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Judicial review is a special power of the Supreme Court and the High

Courts in India to scrutinize whether a law passed by the legislature or an


action taken by the executive is in accordance with the provisions of the
Constitution or not. If it is found that such a law or an action not in
accordance with the Constitution, then it can declare them as invalid or
unconstitutional. This means that the judiciary has to act as the guardian
or

custodian

of

the

Constitution.

The Supreme Court and the High Courts can exercise this power on two
conditions (1) whether the law or the executive action which has come
under scrutiny falls within the competence of the authority that has
framed it, and (2) whether it is consistent with Part III of the Constitution
dealing

with

the

Fundamental

Rights.

This is an important power of the Supreme Court and the High Courts.
They have been protecting the Constitution from irresponsible laws and
arbitrary use of power by the executive, by exercising this power. Our
Fundamental Rights are also preserved by this power of the judiciary.
The concept of judicial review originated in the United States of America in
the Marbury V.Madison case of 1803. The Chief Justice of the Supreme
Court of America, John Marshall while delivering his judgement in this case
used the famous Due Process of Law clause of the American
Constitution. According to this clause, due means what is just ajnd
proper and law means natural law. Justice Marshall said that as the
Supreme Court had been made the protector of the Constitution and the
rights of the people, so it had to perform its duty and give justice. While
doing so, it would try to determine the exact meaning of law, to expand its
details and apply the general principles of justice, equity and morality. The
process, thus, initiated by justice Marshall has been continuing and the
Supreme Court has been creating some new laws while deciding various
cases. The power of judicial review has made the Supreme Court of
America

one

of

the

strongest

judiciaries

in

the

world.

However, the Supreme Court of India is not as powerful as the Supreme


Court of America so far as the power of judicial review is concerned. In
India, the Supreme Court while exercising its power of judicial review has
to follow the principle of procedure established by law. Article 21 of the
Indian Constitution provides that no person shall be deprived of his life or
personal liberty except according to procedure established by law. Here,
the term law does not mean natural law but it means State-made
laws. In other words, the court can only question the procedure and if the
procedure is not followed, the court can declare any legislation made by
the Parliament as unconstitutional. Further, the Supreme Court can
declare any legislation as invalid if it violates the provisions of the
Constitution. Thus, the Supreme Court of India has limited power of
judicial review. Still, it has been able to exercise this power effectively in
many cases and interpret and protect the provisions of the Constitution.

Conclusion
In many countries with written constitutions, there prevails the doctrine of
judicial review. It means that the constitution is the supreme law of the
land and any law inconsistent therewith is void. In this paper the author is
describing the scope and limits of judicial review.
Judicial review means the reconsideration of a degree or sentence of an
inferior Court, but these days the concept has undergone great changes
and the literal meaning of judicial review is no longer valid. The power to
judicially review any decision is an extraordinary power vested in a
superior court for checking the exercise of power of public authorities,
whether they are constitutional, quasi-judicial or governmental. It is only
available for exercise when a person who is aggrieved by such a decision
brings it before the court.
It is common knowledge that while discharging executive functions, public
authorities take various decisions for which they should be allowed
sufficient space for a proper exercise of discretion. It is keeping this in
mind that, by and large it is only the decision making process that is
actually subjected to judicial review.
Legislature, executive and judiciary under the Constitution are to exercise
powers with checks and balances, but not in water-tight rigid mould. In
India, by basis of Arts. 32 and 136, the Supreme Court can exercise the
power of judicial review. Similarly, under Art. 226 and 227 High Courts
have a power of judicial review. Judicial review in India comprises of three
aspects:

(1)
(2)

Judicial
Judicial

review
review

of
of

legislative
administrative

action,
action,

(3) Judicial review of judicial decisions.


Thus, judicial review is a highly complex and developing subject. It has its
roots long back and its scope and extent varies from case to case. It is
considered to be the basic feature of the Constitution. The court in its
exercise of its power of judicial review would zealously guard the human
rights, fundamental rights and the citizens rights of life and liberty as also
many non-statutory powers of governmental bodies as regards their
control over property and assets of various kinds, which could be
expended on building, hospitals, roads and the like, or overseas aid, or
compensating victims of crime.
The limits on the power of judicial review is a recurring theme in the
evolution of our Constitution. In some of its distinguished judgments, the
Supreme Court has defined the outline of sovereign power as distributed
amongst the three branches of Government namely, the legislature, the
executive and the judiciary.
There is a compelling case that the power of judicial review delegated to
our superior courts in various provisions of the Constitution itself is as
much by the command of the people. But people who are in favor of this
view argues that judicial inquiry of the validity of legislation is a necessary
protection against the oppression of majorities, that the judges do not
check the people, the Constitution does and since the Constitution itself is
popularly ratified, there is nothing undemocratic in the power of judicial
review.
The decision of the Honorable Supreme Court of India in Kesavananda
Bhartis case marked and explained the term which is called basic
structure to measure whether the Parliament is seeking to destroy the
Constitution, by using its powers under art. 368, which was so far,
understood to be a power, the exercise of which was not subject to Judicial
scrutiny. Basic Structure is not contained in one or more provisions of the

