Judicial Review

Significance of Judicial Review

• The Supreme Court has emphasized the importance of judicial review.
• The Constitution is supreme, and laws must conform to it.
• The judiciary decides the constitutionality of enactments.
• The Constitution has express provisions for judicial review, especially regarding Fundamental Rights.
• Courts protect Fundamental Rights.
• The Constitution is the supreme law, with no branch of government above it.
• All organs of government derive authority from the Constitution and must act within its limits.
• The Supreme Court is the ultimate interpreter of the Constitution and determines the powers and limits of each branch of government.
• Judges pronounce on the validity of laws.
• Judicial review protects Fundamental Rights; without it, rights are meaningless.
• The Supreme Court upholds the Constitution and interprets it.
• The Court maintains the balance of power between the legislature and executive.
• Judicial review maintains federalism, protects Fundamental Rights and freedoms, and promotes a healthy nationalism.
• It helps to adjust the Constitution to changing needs.

Constitutional Provisions for Judicial Review

• The Constitution does not explicitly use the term "Judicial Review".
• Several articles implicitly grant the power of judicial review to the Supreme Court and High Courts.
• Article 13: Laws inconsistent with or in derogation of Fundamental Rights are void.
• Article 32: Guarantees the right to move the Supreme Court for enforcement of Fundamental Rights; empowers the Court to issue writs.
• Article 131: Provides for the original jurisdiction of the Supreme Court in center-state and inter-state disputes.
• Article 132: Provides for the appellate jurisdiction of the Supreme Court in constitutional cases.
• Article 133: Provides for the appellate jurisdiction of the Supreme Court in civil cases.
• Article 134: Provides for the appellate jurisdiction of the Supreme Court in criminal cases.
• Article 134-A: Deals with the certificate for appeal to the Supreme Court from High Courts.
• Article 135: Empowers the Supreme Court to exercise the jurisdiction and powers of the Federal Court under pre-constitution law.
• Article 136: Authorizes the Supreme Court to grant special leave to appeal from any court or tribunal (except military tribunals).
• Article 143: Authorizes the President to seek the Supreme Court's opinion on questions of law or fact, and on pre-constitution legal matters.
• Article 226: Empowers High Courts to issue directions or writs for enforcement of Fundamental Rights and for any other purpose.
• Article 227: Vests in High Courts the power of superintendence over all courts and tribunals within their territorial jurisdictions (except military courts).
• Article 245: Deals with the territorial extent of laws made by Parliament and State Legislatures.
• Article 246: Deals with the subject matter of laws made by Parliament and State Legislatures (Union, State, and Concurrent Lists).
• Articles 251 & 254: In case of conflict between central and state law, the central law prevails, and the state law is void.
• Article 372: Deals with the continuance in force of pre-constitution laws.

Scope of Judicial Review

• The constitutional validity of laws or executive orders can be challenged on three grounds:
  • Infringement of Fundamental Rights (Part III)
  • Lack of competence of the authority framing the law/order
  • Repugnancy to constitutional provisions
• Judicial review in India is narrower than in the USA.
• The American Constitution has "due process of law," while the Indian Constitution has "procedure established by law."
• "Due process of law" gives the Supreme Court wider scope to protect citizens' rights.
• The Indian Supreme Court examines only the substantive question of whether a law is within the powers of the authority concerned.
• It does not examine the reasonableness, suitability, or policy implications.

Judicial Review of the Ninth Schedule

• Article 31B: Saves acts and regulations included in the Ninth Schedule from being challenged for contravening Fundamental Rights.
• The Ninth Schedule, along with Article 31B, was added by the 1st Constitutional Amendment Act of 1951.
• Originally, it contained 13 acts/regulations; currently, it contains 282.
• These acts/regulations relate to land reforms/abolition of the zamindari system (state legislatures) and other matters (Parliament).
• Kesavananda Bharati case (1973): The Supreme Court ruled that laws in the Ninth Schedule are open to challenge if they violate the basic structure of the Constitution.
• Waman Rao case (1980): Clarified that acts/regulations added to the Ninth Schedule after April 24, 1973, are valid only if they do not damage the basic structure.
• I.R. Coelho case (2007): Reaffirmed the above view; there can be no blanket immunity from judicial review.
• Judicial review is a 'basic feature' and cannot be taken away by placing a law under the Ninth Schedule.
• Laws placed under the Ninth Schedule after April 24, 1973, are open to challenge if they violate Fundamental Rights guaranteed under Articles 14, 15, 19, and 21 or the basic structure.
• Judgement Conclusion:
  1. A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine.
  2. The majority judgement in the Kesavanand Bharati Case read with Indira Gandhi case requires the validity of each new constitutional Amendment to be judged on its own merits.
  3. All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution.
  4. Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of constitutional adjudication.
  5. If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgement.
  6. Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge.