indian Journal of Political Science. 74 (1): 99–106 – via JSTOR.
  4. 1 2 "Article 13: Laws inconsistent with or in derogation of the fundamental rights". www.constitutionofindia.net. Archived from the original on 3 April 2023. Retrieved 3 April 2023.
  5. 1 2 3 4 5 Constituent Assembly of India, Constituent Assembly Debates: 4th November 1948 to 8th January 1949 (PDF), vol. 7, archived from the original (PDF) on 29 November 2020
  6. ↑ "Article 32: Remedies for enforcement of rights conferred by this Part". www.constitutionofindia.net. Archived from the original on 3 April 2023. Retrieved 3 April 2023.
  7. 1 2 3 4 "Constituent Assembly Debates: 09 Dec 1948". www.constitutionofindia.net. Archived from the original on 3 April 2023. Retrieved 3 April 2023.
  8. 1 2 "Article 141: Law declared by Supreme Court to be binding on all courts". www.constitutionofindia.net. Archived from the original on 3 April 2023. Retrieved 3 April 2023.
  9. 1 2 "Constituent Assembly Debates: 27 May 1949". www.constitutionofindia.net. Archived from the original on 3 April 2023. Retrieved 3 April 2023.
  10. ↑ "Article 142: Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc". www.constitutionofindia.net. Archived from the original on 3 April 2023. Retrieved 3 April 2023.
  11. ↑ Sankari Prasad Singh Deo v. Union of India, 1951 AIR 458 (Supreme Court of India 5 October 1951).
  12. ↑ Sajjan Singh v. State of Rajasthan, 1965 AIR 845 (Supreme Court of India 30 October 1964).
  13. ↑ I.C. Golaknath & Ors. v. State of Punjab and Anrs, 1967 AIR 1643 (Supreme Court of India 27 February 1967).
  14. 1 2 Raj, Kaleeswaram (17 February 2023). "Basic Structure as democratic defence". The New Indian Express. Archived from the original on 17 February 2023.
  15. ↑ Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (Supreme Court of India 24 April 1973).
  16. ↑ Gupta, Balram K. (11 June 2020). "Judicial Review: A Tool to Shape Constitutional Jurisprudence". In Malik, Lokendra; Khurshid, Salman; Bedi, Shruti; Luthra, Sidharth (eds.). Judicial Review: Process, Powers, and Problems. Cambridge University Press. pp. 127–144. ISBN 9781108836036.
  17. ↑ Indira Nehru Gandhi v. Raj Narain, 1975 AIR 2299 (Supreme Court of India 7 November 1975).
  18. ↑ Minerva Mills Ltd. and Ors. vs Union Of India and Ors., AIR 1980 SC 1789 (Supreme Court of India 31 July 1980).
  19. ↑ Waman Rao & Ors v. Union of India, 1981 2 SCR 1 (Supreme Court of India 13 November 1980).
  20. ↑ IR Coelho v. State of Tamil Nadu, AIR 2007 SC 861 (Supreme Court of India 11 January 2007).
  21. 1 2 Rao, Gurram Ramachandra (10 April 2003). "India: Judicial Review in India". Mondaq. Archived from the original on 19 February 2023.
  22. ↑ Kihoto Hollohan v Zachillhu, 1992 SCR (1) 68 (Supreme Court of India 18 February 1992).
  23. ↑ L. Chandra Kumar v. Union of India, 1995 AIR 1151 (Supreme Court of India 2 December 1994).
  24. 1 2 Mavčič, Arne (2007). "A Tabular Presentation of Constitutional/Judicial Review Around the World". www.concourts.net. Archived from the original on 8 July 2007.
  25. ↑ Tate, C. Neal. "Judicial review: Definition, Forms, & Facts". Britannica. Retrieved 1 April 2023.
  26. 1 2 Charanjit Lal v. Union of India, 1951 AIR 41 (Supreme Court of India 4 December 1950).
  27. 1 2 Sharma, Tanu (17 April 2011). "CJI sounds warning bells on judiciary & activism link". The Indian Express. Archived from the original on 1 April 2023.
  28. ↑ S. R. Bommai v. Union of India, 1994 AIR 1918 (Supreme Court of India 11 March 1994).
  29. ↑ A. K. Gopalan v. State of Madras, 1950 AIR 27 (Supreme Court of India 19 May 1950).
  30. ↑ R.C. Cooper (Bank Nationalisation) v. Union of India, 1970 AIR 564 (Supreme Court of India 10 February 1970).
  31. ↑ Maneka Gandhi v. Union of India, 1978 AIR 597 (Supreme Court of India 25 January 1978).
  32. ↑ Sunil Batra v. Delhi Administration, 1978 AIR 1675 (Supreme Court of India 30 August 1978).
  33. ↑ Bachan Singh v. State Of Punjab, 1982 AIR 1325 (Supreme Court of India 16 August 1982).
  34. ↑ Mohd Arif v. The Registrar, the Supreme Court of India, Writ Petition (Criminal) No. 77 of 2014 (Supreme Court of India 2 September 2014).
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