Constitution of India, but it is supposed to be the sum total of the core of


our Constitution.
Also in the same case the honorable court has interpreted the scope and
meaning of judicial review. ...The power of judicial review is, however,
confined not merely to deciding whether in making the impugned laws the
Central or state legislatures have acted within the four corners of the
legislative lists earmarked for them; the courts also deal with the question
as to whether the laws are made in conformity with and not in violation of
the other provisions of the Constitution.... As long as some fundamental
rights exist and are a part of the Constitution, the power of judicial review
has also to be exercised with a view to see that the guarantees afforded
by those rights are not contravened.... review has thus become an integral
part of our constitutional system and a power has been vested in the high
courts and the Supreme Court to decide about the constitutional validity
of provisions of statutes. If the provisions of the statute are found to be
violative of any Art. Of the Constitution, which is the touchstone for the
validity of all laws, the Supreme Court and the high courts are empowered
to strike down the said provisions.
In Minerva Mills vs. Union of India, it was observed by the Supreme Court
that the clauses of art. 31-C as introduced by the Constitution (42nd
Amendment) Act, 1976, which required to take away the power of judicial
review were unconstitutional. However, judicial review was not held to be
part of the basic structure of the Constitution by the majority in this
decision, although Bhagwati J in his minority decision traced the power of
judicial review to Arts. 32 and 226 and observed it to be a part of the
basic structure of the Constitution, and if taken away by a constitutional
amendment would amount to subversion of the Constitution.
Justice Ahmadi referred the case State of Madras v. V. G. Row, where Chief
Justice

Patanjali

Shastri

held

that:

. Our Constitution contains express provision for judicial review of


legislation

as

to its conformity with the Constitution,. If, then, the courts in this

country face up to such important and none too easy task, it is not out of
any desire to tilt at legislative authority in a crusader's spirit, but in
discharge of a duty plainly laid upon them by the Constitution. This is
especially true as regards the 'fundamental rights', as to which this court
has been assigned the role of a sentinel on the qui vive. While the court
naturally attaches great weight to the legislative judgment, it may not
desert its own duty to determine finally the Constitutionality of an
impugned statute.

Judicial Review in India: Concept, Provisions, Amendments and


Other Details!
The power of judiciary to review and determine the validity of a law or an
order may be described as the powers of Judicial Review.
It means that the constitution is the supreme law of the land and any law
inconsistent therewith is void through judicial review.
It is the power exerted by the courts of a country to examine the actions
of the legislatures, executive and administrative arms of government and
to ensure that such actions conform to the provisions of the nations
Constitution. Judicial review has two important functions, like, of

legitimizing government action and the protection of constitution against


any undue encroachment by the government.
Extensive Concept of Judicial Review in India:
The Supreme Court has been vested with the power of judicial review. It
means that the Supreme Court may review its own Judgement order.
Judicial review can be defined as the competence of a court of law to
declare the constitutionality or otherwise of a legislative enactment.
Being the guardian of the Fundamental Rights and arbiter of the
constitutional conflicts between the Union and the States with respect to
the division of powers between them, the Supreme Court enjoys the
competence to exercise the power of reviewing legislative enactments
both of Parliament and the States legislatures.
The power of the court to declare legislative enactments invalid is
expressively provided by the Constitution under Article 13, which declares
that every law in force, or every future law inconsistent with or in
derogation of the Fundamental Rights, shall be void. Other Articles of the
Constitution (131-136) have also expressively vested in the Supreme
Court the power of reviewing legislative enactments of the Union and the
States.
The jurisdiction of the Supreme Court was curtailed by the 42nd
Amendment of the Constitution (1976), in several ways. But some of these
changes have been repealed by the 43rd Amendment Act, 1977. But there
are several other provisions which were introduced by the 42nd
Amendment Act 1976 not repealed so far.
These are:
(i) Arts. 323 A-B. The intent of these two new Articles was to take away
the jurisdiction of the Supreme Court under Art. 32 over orders and
decisions of Administrative Tribunals. These Articles could, however, be
implemented only by legislation. Art. 323A has been implemented by the
Administrative Tribunals Act, 1985 (ii) Arts. 368 (4)-(5). These two Clauses

