ACKNOWLEDGEMENT

The project is an outcome of the guidance of and support of some people who if we don’t
acknowledge we would be committing a sin.
 Firstly, we would like to thank the almighty
without whose blessings; this project could not have been completed.

We convey our heartfelt thanks to Assistant Professor of Law, Mr. Ashit Kumar Srivastava,
Mr. Subhaprad Mohanty and Dr. Yogesh Pratap Singh (Registrar) whose constant
encouragement and being constantly available to clear any doubts regarding the subject matter,
showed us the right direction to go ahead in.

We would like to thank the librarian and other staff for providing us the required sources and
materials without which this project would have been just a dream.
 We would like to
acknowledge our seniors and friends for their enthusiasm and belief in us which encouraged
us to strive forward.

Lastly, we would like to thank our parents without whose constant support and being by our
side by thick and thin, this project could not have been completed.
Table of Contents
INTRODUCTION............................................................................................... 4
JUDICIAL REVIEW IN INDIA .................................................................... 5
1) Judicial review of Constitutional amendments ...................................... 5
2) Judicial review of state legislatures, legislation of parliament and
subordinate legislation .................................................................................... 6
3) Judicial review of managerial action of the U.O.I. and government of
state and authorities within the definition of state ....................................... 6
EXTENT OF JUDICIAL REVIEW IN INDIA ............................................... 7
CONCLUSION……………………………………………………8
 INTRODUCTION

As per Redform, “Judicial review is the power of a court to enquire whether

a law, executive order or other official action conflicts with written constitution and, if the
court concludes that it does, declare it unconstitutional and void.” 1 As per the Black Law’s
Dictionary, judicial review is “a philosophy of judicial decision-making whereby judges allow
their personal views about public policy, among other factors, to guide their decisions, usually
with the suggestion that adherents of this philosophy tend to find constitutional violations and
are willing to ignore precedent.”
The Dictionary of Political Science,2 defines Judicial Review as “The power of the court to
review statutes or administrative acts and determine their constitutionality, the examination of
Federal and State Legislative Statutes and the acts of executive officials by the courts to
determine their validity according to written Constitution”.
The Judiciary plays a very important role as a protector of the constitutional values that the
founding fathers have given us.3 Judicial review is an extraordinary power with the judges. It
is the foundation of Constitutionalism, which implies limited government.4 It is advocated on
a consolidated maintaining of the standards of rule of law and separation of powers.5 It consists
the capability of a Court to hold unlawful and unenforceable any law or request dependent on
such law or some other activity by a public authority which is conflicting or is not consistent
with the basic law of land. It is an essential element exquisite system of balances and checks
which with principles of separation of powers establish the structure of the republican form of
government. It also insures that its extensive powers are put to use only for the welfare of the
people for which it serves. The fundamental objective of the judicial review is to regulate the
legislative acts.

1 Laxmi Kanth M, Indian Polity for Civil Service

2
Joseph Dunner, 1965, p. 285.
3
Dr. Justice A.S. Anand, Justice N.D. Krshna Rao Memorial Lecture on protection of Human
Rights – Judicial Obligation or Judicial Activism, (1997) 7SCC(Jour) 11.
4
S.S. Dash, ‘The Constitution of India, A Comparative Study’ Chaithanya Publishing House,
Allahabad, 1960, p334.
5
Jasmine Alex, ‘Ninth Schedule and Principles of Constitutionality in the light of Coelho’s
case, Published in CULR, (2007), p.262.
 JUDICIAL REVIEW IN INDIA

In post-free India, the consideration of express arrangements for 'judicial review' was vital so
as to offer impact to the individual and parties rights ensured in the content of the Constitution.
Widely speaking, judicial review in India contains three viewpoints: judicial review of
authoritative activity, judicial review of judicial choices and judicial review of administrative
activity. The judges of the higher courts have been depended with the undertaking of
maintaining the Constitution and to this end, have been given the power to clarify it. It is they
who need to guarantee that the stability of power imagined by the Constitution is kept up and
that the law-making body and the executive don't, in the release of capacities, transgress
constitutional limitations.6 The Indian Constitution is different from that in U.S.A. The Indian
Constitution has defined the doctrine of judicial review in various articles such as 131 to 136,
227, 143, 32, 13. The main difference between the U.S. and Indian legal systems is that in India
it is more procedural and in U.S. it is more substantive.
Under the Indian Constitution, Judicial Review can be classified under 3 heads7: -

1) Judicial review of Constitutional amendments: - The topic has been the subject
matter in many cases held by the Supreme Court. Some of them are: -
i. The case of Sajjan Singh8
ii. The I.C. Golaknath case9
iii. The case of Shankari Prasad10
iv. The Kesavananda Bharti case11
v. The Indira Gandhi case12
vi. The Sanjeev Coke case13
vii. The Minerva Mills case14

6
L.Chandra Kumar v Union of India, (1997) 3SCC 261.
7
Justice Syed Shah Mohammed Quadri, Judicial Review of Adminstrative Action, (2001) 6
SCC (Jour) 1.
8
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
9
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
10
Shankari Prasad Singh v. Union of India, AIR 1951 SC 458.
11
Kesavananda Bharati v. Union of India, AIR 1973 SC 1461.
12
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
13
Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147.
14
Minerva Mills v. Union of India, AIR 1980 SC 1789.
 2) Judicial review of state legislatures, legislation of parliament and subordinate
legislation: - In the following category, the judicial review is in respect legislative
capability and violation of fundamental rights.

