Meaning and Scope of Judicial Review in India

At a Glance

• What it is The power of courts to test laws and executive orders against the Constitution
• Origin Marbury v. Madison (1803), USA
• In India Conferred by the Constitution itself; a basic feature
• Grounds Violation of Fundamental Rights, lack of competence, repugnance to the Constitution
• Exam link UPSC Prelims, Polity: Judicial Review

Where Does It Fit?

This is the first topic of the category on Judicial Review. The doctrine originated and developed in the USA, propounded first in the case of Marbury v. Madison (1803) by John Marshall, Chief Justice of the American Supreme Court. In India the Constitution itself confers the power of judicial review on the Supreme Court and the High Courts.

Meaning

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. If they are found to be violative of the Constitution (ultra vires), they can be declared illegal, unconstitutional and invalid, null and void, and cannot be enforced by the government. Justice Syed Shah Mohamed Quadri classified judicial review into three categories: judicial review of constitutional amendments; judicial review of legislation of Parliament and state legislatures and subordinate legislation; and judicial review of administrative action of the Union and states and authorities under the state.

The Supreme Court has declared the power of judicial review a basic feature of the Constitution, an element of the basic structure. Hence it cannot be curtailed or excluded even by a constitutional amendment. The Court has used the power in cases such as Golak Nath (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1970), Kesavananda Bharati (1973), Minerva Mills (1980), and in 2015 it declared the 99th Amendment and the NJAC Act void.

Importance

Judicial review is needed to uphold the principle of the supremacy of the Constitution, to maintain federal equilibrium (the balance between the Centre and the states), and to protect the Fundamental Rights of citizens. The Supreme Court has observed in a number of cases: in India it is the Constitution that is supreme; a statute must conform to it, and it is for the judiciary to decide whether an enactment is constitutional (Chief Justice Kania, A.K. Gopalan, 1950). The Court has been assigned the role of sentinel on the qui vive of Fundamental Rights (Chief Justice Patanjali Shastri, 1952). Without judicial review, rights without remedies would be as writ in water (Chief Justice Chandrachud, Minerva Mills, 1980). Judicial review is part of constitutional interpretation itself and adjusts the Constitution to meet new conditions and needs (Justice Ramaswami, 1997).

Scope: Three Grounds

The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court or the High Courts on three grounds: it infringes the Fundamental Rights (Part III); it is outside the competence of the authority which framed it; or 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 it. The reason is that the American Constitution provides for ‘due process of law’ whereas the Indian Constitution provides for ‘procedure established by law’.

Judicial Supremacy and Parliamentary Supremacy

The exercise of wide power of judicial review by the American Supreme Court under the due process clause has led critics to call it a third chamber of the legislature, a super-legislature and the arbiter of social policy. That American principle of judicial supremacy is also recognised in our system, but to a limited extent. Nor do we fully follow the British principle of parliamentary supremacy, since there are limitations on the sovereignty of Parliament: the written character of the Constitution, federalism with division of powers, Fundamental Rights and judicial review. In effect, what exists in India is a synthesis of the American principle of judicial supremacy and the British principle of parliamentary supremacy.

Why Is This Topic Important?

• Core concept Judicial review underlies most polity questions
• USA comparison Due process versus procedure established by law
• Basic feature Cannot be excluded by amendment

What Came Next?

The next topic covers the constitutional basis of judicial review.

Key People and Terms

• Ultra vires Beyond powers
• Judicial review Testing laws against the Constitution
• Due process of law American standard including reasonableness
• Procedure established by law Indian standard
• Marbury v. Madison 1803 American case

Exam Corner

Mains Angle

Questions on this topic usually ask about the scope of judicial review. Use these points to add depth.

• Express provisions Unlike the USA
• Narrower scope Procedure established by law
• Basic feature Immune from amendment
• Synthesis Neither parliamentary nor judicial supremacy fully