Judicial Review means the power of judiciary to review the constitutionality of Acts of Government (Legislature or Executive) and declare whether it is void or not according to the Constitution of a country which is Supreme Land of Law.
The concept of Judicial Review was introduced in the case Marbury v Madison[i], which established the Doctrine of Judicial Review by saying that American courts have the power to strike down the actions, laws made by the government if that violates the Constitutional Provisions of American Constitution. Though there is no specific provision relating to Judicial Review in American Constitution but Chief Justice Marshall observed that “the constitution is either superior paramount law which cannot be changed by ordinary means or it is like all other acts which can be modified as per the will of the legislature. Assuredly all those who framed written constitutions of the countries behold them as forming the fundamental and uppermost law of the nation and therefore the theory of every such government must be that an act of the legislature repulsive to the constitution is completely void. It is emphatically the dominion and duty of the judiciary to interpret what the law is”.
CONSTITUTIONAL LIMITS ON JUDICIAL REVIEW
The Supreme Court enjoys a special position which gives it the power of reviewing the legislative enactments passed by Parliament and the State Legislatures. This power entrusts the court with a powerful means for judicial review. The provision given under Indian constitution, which provides for the judicial review of legislation are:-
- Article 13 declares that no one shall make any law or regulation in contravention with the part 3 of Indian constitution i.e. fundamental rights. If the court feels that any rule was inconsistence with the provision of the Constitution, it will be seen as violation of Fundamental rights and will be declared void.
- Articles 32 and 226 assign the roles of the protector and executor of fundamental rights to the Supreme Court and High Courts in case of any violation of such rights.
- Articles 131-136 gives Supreme court the power to resolve the matter between two States, or between union and states. But the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes binding to all courts of the land.
- Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution. The permissibility of any legislation can be challenged before the court of law on the grounds that the said legislature is not competent enough to pass a law on that particular subject matter; the law is in violation to the provisions of the Indian constitution; or the law infringes any fundamental rights protected by the court.
- Article 246 (3) ensures the Parliament has the powers to make any law in relation to in the least substance to at all portion of the Indian domain, which has not been involved in the List of the State or has been comprised in the list of the State of the Seventh Scheduled.
- Article 251 and 254 states that if any law by state legislature proved to be objectionable against the law passed by the Parliament either after or before the state regulation, the law made by the Parliament shall prevail.
- Article 372 (1) establishes the judicial review of the pre-constitution legislation.
The court is entrusted with the task of deciding whether the law made by legislature is in violation of the constitution and interpreting the provisions and objectives of the constitution rightly.
CONSTITUTIONAL LIMITATIONS ON JUDICIAL REVIEW
In India, the Constitution is the superlative rule. In the least rule, which is mismatched by means of the constitutional provisions and failed to fulfill the core values of the constitution is declared void. The higher courts have the power of judicial review, which is highly complex and extraordinary.
The Apex Court in L. Chandra Kumar v. Union of India[ii], case has made limitation in the power of review judicially provided under the Constitution.
- Conflicts between Judiciary and Legislature – The judiciary is authorized to examine the validity of the statute, which is passed by an authentically elected body of the legislature. It violates the power of separation. The Constitution imposes legal limitation on legislature. The British Parliament is supreme against judiciary. The laws enacted by parliament are not applicable to check the constitutionality by British judiciary.
Article 13 of the Indian Constitution states that national shall not produce to some extent rule, which take absent or condenses the rights as pondered in its Part three(Fundamental Rights), in respect of essential rights of the Indian inhabitants. If any legislation was created against this clause of the Constitution, it will come within the purview of infringement and will be declared as void. This Article has given a responsibility of legislatures as well as judiciary, while in the doctrine of separation of powers only judiciary has the powers to check and keep the legislation valid.
- When the views of the court are differing in any disputed matter among Central government and States or among States. The Supreme Court under Article 131 has the jurisdiction of original to solve such matter. In case, where the question is difficult from one legislation to other legislations and resources are limited within the legal rights. The court has the limited powers for judicial review under Article one hundred thirty-one. It is the constitutional limitation, which can resolve the matter through the thumb rule of the interpretation i.e. principle of harmonious construction.
- Under the consent of the President of India, the Supreme Court has the constitutional powers under Article 145 to make regulations, law, procedural practices and rules for the Indian courts. The Supreme Court is not free to make rules and regulation for Indian courts, it has bounded by certain constitutional limitations and also limitations related to human rights and legal rights.