were inserted in Art. 368 with a view to preventing the Supreme Court to
invalidate any Constitutional Amendment Act on the theory of basic
features of the Constitution.
These Clauses have been emasculated by the Supreme Court itself,
striking them down on the ground that they are violative in the two basic
features of the Constitution:
(a) the limited nature of the amending power under Art. 368 and
(b) judicial review in the Minerva Mills case.
The court was very reluctant and cautious to exercise its power of Judicial
Review, during the first decade, when the Supreme Court declared invalid
only one of total 694 Acts passed by the Parliament.
During the second decade the court asserted its authority without any
hesitation which is reflected in the famous Golak Nath case and
Kesavananda Barti case. In these cases the Supreme Court assumed the
role of constitution making.
Indian Judiciary has been able to overcome the restriction that was put on
it by the 42nd amendment, with the help of the 43rd and 44th
amendments. Now the redeeming quality of Indian judiciary is that no
future governments could clip its wings or dilute its right of Judicial
Review. In fact, now the Judicial Review is considered to be the basic
feature of our Constitution.
Constitutional Provisions for Judicial Review:
The Indian Constitution adopted the Judicial Review on lines of U.S.
Constitution. Parliament is not supreme under the Constitution of India. Its
powers are limited in a manner that the power is divided between centre
and states.
Moreover the Supreme Court enjoys a position which entrusts it with the
power of reviewing the legislative enactments both of Parliament and the

State Legislatures. This grants the court a powerful instrument of judicial


review under the constitution.
Both the political theory and text of the Constitution has granted the
judiciary the power of judicial review of legislation. The Constitutional
Provisions which guarantee judicial review of legislation are Articles 13,
32, 131-136, 143, 226, 145, 246, 251, 254 and 372.
Article 372 (1) establishes the judicial review of the pre-constitution
legislation.
Article 13 declares that any law which contravenes any of the provisions
of the part of Fundamental Rights shall be void.
Articles 32 and 226 entrusts the roles of the protector and guarantor of
fundamental rights to the Supreme and High Courts.
Article 251 and 254 states that in case of inconsistency between union
and state laws, the state law shall be void.
Article 246 (3) ensures the state legislatures exclusive powers on matters
pertaining to the State List.
Article 245 states that the powers of both Parliament and State
legislatures are subject to the provisions of the constitution.
The legitimacy of any legislation can be challenged in the court of law on
the grounds that the legislature is not competent enough to pass a law on
that particular subject matter; the law is repugnant to the provisions of
the constitutions; or the law infringes one of the fundamental rights.
Articles 131-136 entrusts the court with the power to adjudicate disputes
between individuals, between individuals and the state, between the
states and the union; but the court may be required to interpret the
provisions of the constitution and the interpretation given by the Supreme
Court becomes the law honoured by all courts of the land.

There is no express provision in our constitution empowering the courts to


invalidate laws, but the constitution has imposed definite limitations upon
each of the organs, the transgression of which would make the law void.
The court is entrusted with the task of deciding whether any of the constitutional limitations has been transgressed or not.
Constitutional Amendments and the Use of Judicial Review:
Until 1967, the Supreme Court upheld that the Amendment Acts were not
ordinary laws and could not be struck down by the application of Article
13 (2).
It was in the famous Golak Nath Vs. the state of Punjab case in 1967,
where the validity of three constitutional amendments (1st, 4th and 17th)
was challenged, that the Supreme Court reversed its earlier decision and
uphold the provision under article 368 which put a check on the
Parliaments propensity to abridge the fundamental Rights under chapter
III of the Constitution.
In the Kesavananda Bharti Vs. State of Kerala case in 1973, the
constitutional validity of the twenty-fourth, twenty fifth and twenty ninth
amendments was challenged wherein the court held that even though the
Parliament is entitled to amend any provision of the constitution it should
not tamper with the essential features of the constitution; and that Article
31c is void since it takes away invaluable fundamental rights.
The

court

balances

the

felt

necessities

of

the

time

and

constitutional fundamentals when scrutinizing the validity of


any law. H.M. Seervai has enumerated some of the canyons,
maxims and norms followed by the court:
1. There is a presumption in favour of constitutionality, and a law will riot
be declared tin constitutional unless the case is so clear as to be free from
doubt; and the onus to prove that its unconstitutional lies upon the
person who challenges it.

2. Where the validity of a stature is questioned and there are two


interpretations, one of which would make the law valid, and the other
void, the former must be preferred and the validity of the law will be
upheld.
3. The court will not decide constitutional questions if a case is capable of
being decided on other grounds.
4. The court will not decide a larger constitutional question than is
required by the case before it.
5. The court will not hear an objection as to the constitutionality of a law
by a person whose rights are not affected by it.
6. Ordinarily, courts should not pronounce on the validity of an Act or part
of an Act which has not been brought into force, because till then the
question of validity would be merely academic.
7. In a later case, the Minerva Mill case, the Supreme Court went a step
ahead. The 42nd Constitutional Amendment of 1976 among other things
had added a clause to Article 368 placing a constitutional amendment
beyond judicial review. The court held that this was against the doctrine of
judicial review, the basic feature of the Constitution.
Judicial Review under Private Law:
There are remedies against the actions of the executive under private law.
A suit can be filed under section 9 of the Code of Civil Procedure. The suit
can be for damages from the government or other public authority when
right is violated and an injury is suffered. It can also be for a declaration of
the illegality of the administrative action.
A suit can be filed for issuing injunction against the act that threatens the
rights of persons. These remedies can, however, be specifically excluded
by a statute under which the administration acts. In such cases the
statute will provide alternative remedies.