3) Judicial review of managerial action of the U.O.I. and government of state and
authorities within the definition of state: - It is important to differentiate 'judicial
review' and 'judicial control'. The term judicial review has a prohibitive implication
when contrasted with the term judicial control. Judicial review is 'supervisory', instead
of 'remedial', in nature. The writ system in Indian Constitution which functions under
article 32 and article 226 denotes judicial review. The term judicial control is a broader
term. It is such a broader that judicial review is included within it. Judicial control
includes all techniques through which an individual can look for help again the
Administration through the methods of the courts, for example, bid, writs, affirmation,
directive, harms statutory cures against the Administration.15 All power is fit for
maltreatment, and that the ability to keep the maltreatment is the basic analysis of
constructive judicial review.16

Under the customary hypothesis, courtrooms used to control presence and extend of right
power yet not in the manner of activity thereof. That position was, in any case, significantly
changed after the decision in Council of Civil Service Unions V. Minister for Civil Service,17
wherein it was accentuated that the reviewability of optional power must rely on the topic and
not upon its source. The degree and level of judicial review and reasonable region may change
from case to case.18
In the meantime, be that as it may, the intensity of judicial review isn't unfit or boundless. In
the event that the courts were to expect purview to review authoritative acts which are 'out of
line' as they would see it (on benefits), the courts would accept locale to do the very thing
which is to be finished by organization. On the off chance that judicial review was to trespass

15
M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on
the Subject containing.
16
Wade, Administrative Law, (1994), pp. 39-41
17
(1984) 3 All ER 935: (1984) 3 WLR 1174: (1985) AC 374.
18
Craig, Administrative Law, (1993), p. 291.
on the benefits of the activity of regulatory power, it would put its very own authenticity in
danger.19
The following case Trop v. Dulles20 lays down right legal position: -
“All power is, in Madison’s Phrase ‘of an encroaching nature’. Judicial Power is not immune
against this human weakness. It also must be on guard against encroaching beyond its proper
bounds, and not the less so since the only restraint upon it is self restraint.”21

EXTENT OF JUDICIAL REVIEW IN INDIA

From 1950 to 1975, the Indian Supreme Court ruled that more than one hundred federal and
state case Laws, constituted unconstitutional. The judiciary in the constitutional system, made
a very important position. Indian Supreme court on a series of allegations of violation of basic
human rights under the Constitution of India conducted a judicial review of cases. The Supreme
Court’s position is that any attempt to amend the Constitution related to impact of civil rights
legislation or regulations are subject to subject to judicial review. India has also restricted
judicial review of executive and legislative powers to play a role. Judicial review of legislation
from the early review extends to all acts of government or administration. It can be said that in
addition to specific case, the Court exercise their restraint of judicial power, judicial review
has almost no borders.

 Judicial Review of political issues: In the early practice of judicial review, Supreme
Court of India was that if the case involved political issues, does not apply to judicial
review. But then this position has changed slowly, in Keshavananda Bharathi22 case,
the Court noted that “involves tampering with the Constitution judicial review of cases
may involve political issues, but only the court has the power to judge cases. interpret
the Constitution’s powers should be attributed to the State jurisdiction.”

19 Ibid.
20
(1985) 35 US 86.
21
“The Purpose and Scope of Judicial Review” in M Taggart, Judicial Review of
Administrative Action in the 1980s (1986, OUP) 18.
22 AIR 1973 SC 1461.
 The Court’s position in the later case in a series of further specific, as in S.R. Bommai23
case, the court decision that “The state Governor, the President formed the basis of his
political views may be based on judgments, it is not appropriate for judicial review. If
Justice will fall into a complex political disputes, which the court should be avoided.
So, the court can not forbid the President to exercise the powers conferred on him by
the Constitution, unless the evil abuse of power, but the court also noted judicial review
although it can not review the President’s subjective judgments, but the president may
review the basis on which to make decisions.” From these precedents it can be seen that
the Indian courts in dealing with the basic legal and political position of the judiciary
in finding significant matters involving politics should be careful to play its role of
judicial review, and some restraint in handling cases, to avoid use of judicial jeopardize
the constitutional review powers the legislative and executive powers, but the judiciary
but also to minimize the abuse of presidential power judicial review and supervision
should be ultra vires the right balance.

CONCLUSION

After reading the various aspects of this case researcher had concluded that the petitions
contended that the application of land ceiling laws violated the basic structure of the
Constitution. In effect the Review bench was to decide whether or not the basic structure
doctrine restricted Parliament's power to amend the Constitution.24
The basic structure may be said to consist of the following features:

1. Supremacy of the Constitution;

2. Republican and Democratic form of Government;
3. Secular character of the Constitution;
4. Separation of powers between the legislature, the executive and the
judiciary;
5. Federal character of the Constitution. 293. The above structure is built
on the basic foundation, i.e., the dignity and freedom of the individual.

23
1994 AIR 1918, 1994 SCC (3), 1, JT 1994 (2)215, 1994 SCALE (2)37
24
M P JAIN, INDIAN CONSTITUTIONAL LAW, 1355 (6th ed. 2018).
 This is of supreme importance. This cannot by any form of amendment
be destroyed. "25
One certainty that emerged out of this tussle between Parliament and the judiciary is that all
laws and constitutional amendments are now subject to judicial review and laws that
transgress the basic structure are likely to be struck down by the Supreme Court. In essence
Parliament's power to amend the Constitution is not absolute and the Supreme Court is the
final arbiter over and interpreter of all constitutional amendments. It may be said that the final
word on the issue of the basic structure of the Constitution has not been pronounced by the
Supreme Court- a scenario that is unlikely to change in the near future. While the idea that
there is such a thing as a basic structure to the Constitution is well established its contents
cannot be completely determined with any measure of finality until a judgement of the Supreme
Court spells it out. The Kesavananda Bharati judgement is likely to be the key to interpreting
and challenging any new legislation or constitutional amendment, imposing the State's
reservation quotas on private unaided colleges, to determine if it violates the basic structure of
the constitution or not.

25 Ibid.