- The Indian Apex Court is the uppermost judiciary of the land whose judgments are binding upon all court of the domain of India. The order, direction, or judgment allowed by the Indian Apex Court is not appealable in any judiciary of law under Article 141 of the Indian Constitution. When the court has developed with wide jurisdiction, it is important to exercise that jurisdiction with great care and caution. In case where the powers and jurisdiction celebrated through the Constitution of India, the judiciary is required to self-induced discipline in exercise of their power.
- Supreme Court Reversed his own Judgment – The jurisdictive conclusion of the Supreme Court is the precedent, which will be applied in the domain of India, in the future cases. The court overruled the previous judgment and laid down the parameters in their new judgment. Nevertheless, the conclusion of the Apex Court is not challengeable in any court under Article 141 of the Indian Constitution; it is mandatory to wholly the courts surrounded by the province of India. It has seen several times that the judgments of the Supreme Court are logically erroneous or conflicted. Sometimes, the judges have lack of knowledge or they are unable to resolve the matter amicably.
JUDGMENTS ON JUDICIAL REVIEW
- Ramesh Thapper vs State of Madras[iii], Supreme Court again struck down the Madras Maintenance of Public Safety Act 1949, on the ground that unless a law or policy restricting freedom of speech and expression is conducted against diminishing the security of the state or to dethrone it, such law can not fall within the reservation of clause (2) of Article 19.
- Shankari Prasad v. Union of India,[iv] the First Amendment was challenged on the ground that it abrogated the fundamental right. It was contended that the law under Article 13 (3) shall include the constitutional amendment law. The Supreme Court rejected the contention by saying that the term “law” in Article 13 should be seen under the meaning of norms and regulation made in exercise of constitutional power and therefore did not affect amendments made under Article 13 (3).
- Sajjan Singh v. State of Rajasthan[v], in this case the constitutional validity of 17th amendment (1964) was in issue. The Court referred the observation in Shankari Prasad case and held that the constitutional amendments made under Article 368 of Indian constitution, fall outside the purview of judicial review by the courts.
- This amendment was again challenged in Golaknath v. State of Punjab[vi], Supreme Court through Justice Subba Rao, held that:-
- Article 245 of the constitution read with entry 97 of list I governs the the power of parliament to amend the constitution and not Article 368. Article 368 is mere a procedural provision describing the procedure of amendments to the Indian constitution.
In order to remove the difficulties created by the decision of Supreme Court in Golaknath case, parliament introduced the 24th Amendment Act 1971. By this amendment parliament regained its power of amendment and also extended its scope.
- In Keshvananda Bharti v. State of Kerela[vii]the Supreme Court emerged victorious by reestablishing the parliament’s power to amend the constitution asserting and its institutional role. This case also strengthened its powers of judicial review through the Basic Feature Doctrine.
- Raj Narain v. State of Uttar Pradesh[viii], before the hearing of Supreme Court into the matter, the Constitutional Amendment Bill 1975 was passed by parliament. Through this amendment a new Sec. 329 A, was added in the constitution and according to this section the elections for the post of Prime Minister and Speaker are beyond limits of judicial scrutiny. Supreme Court in this case observed that the Democracy comes under the ambit of the basic structure of the constitution. Therefore, if by Sec. 329 A, any essential feature of democratic structure of Indian polity is sought to be damaged or is destroyed it would be in the violation of the constitution.
- Minnerva Mills Ltd v. Union of India[ix], the Supreme Court seek into 42nd amendment by striking down clauses (4) and (5) of Article 368 which was inserted by this Amendment, on the ground that these clauses demolish the essential and core feature of the basic structure of the Indian constitution. Restricted amending power is a basic structure of the Indian constitution and removing all the limitations and giving unlimited power of amendment can be disastrous.
[i](1803) 5 U.S. 137.
[ii] AIR 1997 SC 1125.
[iii] AIR 1950 SC 124.
[iv] AIR 1951 SC 455.
[v] AIR 1965 SC 845.
[vi] 1967 AIR 1643.
[vii] AIR 1973 SC 1461.
[viii] 1975 AIR 865.
[ix] AIR 1980 SC 1789.
By – SAMPADA SHARMA
5th year, BBA-LLB
Vivekananda Institute of Professional Studies, IPU.
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