Concept of JUDICIAL REVIEW in INDIA

Author : Raj Shekhar of Delhi University

Judicial review in India is based on the assumption that constitution is  the Supreme Law of Land  and all the governmental organs which owe their origin to the constitution and derive their powers from its provision must function within the framework of the constitution and must not do anything  which is inconsistent with the provision of  Constitution. The power to scrutinize the validity or any action whether it is void or not is feature of Rule of law. Judicial Review is check and balance mechanism to maintain the separation of powers.

The two-principal basis of Judicial Review are-

1. Theory of Limited govt.
2. Supremacy of the constitution with the requirement that ordinary law must confirm to constitutional law.

Judicial Review is an example Judicial activism.  The Supreme Court of India formulated various Doctrines on basis of Judicial Review like Doctrine severability, Doctrine of Prospective overruling etc.

In India Judicial Review on three important dimensions

1. Judicial review of Constitutional amendments
2. Judicial review legislative actions
3. Judicial review of Administrative Actions

Objective: – To Upload the supremacy of the Constitutional Law and to protect the fundamental rights of the Citizens and also maintain federal equilibrium between Centre and states are main concern of objective of Judicial review in India.

U.S.A

The concept of Judicial Review basically originated in USA in historic landmark case Marbury v Madison in this case chief Justice Marshal propounded Judicial Review and held it is the duty of judge to annul any Law made by legislature which violates constitution but originally 

Lork Coke decision in Dr. Bonham v Cambridge university had rooted the scope of Judicial review first time 1610 in England. However, there is no express provision in US which deals with power of Judicial Review. If we compare the scope of Judicial review in America & India, we find that in US Judges apply Judicial Review in a very contentious manner. If according to court there is any particular law and the philosophy of it is not liked by Judges then also court may reject the law. But in India court rejects the law only on the basis of unconstitutionality.

UNITED KINGDOM

But in U.K there is no written constituton. Earlier there was no scope of Judicial Review in U.K .The Principle of PARLIAMENTARY SOVERENIGTY dominted to constitutional democracy in U.K.  There is  parliament Supremacy in UK  which incorporate the will of the People and court can not scrutinize thr actions of parliament. In UK parliament prevents prevents the scope of judicial review to primary legislation except in cases related to human rights and individual freedom, therefore primary legislation is outside the purview of judicial review.

But as regards to secondary legislation(legislation, Regulation, Act of Minister) are subject to judicial review. Court can review the action of Administration and executive action in UK. Judicial Review in UK is basically on procedural grounds which is largely related to administrative actions.

INDIA

Supremacy of the laws is the spirit of the INDIAN constitution. In India the Doctrine of Judicial review is the basic feature the constitution. IT is the concept of Rule of Law and it Is the touchstone of constitution of INDIA . though there is no express provision for Judicial review in the Constitution of India but it is integral part of our constitutional system and without it there will be no govt of laws and Rule of Law would become a mockery delusion and a promise of Futility. In India, Judicial Review is power of Court to set up an effective system of check and balance between legislature and executive various provision in the Indian constitution explicitly provides for power of Judicial review to the Supreme court and High Court such as Article 13, 32,131-136, 141,143,226,227,245,246,372

Origin of Judicial Review in India

The Doctrine of Judicial Review of US was accepted by all the civilized countries of the world

As far as first case of judicial review in India is concerned it is  EMPROR v BURAH this was the first case which interpreted and originated the concept of judicial review in India in this case it was held  that aggrieved party had right` to challenge the constitunality of a legislative act enacted by Governor General council in excess of power given to him by the imperial parliament in the case the High court and Privy Council  reviewed  that Indian courts had power of judicial review with some limitations.

Doctrines formulated by courts through Judicial Interpretations

Article 13 of Constitution incorporates Judicial Review of Post Constitution and Pre constitution laws. This Article inherited most important Doctrine of Judicial Review like Doctrine of Severability, Doctrine of Eclipse. Article 13 provides for Judicial review of all the legislation in India post as well as future. This power has been conferred on the HC & SC under article 226 & 32 which can declare a law unconstitutional if it is inconstient with any provision of part III of constitution. Some other doctrines are formulated by courts using the power of judicial review are Doctrine of Pith and Substance, Doctrine of Colourable Legislation.

Doctrine of Prospective overruling is the doctrine to interpret the judicial decisions. These doctrines are enumerated through interpretation of constitution by Supreme Court.