If it does not, or if the alternative remedies provided are not adequate or


sufficient the aggrieved person will have a right to file a suit. When the
alternative remedies are effective the citizen will have the right only to
resort to those remedies and not the remedy under the Code of Civil
Procedure. These rules are laid down through judicial decisions.
Strategy of Judicial Review:
The strategy of judicial review can be divided broadly into public law
review and private law review. Under the Constitution, legislative and
administrative actions can be reviewed by courts under Articles 32, 136,
226 and 227. Such review is called public law review. Article 32
guarantees the right to move the Supreme Court if any fundamental right
can be reviewed under this provision.
Writs:
Article 226 can be, and is more often, used for reviewing the action of
administration. One can say that there is an increase of litigation in this
respect. The High Court can issue directions, orders or writs in the nature
of habeas corpus mandamus, prohibition, quo-warranto, and certiorari for
the enforcement of fundamental rights or for any other purpose.
Habeas corpus is a write issued by the court to bring before the court a
person from illegal custody. The court will examine the legality of
detention and release the person if detention is found illegal.
Mandamus is issued to a public authority to do an act which under law, it
is obliged to do or to forbear from doing.
Prohibition is a write to prevent a court or tribune! from doing something
in excess of its authority. High Court has power to issue an order of
prohibition to the executive authority prohibiting it from acting without
jurisdiction.
Certiorari is a write issued to a judicial or quasi-judicial authority to correct
its order. This writ is issued on specified grounds like violation of natural

justice; excess, abuse or lack of jurisdiction; fraud; and error of law


apparent on the face of the record.
Quo-warranto is a writ issued to a person who authorisedly occupies a
public office to step down from that office. High courts and the Supreme
Court have the power to issue not only these writs but also appropriate
directions and orders.
Judicial Review and Contempt of Court:
It is mandatory that an administrative officer or authority should obey the
directions of a court and execute the decisions of the court. What action
can be court take if they do not do this? The court has neither the sword
not the purse like the executive. It has a potential power.
It has the power to take action of contempt of court. Those who violate or
disobey the decisions of the courts are proceeded against under this
power. They can be punished and sent to jail. Obviously the contempt
power is the only weapon in the hand of judiciary to see that their
decisions are executed.
Locus standi is the first limitation on judicial review. This means that only
a person aggrieved by an administrative action or by an unjust provision
of law shall have the right to move the court for redressal. Under this
traditional rule a third party who is not affected by the action cannot move
the court.
Another limitation is that before a person moves the High Courts and the
Supreme Court invoking their extraordinary jurisdiction, he should have
exhausted all alternative remedies. For example, these may be a
hierarchy of authorities provided in legislation to look-into the grievances
of the affected party. The aggrieved person should first approach these
authorities for a remedy before invoking extraordinary jurisdiction of the
courts.
However, the alternative remedies should be equally efficacious and
effective as the remedies available from the courts are. If they are not, the

jurisdiction can be invoked. In cases of manifest injustice and the violation


of procedural fairness, alternative remedy is not a bar.
A rule has been evolved to avoid repeated adjudication on the same
matter between the same parties. If the case is finally disposed of on
merits the same issue cannot be re-agitated by any of the parties filing
another case. This limitation is called res judicata.
Changing Trends in Judicial Review:
Recently there is a rising trends in judicial activism in the land. The doors
of the judiciary are kept open for redressing the grievances of persons
who cannot ordinarily have access to justice. The strict observance of the
traditional rule of locus standi will do injustice to certain persons who do
not have the money, knowledge and facilities of approaching court.
In such cases if a public spirited person comes forward on their behalf
courts relax the rules an adjudicate over the matter. Thus, in the matter of
socially and economically backward groups or persons who are not aware
of their rights or not capable of pursuing their case in a court, the complex
and rigorous procedural formalities are not insisted upon. At this level
there are cases when press reports were taken as write petitions and
reliefs granted. Letters addressed to the courts were also treated as
petitions.
Judicial review is one of the important techniques by which the courts
examine the actions of the legislature, the executive and the other
governmental agencies and decide whether or not these actions are valid
and within the limits set by the Constitution.
Therefore, with the power of judicial review the courts act as a custodian
of the fundamental rights. The Indian Judiciary, given the federal structure
of the Constitution, also settles conflicts of jurisdiction in legislation
between the centre and the states. With the growing functions of the
modern state judicial intervention in the process of making administrative
decisions and executive them has also increased.

The important significances and utility of the power of judicial


review in India are:
1. India has a Written Constitution:
A law or an Article of the Constitution may be ambiguously worded.
So naturally the question of interpretation of Constitution is bound to arise
at times.
2. The Constitution has Provided Limited Powers to the Union and
the States:
If the Union Government or the States transgress their limits the
functioning of government will become difficult. Only a Supreme Court can
settle the disputes between the Government of India and States.

