Judicial Review
MOHIT BANSAL
Judicial Review
The doctrine of judicial review originated and developed in the USA.
It was propounded for the first time in the famous case of Marbury versus
Madison (1803) by John Marshall,the then chief justice of the American
Supreme Court.
Marbury v. Madison, legal case in which, on February 24, 1803, the U.S.
Supreme Court first declared an act of Congress unconstitutional, thus
establishing the doctrine of judicial review
In India, the Constitution itself confers the power of judicial review on the
judiciary (both the Supreme Courtas well as High Courts).
Further, the Supreme Court has declared the power of judicial review as a basic
feature of the Constitution or an element of the basic structure of the
Constitution.
Hence,the power of judicial review cannot be curtailed or excluded evenby a
constitutional amendment.
MEANING OF JUDICIAL REVIEW
Judicial review is the power of the judiciary to examine the constitutionality of
legislative enactments and executive orders of both the Central and State
governments.
On examination, if they are found to be violative of the Constitution (ultra
vires), they can be declared as illegal, unconstitutional and invalid (null and
void) by the judiciary.
Consequently, they cannot be enforced by the Government.
Example
NJAC
CHANDRA KUMAR CASE
Categories
1. Judicial review of constitutional amendments.
In 2015, the Supreme Court declared both the 99th Constitutional
Amendment, 2014 and the National Judicial Appointments Commission (NJAC)
Act, 2014 as unconstitutional and null and void.
2. Judicial review of legislation of the Parliament and
State Legislatures and subordinate legislations.
Sabrimala judgement
3. Judicial review of administrative action of the
Union and State and authorities under the state.
Cryptocurrency order
IMPORTANCE OF
JUDICIAL REVIEW
• To uphold the principle of the supremacy of the
Constitution.
“The Constitution is supreme lex, the permanent law of the land, and there is
no branch of government above it. Every organ of government, be it the
executive or the legislature or the judiciary, derives its authority from the
Constitution and it has to act within the limits of its authority.
EXAMPLE
TRIBUNALS ACT
This Court is the ultimate interpreter of the Constitution and to this Court is
assigned the delicate task of determining what is the power conferred on each
branch of government, whether it is limited, and if so, what are the limits
and whether any action of that branch transgresses such limits”.
KESHWANANDA BHARTI CASE
It is they who have to ensure that the balance of power envisaged by the
Constitution is maintained and that the legislature and the executive do not,
in the discharge of their functions, transgress constitutional limitations”
3 JUDGES CASE
(b) To maintain federal equilibrium (balance between the Centre and the
states).
Highlights of the Government of NCT of Delhi v.
Union of India018 Judgement
Status of Delhi under the ConstitutioN
Administration of Union Territory under Article 239(1) is different from Article
239AA which provides for an elected Legislature.
The court held that Parliament can legislate for Delhi on any matter in the State
List and the Concurrent List but the executive power in relation to Delhi except
the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the state government headed
by the Chief Minister.
It also held that the executive power of the Union does not extend to any of the
matters which come within the jurisdiction of the Delhi Assembly.
LG to act on 'aid and advice' of the Council of Ministers
The court held that for establishing a democratic and representative form of
government for NCT of Delhi, Government of Delhi that enjoys the confidence
of the people of Delhi should have the functional autonomy to legislate for the
NCT of Delhi.
(c) To protect the Fundamental Rights of the
citizens.
“It is the function of the Judges, may their duty, to pronounce upon the validity
of laws. If courts are totally deprived of that power, the Fundamental Rights
conferred on the people will become a mere adornment
A controlled Constitution will then become uncontrolled”
INTERNET AS FUNDAMENTAL RIGHT
WOMEN ENTRY IN TEMPLES HAJI ALI DARGAH
SCOPE OF JUDICIAL
REVIEW
The constitutional validity of a legislative enactment or an executive order can
be challenged in the Supreme Court or in the High Courts on the following three
grounds.
(a) it infringes the Fundamental Rights (Part III),
(b) it is outside the competence of the authority which has framed it, and
(c) it is repugnant to the constitutional provisions.
Scope of judicial review in India is narrower than what exists in the USA,
though the American Constitution does not explicitly mention the concept
of judicial review in any of its provisions.
This is because, the American Constitution provides for ‘due process of law’
against that of ‘procedure established by law’ which is contained in the Indian
Constitution.
CONSTITUTIONAL PROVISIONS FOR JUDICIAL
REVIEW
Though the phrase ‘Judicial Review’ has nowhere been used in the
Constitution, the provisions of several Articles explicitly confer the power of
judicial review on the Supreme Court and the High Courts.
These provisions are below:
1. Article 13 declares that all laws that are inconsistent with or in derogation of
the Fundamental Rights shall be null and void.
2. Article 32 guarantees the right to move the Supreme Court for the
enforcement of the Fundamental Rights and empowers the Supreme Court to
issue directions or orders or writs for that purpose.
3. Article 131 provides for the original jurisdiction of the Supreme Court in
centre-state and inter-state disputes.
4. Article 132 provides for the appellate jurisdiction of the Supreme Court in
constitutional cases.
5. Article 133 provides for the appellate jurisdiction of the Supreme Court in
civil cases.
6. Article 134 provides for the appellate jurisdiction of the Supreme Court in
criminal cases.
7. Article 134-A deals with the certificate for appeal to the Supreme Court
from the High Courts.
8. Article 135 empowers the Supreme Court to exercise the jurisdiction and
powers of the Federal Court under any preconstitution law.
9. Article 136 authorises the Supreme Court to grant special leave to appeal
from any court or tribunal (except military tribunal and court martial).
10. Article 143 authorises the President to seek the opinion of the Supreme
Court on any question of law or fact and on any pre-constitution legal matters.
11. Article 226 empowers the High Courts to issue directions or orders or writs
for the enforcement of the Fundamental Rights and for any other purpose.
12. Article 227 vests in the High Courts the power of superintendence over all
courts and tribunals within their respective territorial jurisdictions (except
military courts or tribunals).
13. Article 245 deals with the territorial extent of laws made by Parliament
and by the Legislatures of States.
14. Article 246 deals with the subject matter of laws made by Parliament and by
the Legislatures of States (i.e., Union List, State List and Concurrent List).
15. Articles 251 and 254 provide that in case of a conflict between the central
law and state law, the central law prevails over the state law and the state law
shall be void.
16. Article 372 deals with the continuance in force of the pre constitution laws.
JUDICIAL REVIEW OF THE NINTH SCHEDULE
Article 31B saves the acts and regulations included in the Ninth Schedule from
being challenged and invalidated on the ground of contravention of any of the
Fundamental Rights.
Article 31B along with the Ninth Schedule was added by the 1st
Constitutional Amendment Act of 1951.
Originally (in 1951), the Ninth Schedule contained only 13 acts and regulations
but at present (in 2016) their number is 282.
Of these, the acts and regulations of the state legislature deal with land
reforms and abolition of the zamindari system and that of the Parliament deal
with other matters.
However, in a significant judgement delivered in I.R. Coelho case (2007)
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.
Thank You
