Judicial Review as a Constitutional Concept

At a Glance

• What it is The power of the judiciary to examine the constitutionality of legislative enactments and executive orders of the Centre and the states
• Result If found violative of the Constitution (ultra vires), they are declared illegal, unconstitutional and invalid (null and void)
• Origin The USA: Marbury versus Madison (1803), by Chief Justice John Marshall
• In India The Constitution itself confers the power on the Supreme Court and the High Courts
• Status A basic feature of the Constitution, so it cannot be curtailed or excluded even by a constitutional amendment
• Key Articles 13, 32, 131 to 136, 143, 226, 227, 245, 246, 251, 254 and 372
• Exam link UPSC Prelims, Polity: Basic Concepts

Where Does It Fit?

The rule of law and the separation of powers explain why the organs of government must act within limits. Judicial review is the power by which the courts enforce those limits. It also leads to the next topic, the basic structure doctrine, which grew out of the way the Supreme Court used this power on constitutional amendments.

What Is 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.

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. In India, on the other hand, the Constitution itself confers the power of judicial review on the judiciary, both the Supreme Court and the High Courts.

What Are the Categories of Judicial Review?

Justice Syed Shah Mohamed Quadri classified judicial review into three categories.

1. Judicial review of constitutional amendments.
2. Judicial review of legislation of Parliament and State Legislatures, and of subordinate legislation.
3. Judicial review of administrative action of the Union and the States and of authorities under the State.

The Supreme Court used the power in various cases, such as the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1970), the Kesavananda Bharati case (1973) and the Minerva Mills case (1980). In 2015 the Supreme Court declared both the 99th Constitutional Amendment, 2014 and the National Judicial Appointments Commission Act, 2014 as unconstitutional and null and void.

Why Is Judicial Review Needed?

• To uphold the principle of the supremacy of the Constitution.
• To maintain federal equilibrium, the balance between the Centre and the states.
• To protect the Fundamental Rights of the citizens.

The Supreme Court has itself pointed out the significance of the power. It has said that in India it is the Constitution that is supreme, and that a statute law, to be valid, must conform to the constitutional requirements. It has also said that the Supreme Court is the ultimate interpreter of the Constitution, and that, as the function of judicial review is a part of constitutional interpretation itself, it adjusts the Constitution to meet new conditions and needs of the time.

Which Provisions Confer the Power?

The phrase “judicial review” is nowhere used in the Constitution, but the provisions of several Articles explicitly confer the power on the Supreme Court and the High Courts.

What Is the Scope of Judicial Review in India?

The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court or in the High Courts on three grounds.

1. It infringes the Fundamental Rights (Part III).
2. It is outside the competence of the authority that framed it.
3. It is repugnant to the constitutional provisions.

The scope of judicial review in India is narrower than in the USA, though the American Constitution does not explicitly mention judicial review in any of its provisions. This is because the American Constitution provides for “due process of law”, while the Indian Constitution, in Article 21, uses “procedure established by law”. Due process of law gives the American Supreme Court wide scope to declare laws void not only on substantive grounds but also on procedural grounds of being unreasonable. The wide use of this power has made critics describe the American Supreme Court as a “third chamber” of the legislature.

In the Maneka Gandhi case (1978), the Supreme Court took a wider view of Article 21. It ruled that the right to life and personal liberty can be taken away by a law only if the procedure prescribed by that law is reasonable, fair and just, and not arbitrary, fanciful or oppressive. In effect, it introduced the American expression “due process of law”.

The American principle of judicial supremacy is thus recognised in the Indian system only to a limited extent, and the British principle of parliamentary supremacy is not fully followed either. There are many limitations on the sovereignty of Parliament in India, such as the written Constitution, federalism with division of powers, the Fundamental Rights and judicial review. What exists in India is a synthesis of the American principle of judicial supremacy and the British principle of parliamentary supremacy.

How Does Judicial Review Apply to the Ninth Schedule?

Article 31B saves the acts and regulations included in the Ninth Schedule from being challenged on the ground of violating any Fundamental Right. Article 31B and the Ninth Schedule were added by the 1st Constitutional Amendment Act, 1951. In 1951 the Schedule contained 13 acts and regulations.

• Kesavananda Bharati case (1973): The acts and regulations in the Ninth Schedule are open to challenge on the ground that they violate the basic structure of the Constitution.
• Waman Rao case (1980): The acts and regulations included in the Ninth Schedule after 24 April 1973, the date of the Kesavananda judgment, are valid only if they do not damage the basic structure.
• I.R. Coelho case (2007): There can be no blanket immunity from judicial review of laws included in the Ninth Schedule. Judicial review is a basic feature of the Constitution and cannot be taken away by putting a law under the Ninth Schedule. Laws placed under the Schedule after 24 April 1973 are open to challenge if they violate Fundamental Rights under Articles 14, 15, 19 and 21 or the basic structure.

Why Is This Topic Important?

• Guardian of the Constitution: Judicial review is the means by which the Supreme Court protects the supremacy of the Constitution, the federal balance and the Fundamental Rights.
• A basic feature: Because it is a basic feature, it cannot be curtailed even by an amendment.
• A recurring theme: Questions on Articles 13, 32 and 226, the Ninth Schedule and the American comparison come from this topic.

What Came Next?

The next topic, the basic structure doctrine, explains how the Supreme Court used judicial review to limit Parliament’s power to amend the Constitution. The comparison of parliamentary and presidential, and unitary and federal forms of government follows.

Key People and Terms

• Ultra vires Beyond the powers granted by the Constitution; such laws can be declared void
• John Marshall American Chief Justice who propounded judicial review in Marbury versus Madison (1803)
• Syed Shah Mohamed Quadri Justice who classified judicial review into three categories
• Procedure established by law The expression used in Article 21 of the Indian Constitution
• Due process of law The American expression that allows review on procedural as well as substantive grounds
• Ninth Schedule Added by the 1st Amendment (1951); laws placed after 24 April 1973 are open to challenge on basic-structure grounds

Exam Corner

Mains Angle

Questions usually ask about the nature, scope and limits of judicial review. Use these points to add depth.

• Three reasons for the power: It upholds the supremacy of the Constitution, maintains the federal balance and protects Fundamental Rights.
• Express constitutional basis: Unlike the USA, where the Constitution does not mention it, the Indian Constitution itself confers the power through several Articles.
• Narrower than the USA, with a qualification: Because of “procedure established by law” the scope is narrower, but the Maneka Gandhi case introduced a test of reasonableness for the procedure.
• Synthesis: India combines parliamentary sovereignty and judicial supremacy: the Supreme Court can strike down laws and Parliament can amend most of the Constitution.
• Limits on shielding laws: The Coelho case held that placing a law in the Ninth Schedule cannot give it blanket immunity from judicial review.
• Judicial restraint: The Supreme Court has itself said that courts must not take over the functions of the legislature or the executive.