3. Interpretation of the Laws is the Peculiar Function of the


Courts:
The Constitutional law has many problems of interpretation. The
Legislature does not possess the acumen and impartiality which are
needed to explain what the law means. This function can be best
performed by a judicial body alone.
4. The Court is the Protector of the Rights of Citizens:
Restrictions can be imposed on the rights of the citizens in the interest of
security of the State and also in public interest. The Court alone can
decide whether or not those restrictions are reasonable. The Supreme
Court may say to other branches of government: thus far and no farther.
5. The Supreme Court Adapted the Constitution to Changes in
Society:
The Court played an important role in adapting the Constitution to
changes in society. The judges have very often pronounced radical
judgement, keeping in view the vast socio-economic inequalities in
society.
In May 1995, the Supreme Court reminded the Government of its
Constitutional duty to secure for the citizens a uniform civil code
throughout the territory of India. There was no necessary connection
between religion and personal law in a civilized society, said Justice
Kuldip Singh in his judgement.
6. Speedy and Economical Justice:
Some new ideas and programmes have recently been introduced in the
country, e.g. legal aid, social action, litigation and Lok Adalats. Not only
the person aggrieved by a wrong, but any member of the public can now
initiate a proceeding on behalf of the aggrieved person in either the High
Court or the Supreme Court for enforcement of Constitutional rights.

Under the new arrangements a destitute citizen can file a writ petition
even through a simple letter written on a postcard. Cognizance of public
litigation eases by the Supreme Court has added a new dimension to its
role.
Despite these powers, the Indian Supreme Court is a creature of the
Constitution and depends for the continuation of these powers on the
union legislature which can impose limitations on them by amending the
Constitution. Moreover, all these powers can also be suspended or
superseded whenever there is a declaration of emergency in the country.

Judicial Review in India: Meaning,


Features and Other Details

udicial Review refers to the power of the judiciary to interpret the


constitution and to declare any such law or order of the legislature and
executive void, if it finds them in conflict the Constitution of India.
The Constitution of India is the supreme law of the land. The Supreme
Court of India has the supreme responsibility of interpreting and
protecting it. It also acts as the guardian-protector of the Fundamental
Rights of the people. For this purpose, the Supreme Court exercises the
power of determining the constitutional validity of all laws.
It has the power to reject any law or any of its part which is found to be
unconstitutional. This power of the Supreme Court is called the Judicial
Review power. State High Courts also exercise this power but their
judgements can be rejected or modified or upheld by the Supreme Court.
(I) Judicial Review: Meaning and Definition:
Judicial Review refers to the power of the judiciary to interpret the
constitution and to declare any such law or order of the legislature and
executive void, if it finds them in conflict the Constitution of India.
Judicial Review is the power of the Judiciary by which:
(i) The court reviews the laws and rules of the legislature and executive in
cases that come before them; in litigation cases.
(ii) The court determines the constitutional validity of the laws and rules of
the government; and
(iii) The court rejects that law or any of its part which is found to be
unconstitutional or against the Constitution.
(II) Features of Judicial Review in India:
1. Judicial Review Power is used by both the Supreme Court and
High Courts:

Both the Supreme Court and High Courts exercise the power of Judicial
Review. But the final power to determine the constitutional validity of any
law is in the hands of the Supreme Court of India.
2. Judicial Review of both Central and State Laws:
Judicial Review can be conducted in respect of all Central and State laws,
the

orders

and

ordinances

of

the

executives

and

constitutional

amendments.
3. A Limitations:
Judicial Review cannot be conducted in respect of the laws incorporated in
the 9th Schedule of the Constitution.
4. It covers laws and not political issues:
Judicial Review applies only to the questions of law. It cannot be exercised
in respect of political issues.
5. Judicial Review is not automatic:
The Supreme Court does not use the power of judicial review of its own. It
can use it only when any law or rule is specifically challenged before it or
when during the course of hearing a case the validity of any law is
challenged before it.
6. Decisions in Judicial Review Cases:
The Supreme Court can decide:
(i) The law is constitutionally valid. In this case the law continues to
operate as before, or
(ii) The law is constitutionally invalid. In this case the law ceases to
operate with effect from the date of the judgment.
(iii) Only some parts or a part of the law is invalid.

In this case only invalid parts or part becomes non-operative and other
parts continue to remain in operation. However, if the invalidated
parts/part is so vital to the law that other parts cannot operate without it,
then the whole of the law gets rejected.
7. Judicial Review Decision gets implemented from the date of
Judgement:
When a law gets rejected as unconstitutional it ceases to operate from the
date of the judgment. All activities performed on the basis of the law
before the date of the judgment declaring it invalid, continue to remain
valid.
8. Principle of Procedure established by Law:
Judicial Review in India is governed by the principle: Procedure
Established by Law. Under it the court conducts one test, i.e., whether the
law has been made in accordance with the powers granted by the
Constitution to the law-making body and follows the prescribed procedure
or not. It gets rejected when it is held to be violative of procedure
established by law.
9. Clarification of Provisions which a rejected law violates:
While declaring a law unconstitutional, the Supreme Court has to cite the
provisions of the constitution which it violates. The court has to clearly
establish the invalidity of the concerned law or any of its part.
(III) Critical Evaluation of Judicial Review:
Points of criticism:
1. Undemocratic:
The critics describe Judicial Review as an undemocratic system. It
empowers the court to decide the fate of the laws passed by the
legislature, which represent the sovereign, will of the people.
2. Lack of Clarity:

