- The Doctrine of Judicial Review originated in USA.
- It comes under various articles of the Indian Constitution.
- Judicial Review plays a key role in upholding the supremacy of the Constitution, preventing misuse of power by the Legislature and Executive, maintaining a favourable equilibrium between the Centre and the States, and protecting basic principles of the Constitution such as the fundamental rights of the citizen, and independence of the judiciary.
- It is not a statutory provision and it is only applicable to public bodies.
Judicial Review is the power held by the Supreme Court and High Courts in India to examine and ensure the constitutionality of any law passed by the legislature. This also extends to executive orders passed by the Centre or States. If any such order or action is found to be in violation of the Constitution, it would be invalidated for exceeding authority or jurisdiction. The doctrine of Judicial Review originated in the USA, in the case of Marbury vs Madison (1803)[5 U.S. 137].
In India it plays a key role in upholding the supremacy of the Constitution, preventing misuse of power by the Legislature and Executive, maintaining a favourable equilibrium between the Centre and the States, and protecting basic principles of the Constitution such as the fundamental rights of the citizen, and independence of the judiciary. The doctrine was in news recently when the Supreme Court passed an order permitting to conduct of a floor test in the Maharashtra Assembly and the question was raised whether the Court can review the Governor’s decision. Senior Adv. Dr A. M Singhvi contended to this that the Court can use its power of judicial review to decide upon this. The recent judgement passed by the US Supreme Court, regarding abortion laws that overturned the decision in Roe vs Wade (1973)[410 U.S. 113] is also a recent instance of the use of judicial review.
Provisions regarding Judicial Review
It is not one single article in the Constitution that encompasses the doctrine of Judicial Review, but several provisions that come under different articles.
- Article 13 declares that any law that is in contradiction to the provisions of Fundamental Rights shall be null and void.
- Article 32 vests the Supreme Court with the power to issue writs in order to protect the Fundamental Rights of citizens.
- Article 131-136 provides for the power of the Supreme Court to interpret the Constitutional provisions, which would be decisive in disputes between individuals and the State, and between States and the Union.
- Article 143 provides for advisory jurisdiction of the Supreme Court which is the power to advise on any law or public issue if such advice is sought by the President.
- Article 226 provides the High Courts with the power of judicial review and to issue directions or orders or writs for the enforcement of a fundamental right or for any other purposes.
- Article 245 states that the powers of both parliament and state legislatures are to be in accordance with the Constitution. Any legislation can be challenged before a court of law if found that it infringes any of the fundamental rights.
- Articles 251 and 254 state that in case of any dispute between Centre and State regarding any particular law, the Central law prevails and the State law shall remain void.
Features of Judicial Review
The doctrine of Judicial Review differs in characteristics according to different legal systems. In India, the most important features of Judicial Review are as follows:
Exercised by Supreme Court and High Courts: The powers of judicial review regarding fundamental rights are vested with both Supreme Court and High Courts in different states, according to Article 32 and 226 respectively. However, in case of an appeal, the decision of the Supreme Court stands.
- Encompassing both Central and State laws: The power of judicial review prevails over legislations brought about by both Central and State governments. It extends over all ordinances, amendments, orders and by-laws brought about by either government.
- Not Suo motu: The action of bringing legislation or provision under scrutiny by the power of judicial review is not Suo motu, that is such decisions can be taken by Supreme Court or High Court only if they are challenged before the court, or any such question as to their constitutional validity comes forth as a part of court proceedings.
- In accordance with the procedure established by law: Any law brought under judicial review has to be proof of its constitutional validity to become valid. Powers of Judicial Review are subject to provisions of Article 21 and only if any law is in contradiction to such procedures can it be declared null and void.
Landmark cases of Judicial Review
Sankari Prasad vs Union of India (1951)
In Sankari Prasad vs. Union of India [1951 AIR 458], the First Amendment Act of 1951 was challenged on the grounds that the Fundamental Right to Property was infringed by its provisions. The Supreme Court denied such an argument and stated that this amendment does not stand, since fundamental rights under Article 13 cannot be curtailed.
Sajjan Singh case (1965)
In Sajjan Singh vs. State of Rajasthan [1965 AIR 845], the 17th Amendment Act of 1964 was in question. The Court overturned its own decision in the Shankari Prasad case and held that the constitutional amendments made under Article 368 were not within the ambit of judicial review by the courts.
Golak Nath case (1967)
In I. C. Golaknath & Ors vs. State Of Punjab &Anrs. [1967 AIR 1643], three constitutional amendments were challenged, namely- the first (1951), the fourth (1955), and the seventeenth (1964). The Hon’ble Supreme Court asserted that the Parliament had no authority under Article 368 to bring about changes in the Constitution or to take away or restrict the fundamental rights of the people.
Keshavananda Bharati case (1973)
In Keshavananda Bharti vs. State of Kerala [AIR 1973 SC 1461], the 24th (1971) and 25th (1971) constitutional amendments were challenged. A 13-bench judge was formed to attend the case and observed that Article 368 of the Constitution provides the President with the power to bring about changes in the Constitution. The Court differentiated between ordinary laws and constitutional amendments and also stated that the basic structure of the Constitution cannot be amended by the Parliament.
Indira Gandhi case (1975)
In Indira Nehru Gandhi vs. Shri Raj Narain& Anr [1975 AIR 865], the then Prime Minister of India- Indira Gandhi was held guilty of electoral malpractices by the Supreme Court.
Minerva Mills case (1980)
In Minerva Mills Ltd. vs. Union of India [AIR 1980 SC 1789], clauses (4) and (5) of Article 368, which were inserted by the 42nd Amendment (1976), were struck down by the Apex Court on the grounds that these clauses were in contradiction to the basic structure of the Constitution.
Judicial Review is a part of the basic structure of the Constitution. It cannot be overridden by any authority. In a society where law plays a crucial role, any kind of ignorance towards justice amounts to be arbitrary. Therefore, judicial review is important in keeping a check on the power of each governmental organ. However, it is equally important to ensure that the judiciary does not cross the limits or disrupt the federal nature of our nation, by interrupting the functions of the Executive and Legislature.