Judicial Review in India

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 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, 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.
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.
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 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 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 judge’s 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.
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.
The Supreme Court is the highest court of appeal in India. Let us discuss the
following aspects regarding the Supreme Court:

Composition:
It consists of the Chief Justice and not more than 25 judges. The President may
appoint an adhoc
Judge at the request of the Chief Justice.
Appointment:
Every judge of the Supreme Court is appointed by the President of India after
consultation with such judges of the Supreme Court and the High Courts of States
as the President may deem necessary for the purpose. However, in the matter of
appointment of a judge other than the Chief Justice, consultation of the Chief
Justice of India by the President is obligatory.

Qualifications:
To be a judge of the Supreme Court, one must be
 a citizen of India
 has been a judge of a High Court at least for five years; or
 has been an advocate of a High Court for at least ten years
 is a distinguished jurist in the opinion of the President.
Tenure:
A judge of the Supreme Court retires at the age of 65 years. He may also resign
from his office.
Removal:
A judge of the Supreme Court can also be removed by the President from his
position only on the ground of proved misbehaviour or incapacity if a resolution in
this regard is passed by the Parliament supported by two-thirds of the members
present and voting in each Hose and the majority of the total membership of each
House.
Powers and Functions :
The jurisdiction of the Supreme Court may be categorised as original, appellate
and advisory.
· Original Jurisdiction: Under this jurisdiction, the Supreme Court can settle
disputes (a) between the Centre and one or more States; (b) between the Centre
and any State or States on the one side and one or more other States on the
other; or (c) between two or more States.
· Appellate jurisdiction : Under this jurisdiction, the Supreme Court can hear
appeals on the following cases:

(a) Constitutional Cases —— An appeal can be made to the Supreme Court in

cases which relate to the interpretation of the Constitution.
(b) Civil Cases —— In a civil cases also, an appeal can be made to the Supreme
Court against a decision of a High court. In these cases, the High Court must
certify that the case involves a substantial question of law as to the interpretation
of the Constitution.
(c) Criminal Cases —— An appeal can be made in the Supreme Court against any
judgement, final order or sentence given by a High Court. In criminal matters,
ordinarily, the High Courts are the final courts of appeal. But the Supreme Court
has been given the special power by the Parliament to hear appeal against the
decisions of the High Courts in criminal matters.
· Advisory Jurisdiction : The Supreme Court has some advisory powers also. The
President of India can seek the opinion of the Court if there is a question of law or
fact where the interpretation of the Constitution is involved. The Supreme Court
may give its opinion on the President’s question but it is not binding on any party.
· Court of Records : The Supreme Court also acts as the Court of Records. The
judgements of the Supreme Court are recorded and considered as authoritative
and serves as cases, laws and proceedings. These records have great evidentiary
value.
· Directions, orders or writs: The Supreme Court is regarded as the protector of
the Fundamental Rights of the citizens. For this purpose, it has been given the
power of issuing certain writs like that of habeas corpus, mandamus, prohibition,
quo warranto and certiorari. It can also issue orders and directions.
· Contempt of Court: The Supreme Court can punish any one who is found to be
indulged in contempt of the court. Contempt of court includes criticism of a
judgement of the court, criticism of judges and the court, passing derogatory
remarks against the court, refusing to abide by the decisions of the court, etc.
· Guardian of the Constitution: The Supreme Court of India is regarded as the
guardian of the Constitution. It is the Supreme or final interpreter of the
Constitution. The interpretation of the Constitution given by the Supreme Court is
to be respected.
· Judicial Review: The Supreme Court has been given the power to decide
whether a law passed by the Parliament or the State legislatures and the excutive
decisions taken by the Central or State government is constitutional or not. If such
a law or executive decision is found unconstitutional, then it can declare it as
invalid.
· Public Interest Litigation: Even if the victim or affected parties do not file cases,
any one from the general public, not involved in the case, may file litigation (law
suit), if it is in the general public interest. It is the privilege of the Court to
entertain or not to entertain the application for Public Interest Litigation.