The Constitution of India does not clearly describe the system of Judicial
Review. It rests upon the basis of several articles of the Constitution.
3. Source of from Administrative Problems:
When a law is struck down by the Supreme Court as unconstitutional, the
decision becomes effective from the date on which the judgement is
delivered. Now a law can face Judicial Review only when a question of its
constitutionality arises in any case being heard by the Supreme Court.
Such a case can come before the Supreme Court after 5 or 10 or more
years after the enforcement of that law. As such when the Court rejects it
as unconstitutional, it creates administrative problems. A Judicial Review
decision can create more problems than it solves.
4. Reactionary:
Several critics regard the Judicial Review system as a reactionary system.
They hold that while determining the constitutional validity of a law, the
Supreme Court often adopts a legalistic and conservative approach. It can
reject progressive laws enacted by the legislature.
5. Delaying System:
Judicial Review is a source of delay and inefficiency. The people in general
and the law-enforcing agencies in particular sometimes decide to go slow
or keep their fingers crossed in respect of the implementation of a law.
They prefer to wait and let the Supreme Court first decide its
constitutional validity in a case that may come before it at any time.
6. Tends to make the Parliament less responsible:
The critics further argue that the Judicial Review can make the Parliament
irresponsible as it can decide to depend upon the Supreme Court for
determining the constitutionality/ reasonableness of a law passed by it.
7. Fear of Judicial Tyranny:

A bench (3 or 5 or 9 judges) of the Supreme Court hears a judicial review


case. It gives a decision by a simple majority. Very often, the fate of a law
is determined by the majority of a single judge. In this way a single
judges reasoning can determine the fate of a law which had been passed
by a majority of the elected representatives of the sovereign people.
8. Reversal of its own decisions by the Supreme Court:
It is on record that on several occasions the Supreme Court reversed its
earlier decisions. The judgment in the Golaknath case reversed the earlier
judgments and the judgment in the Keshwananda Bharati case reversed
the judgment in the Golaknath case. The same enactment was held valid,
then invalid and then again valid. Such reversals reflect the element of
subjectivity in the judgments.
On all these grounds the critics strongly criticise the system of Judicial
Review as it operates in India.
(IV) Justification of Judicial Review:
A very large number of the supporters of Judicial Review do not accept the
arguments of the critics. They argue that Judicial Review is an essential
and very useful system for Indian liberal democratic and federal system. It
has been playing an important and desired role in the protection and
development of the Constitution.
(1) Judicial Review is essential for maintaining the supremacy of the
Constitution.
(2) It is essential for checking the possible misuse of power by the
legislature and executive.
(3) Judicial Review is a device for protecting the rights of the people.
(4) No one can deny the importance of judiciary as an umpire, or as an
arbiter between the centre and states for maintaining the federal balance.

(5) The grant of Judicial Review power to the judiciary is also essential for
strengthening the position of judiciary. It is also essential for securing the
independence of judiciary.
(6) The power of Judicial Review has helped the Supreme Court of India in
exercising its constitutional duties.
(7) The possibility of abuse of is power of by the Judiciary is very
less because several checks have been in existence:
(a) Lack of a clear statement of this power in any article of the
Constitution.
(b) Judicial Review is not possible on some laws. The Parliament can place
laws aimed at securing socio-economic reforms in the 9th Schedule of the
Constitution. This makes these immune from Judicial Review.
(c) The scope of Judicial Review stand limited to only legal and
constitutional cases.
(d) The Supreme Court is itself bound by the Constitution of India and the
Parliament can amend the Constitution.
(e) The grant of specific fundamental rights to the also limits the scope of
Judicial Review.
(f) The Parliament can pass laws and amendments for overriding the
hurdles created by Judicial Review.
These limitations can prevent a possible misuse of Judicial Review power
by the Courts.
A formidable fact which justifies the presence and continuance of the
Judicial Review has been the judiciousness with which it is being used by
the Supreme Court and High Courts for carrying out their constitutional
obligations. These have used it with restraint and without creating
hindrances in the way of essential socio-economic reforms.

Judicial Review and the Ninth Schedule of the Indian Constitution

Defining Judicial Review:


Judicial review is the doctrine in democratic theory under which legislative
and executive action is subject to invalidation by the judiciary.
Legislature, Executive and Judiciary are three organs of the political
system and a system of checks and balances keeps them working in
coordination with each other in a healthy manner.
Judicial Review in the Indian Context:
The provision of judicial review has been adopted in the Indian
constitution from the constitution of the United States of America. In the
Indian constitution, Judicial Review is dealt with, under Article 13. Judicial
Review implies that the Constitution is the supreme power of the nation
and all laws are under its supremacy.
Article 13 states that:
1. All the post constitutional laws, after the coming into force of
constitution, if differ from it in all or some of its provisions then the

provisions of constitution will prevail & the provisions of that post


constitutional law will hide till any amendment in constitution relating to
the same matter. In such situation, the provision of that law will again
come into force (the Theory of Eclipse).
2. In a similar manner, laws made after adoption of the Constitution by the
Constituent

Assembly

must

be

compatible

with

the

constitution;

otherwise, the laws and amendments will be deemed void-ab-initio.


In such situations, the Supreme Court or High Court interprets the laws as
if they are in conformity with the constitution. If such an interpretation is
not possible because of inconsistency, and where a separation is possible,
the provision that is inconsistent with Constitution is considered void.
The Ninth Schedule:
The first amendment to the Indian Constitution added the Ninth Schedule
to it. It was introduced by the Nehru Government, on 10 May 1951 to
address judicial decisions and pronouncements especially about the
chapter on fundamental rights. Nehru was also very clear on the purpose
behind the first amendment. The state wanted to pursue nationalisation,
take away lands from the zamindars, re-distribute them, and make special
provisions for the socially and economically backward.
Despite having architected the Constitution, Nehru was not confident that
the laws made to pursue these special interests of the state would stand
up to judicial scrutiny on account of being discriminatory.
The First Amendment that brought in Articles 31A and 31B conferring
upon the state the right to make laws to acquire private property and to
deem such laws as not being discriminatory and to further protect all such
laws from any judicial review by creating something called the Ninth
Schedule. It is interesting to note that the origins of the Ninth Schedule lie
in land acquisition by the state, given the current political debate on SEZs
and Singur, Nandigram.

Since the First Amendment, the Ninth Schedule has been relied upon to
amend the constitution multiple times over. The 4th amendment inserted
six acts to the 9th schedule. The 17th amendment added 44 more acts.
The 29th amendment brought in 2 acts from Kerala. The 34th amendment
in 1974 added 20 more land tenure and land reforms laws enacted by the
states.
In 1975, Indira Gandhis infamous abuse of executive power leading up to
emergency saw the 39th amendment adding certain central enactments.
1976 saw the 40th amendment even more to the 9th schedule. The 47th
amendment in 1984 added more, and then in 1990 the 66th amendment
gave more protection to land ceiling acts.
The 76th amendment to accommodate Tamil Nadu Governments
legislation to provide for reservations to the level of 69 percent for SC/ST
and OBCs followed. What takes the cake however is the 78th amendment,
which was about not just immunity to laws in 9th schedule, which was
suspect, but amendments to those laws and making those amendments
immune. Since then there were absurd laws from Sugarcane supporting
price to the New Delhi Urban Zoning Laws all clamoring for an exalted
spot in the much abused Ninth Schedule.
The Supreme Court Judgment and the Ninth Schedule:
In a landmark ruling on 11 January 2007, the Supreme Court of India ruled
that all laws (including those in the Ninth Schedule) would be open to
Judicial Review if they violated the basic structure of the constitution.
Chief Justice of India, Yogesh Kumar Sabharwal noted, If laws put in the
Ninth Schedule abridge or abrogate fundamental rights resulting in
violation of the basic structure of the constitution, such laws need to be
invalidated.
The Supreme Court judgment laid that the laws placed under Ninth
Schedule after April 24, 1973 shall be open to challenge in court if they
violated fundamental rights guaranteed under Article 14, 19, 20 and 21 of
the Constitution.

Impact of the Judgment:


The Judgment ended up the controversy behind the Ninth Schedule largely
and was successful to put a bar on political intentions of keeping certain
sensitive issues out of the reach of Judicial Review for narrow political
gains. The landmark judgment was successful in strengthening the democratic base of the society and bringing into the realm of justice, unfair acts
of misuse of the provision of the ninth schedule in the Constitution.

Judiciary in India: 11 Salient Features of Indian Judiciary!


The Constitution of India provides for a single integrated judicial system
with the Supreme Court at the apex, High Courts at the middle (state)
level and District Courts at the local level. It also provides for an
independent and powerful judicial system. Judiciary in India acts as the
guardian protector of the Constitution and the fundamental rights of the
people.
Salient Features of Indian Judiciary:
1. Single and Integrated Judicial System:
The Constitution establishes a single integrated judicial system for the
whole of India. The Supreme Court of India is the highest court of the