Judicial Review in India is based on Various dimension like-

1.Judicial Review of Legislative Action

2. Judicial Review of Executive action

3. Judicial Review of judicial Acts

Judicial Review do all these things which include-

1. Courts sees the law made by legislature, Executive and check the validity of Law
2. It Decides the validity of Law passed by Parliament
3. The law can be struck down in part or whole if it violates any provision of Constitution

Following are the Doctrines-

Doctrine of Severability-Article 13 of the Indian Constitution incorporates this doctrine. IN Article 13 the word “The extent of Contravention” are the basis of doctrine of severability.  In the case of A.K Gopalan Vs State of Madras, AIR 1950 SC 27, section 14 of Prevention of Detection Act was found to be violative of Article 1. In this the court applied this doctrine and held whole Act need not to be declared void only the offending provision should be declared void.

Doctrine of Eclipse – This doctrine applied in Bhikaji Narain Dhakras  Vs State of MP ,(1955 SC 781)held this doctrine applies to a case of pre-constitution statute. 13(1) of Constitution of India, all pre-constitution statues which are inconsistent to part 3 of the constitution become unenforceable and unconstitutional after the enactment of the constitution. Thus, when such statutes were enacted they were fully valid and operative. The become eclipse due to Article 13 once constitutional ban removed it becomes fully operative

Doctrine of Prospective overruling– In the case of Golaknath Vs State of Punjab,AIR 1967 SC 1643 this doctrine was propounded and it was held that judgement will not have effect on past decision but apply on future decisions.

Judicial review of constitutional amendment

Parliament has power to amend constitution then question arose can it amend the Fundamental Right in the case of Shankari Prasad Vs Union of India,AIR 1951 SC 458 Sajjan Singh Vs State of Rajasthan,AIR 1965 SC 845 held parliament can amend any provision of the Constitution  but in the case of Golakanath Vs State of Punjab supreme court held parliament can not amend fundamental right. The finally matter was decided by Keshawanand Bharti case held it can amend any provision of constitution but sub to Basic Structure of constitution.

Judicial review of Parliamentry & legislative actions-

Parliament by exercising legislative power passed an enactment of which took away the power of Judicial Review from High Court S.P Sampat Kumar Vs UNION of  India,AIR 1987 SC 386 – The hon’ble court held that Judicial review is an essential feature Constitution can be taken away only if an alternative effective institutional mechanism is provided.

Judicial Review of administrative actions

The court does not interfere with discretionary power exercised by the administrative authority. But it does not mean administrative authority will exercise power arbitrarily. In Ajay Hasia vs khalid Mujib (1981) 1SCC 722, The regional Engineer college made admission on the ground that it was arbitrary and unreasonable because high percentage marks were allocated for oral test and candidates were interview for very short time duration. The court struck down the rule prescribing high percentage of oral test because allocation of one third of total marks for total interview was plainly arbitrary and unreasonable and violative of Article 14 of Constitution.

  Court will interfere with the discretionary powers exercised by the administration on two grounds- 

1. Failure to exercise discretion
2. Abuse of Discretion

 Following are the other grounds

    1-Illeglity

    2-Irrationality

    3-Proportionaity

    4- Unreasonableness

Limitation of Judicial Review-

These has held that there are certain Self-imposed restrictions on the power of Judicial review the court will not decide on political questions. Judicial review can be executed by provision in constitution. Article 13B provides that Acts includes in the 9^th Schedule to the constitution can not be challenged on the ground that they are violative of FR conferred by part III of Constitution. In I.R Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, the Supreme Court ruled that there could not be any blanket immunity from judicial review of laws included in the Ninth Schedule. The court held that judicial review is a ‘basic feature’ of the constitution and it could not be taken away by putting a law under the Ninth Schedule. It said that the laws placed under the Ninth Schedule after April 24, 1973, are open to challenge in court if they violated Fundamental Rights guaranteed under the Articles 14, 15, 19 and 21 or the ‘basic structure’ of the Constitution. It was on April 24, 1973, that the Supreme Court first propounded the doctrine of ‘basic structure’ or ‘basic features’ of the constitution in its landmark verdict in the Kesavananda Bharati case

 Conclusion

The Supreme court of India since the era of AK Gopalan Case to the historic judgement of IR Coelho Case magnified the concept of Judicial Review in the present scenario supreme court plays a very crucial role to interpret the constitutional provisions and now the concept of Judicial Review became fundamental feature of Constitutional provision jurisprudence. In the recent judgement of Madras Bar Association vs Union of India, the supreme court scrutinized the provision of Companies Act and declared some provision ultra vires because technical experts were given preference over judicial member which violates the basic structure of Constitution of Indian