country and below it are the High Courts at the state level. Other courts
(Subordinate Courts) work under the High Courts. The Supreme Court
controls and runs the judicial administration of India. All courts in India
form links of a single judicial system.
2. Independence of Judiciary:
The Constitution of India makes judiciary truly independent.
It provides for:
(i) Appointment of judges by the President,
(ii) High qualifications for appointment as judges,
(iii) Removal of judges by a difficult method of impeachment,
(iv) High salaries, pension and other service benefits for judges,
(v) Independent establishment for the Judiciary, and
(vi) Adequate powers and functional autonomy for the Judiciary.
All these features together make the Indian Judiciary an independent
judiciary.
3. Judiciary as the Interpreter of the Constitution:
The Constitution of India is a written and enacted constitution. The right to
interpret and clarify the Constitution has been given to the Supreme
Court. It is the final interpreter of the provisions of the Constitution of
India.
4. Judicial Review:
The Constitution of India is the supreme law of the land. The Supreme
Court acts as the interpreter and protector of the Constitution. It is the
guardian of the fundamental rights and freedoms of the people. For
performing this role, it exercises the power of judicial review. The Supreme
Court has the power to determine the constitutional validity of all laws. It

can reject any such law which is held to be unconstitutional. High Courts
also exercise this power.
5. High Court for each states as well a Provision for Joint High
Courts:
The Constitution lays down that there is to be a High Court for each state.
However, two or more states can, by mutual consent, have a Joint High
Court.
6. Supreme Court as the Arbiter of legal disputes between the
Union and States:
The Constitution gives to the Supreme Court the jurisdiction in all
cases of disputes:
(i) Between the Government of India and one or more states,
(ii) Between the Government of India and any state or states on one side
and one or more states on the other, and
(iii) Between two or more states.
7. Guardian of Fundamental Rights:
Indian judiciary acts as the guardian of fundamental rights and freedoms
of the people. The people have the Right to Constitutional Remedies under
which they can seek the protection of the courts for preventing a violation
or for meeting any threat to their rights. The Supreme Court and the High
Courts have the power to issue writs for this purpose.
8. Separation of Judiciary from the Executive:
The Constitution of India provides for a separation between the judiciary
and the other two organs of the government. The judiciary is neither a
branch of the executive nor in any way subordinate to it. The judicial
administration in India is oraganised and run in accordance with the rules
and orders of the Supreme Court.

9. Open Trial:
The courts in India are free. These conduct open trials. The accused is
always given full opportunity to defend himself. The state provides free
legal aid to the poor and needy.
10. Judicial Activism:
Indian Judicial System has been becoming more and more active. The
Supreme Court has been coming out with judicial decisions and directives
aimed at active protection of public interest and human rights. Judiciary
has been giving directives to public officials for ensuring a better security
for the rights of the public. The Public Interest Litigation system has been
picking up. The system of Lok Adalats has also taken a proper shape and
health.
11. Public Interest Litigation System:
Under this system the courts of law in India can initiate and enforce action
for securing any significant public or general interest which is being
adversely affected or is likely to be so by the action of any agency, public
or private. Under it any citizen or a group or a voluntary organisation, or
even a court herself, can bring to notice any case demanding action for
protecting and satisfying a public interest.
It provides for an easy, simple, speedier and less expensive system of
providing judicial relief to the aggrieved public. With all these features, the
Indian Judicial System is an independent, impartial, free, powerful and
efficient judicial system.

Position of the Supreme Court of India!

The Supreme Court of India is the federal court, a final court of appeal and
a guardian of the Constitution. The law declared by it, in the exercise of
any of its jurisdiction under the Constitution is binding on all other courts
within the territory of India. The Supreme Court has the powers to issue
writs to enforce fundamental rights.
The jurisdiction of the Supreme Court may be classified under three
heads. Original Jurisdiction means that no other court has the power to
entertain a suit on these matters. These matters are confined to disputes
between the Government of India and any other State or States of the
Union or between two or more States.
Writ Jurisdiction refers to the Supreme Court entertaining an application
(under Art. 32) for the issue of constitutional writ for the enforcement of
Fundamental Rights. The aggrieved party need not come through a High
Court by way of appeal.
By issuing a writ of Habeas Corpus the court can get a person released if it
has been kept under unlawful custody even by the State. The writ of
Prohibition gives an order to a subordinate court to stop proceedings in a
case where in the opinion of the Supreme Court/the trial court has
exceeded its jurisdiction.
The writ of Certiorari has the effect of quashing an order already passed
by a judicial or a quasi-judicial authority. The writ of Mandamus is in the
nature of a command to a subordinate court that may have refused to
exercise its jurisdiction. Quo-Warranto prevents an unlawful claimant from
holding a superior public office.
Appellate Jurisdiction of the Supreme Court may be divided under
the following sub-heads:
(i) cases involving interpretation of the constitution
(ii) civil cases
(iii) Criminal cases.

An appeal against a judgment in a criminal proceeding of a High Court can


be made in the Supreme Court where the High Court has on appeal
reversed an order of acquittal of an accused person and sentenced him to
death.
Advisory Jurisdiction involves giving its opinion on any question of law or
fact of public importance as may be referred to it for consideration by the
President. The opinion given by the Supreme Court is not binding on the
government.
The Supreme Court is responsible for ensuring that the High Courts and
the Subordinate courts function efficiently and effectively. The decisions
and decrees issued by the Supreme Court become Case law and are
referred to by lawyers in their pleadings in similar situations. Thus the
Supreme Court also functions as a Court of Record.