Simone Lawson
India's constitution is the supreme legal document of the nation and the longest written national constitution in the world. The constitution governs all laws and outlines the fundamental political code, structure, procedures, powers, and duties of government institutions. The concept of judicial review, which emerged from the US Constitution, is a powerful tool provided to senior Indian courts by the Indian Constitution. Judicial review in India is a process by which the Supreme Court and the High Courts of India examine, determine and invalidate the Executive or Legislative actions inconsistent with the Constitution of India.
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What You'll Learn
Judicial review of executive or legislative actions
Judicial review in India is a process by which the Supreme Court and the High Courts of India examine, determine and invalidate executive or legislative actions that are inconsistent with the Constitution of India. The Constitution of India explicitly provides for judicial review through Articles 13, 32, 131 through 136, 143, 226 and 246.
The Supreme Court and the High Courts have the power to invalidate any law, ordinance, order, by-law, rule, regulation, notification, custom or usage that has the force of law and is incompatible with the terms of the Constitution of India. The Indian Judiciary can exercise its power of judicial review under the following categories: the power to examine whether the laws or decisions passed by the Legislature comply with constitutional provisions, the power to ensure the legality of any administrative decisions passed by the authorities, and the power to examine the rationality and legitimacy of the administrative actions.
The main function of judicial review is to explain the laws made by the legislature. Judicial review ensures that the law that is passed is not violating the provisions of the Indian Constitution. Judicial review is one of the checks and balances in the separation of powers, the power of the judiciary to supervise the legislative and executive branches and ensure constitutional supremacy. Judicial review is also important as it helps distribute the power between the Union and the states. It ensures that the judiciary is independent and clearly defines the functions of every organ of the government. It also protects the fundamental rights of the citizens guaranteed by the Indian Constitution.
Judicial review is only limited to higher courts like the Supreme Court and High Courts, not to the lower courts. Judicial review can neither interrupt any political questions nor any policy matters. It does not make or implement the laws as this power is vested with other organs of the government. It also limits the functioning of the government.
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Judicial review of constitutional amendments
India's judiciary has the power of judicial review, which allows it to scrutinise the actions of the legislative, executive, and administrative arms of the government. Judicial review is a process by which the Supreme Court and the High Courts of India examine, determine, and invalidate executive or legislative actions that are inconsistent with the Constitution of India. The Indian Constitution does not explicitly mention judicial review, but it is supported by several articles, including Articles 32, 226, and 246.
The judiciary's role in judicial review is to check the credibility of the laws instituted by the legislature and ensure that they comply with the provisions of the Constitution. The Supreme Court's power of judicial review extends to constitutional amendments, and it can invalidate any laws, ordinances, orders, rules, or regulations that are incompatible with the Constitution. Since the case of Kesavananda Bharati v. State of Kerala (1970), the courts have been able to invalidate any constitutional amendments that infringe on the Basic Structure of the Constitution.
The Basic Structure Doctrine, affirmed by a five-judge Bench of the Supreme Court in Indira Nehru Gandhi v. Raj Narain (1975), holds that judicial review is an element of the Constitution. The Bench identified the rule of law as relying on effective judicial review and, thus, an element of the Constitution's basic structure. The doctrine also dictates that the Constitution grants Parliament the power to amend, not destroy.
The Parliament has, on several occasions, attempted to restrict the power of judicial review. In response to the case of Golaknath v. State of Punjab (1967), in which the Supreme Court held that an amendment that "takes away or abridges" a Fundamental Right is void, the Parliament passed the Twenty-fourth and Twenty-fifth Amendments, which restricted the power of judicial review. The Twenty-fourth Amendment excluded Constitutional Amendments from the term "law" in Article 13(2), while the Twenty-fifth Amendment added Article 31C, which prevented the Supreme Court from invalidating any laws related to Directive Principles for infringing Fundamental Rights.
However, in the case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court struck down the third clause of the Twenty-fifth Amendment, reaffirming its power to review laws for infringing Fundamental Rights. The Court also clarified that while the Constitution grants Parliament the power to amend, it does not have the power to destroy.
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Judicial review of laws and administrative decisions
India's Constitution provides for judicial review through Articles 13, 32, 131-136, 143, 226, and 246. The Supreme Court and the High Courts of India have the power to exercise this review. Judicial review is one of the checks and balances in the separation of powers, allowing the judiciary to supervise the legislative and executive branches and ensure constitutional compliance.
The Indian Judiciary can exercise its power of judicial review to examine whether laws or decisions passed by the Legislature comply with constitutional provisions. It can ensure the legality of any administrative decisions passed by the authorities, examining their rationality and legitimacy. Judicial review can also make amends or improve inconsistencies in previous judgements by the courts, and declare any unconstitutional amendments null and void.
Judicial review of administrative actions is an essential component of the rule of law in a democracy like India. It ensures the legality of administrative actions, which are legal actions concerned with the conduct of a public administrative body. The doctrine-ultra-vires is the basic structure of administrative law, controlling actions of the administration. Ultra-vires refers to actions that are excessive or outside the ambit of the acting party.
The main function of judicial review is to explain the laws made by the legislature. It ensures that laws passed do not violate the Indian Constitution. Judicial review can be done over laws formulated by both the state and the Centre. It is important to note that judicial review cannot interrupt any political questions or policy matters, and it does not make or implement laws, as this power is vested in other organs of the government.
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Judicial review of pre-constitution legislation
India's judicial review process allows the Supreme Court and High Courts to examine, determine, and invalidate executive or legislative actions that are inconsistent with the Constitution of India. This process is facilitated by Articles 13, 32, 131 through 136, 143, 226, and 246 of the Constitution. Notably, there is no direct mention of judicial review in the Indian Constitution, but several articles support its principles.
The main function of judicial review is to explain the laws made by the legislature and ensure that they do not violate the Indian Constitution. It is a check on the government's functioning, ensuring that even the government's actions are subject to review. Judicial review upholds the principles of a "living constitution", allowing for periodic amendments for improvement.
The Indian Constitution adopted the Judicial Review based on the American Constitution, which exercises judicial review only in concrete cases or controversies and only for laws that are in effect or actions. This differs from the French Model, which requires judicial review before a law takes effect, and the European Model, which allows for review after a law has taken effect, on either concrete or abstract claims.
Article 372 (1) establishes the judicial review of pre-constitution legislation. It ensures that the laws enacted by the legislature are valid and have legal effects only when the correct procedure is followed. This is known as the "Procedure Established by Law". Additionally, the "Due Process of Law" ensures that laws are not only fair and just but also conform to the provisions of the nation's Constitution.
In conclusion, judicial review of pre-constitution legislation in India is facilitated by Article 372 (1) and supported by other constitutional articles. It ensures that the laws enacted by the legislature are valid, do not violate fundamental rights, and conform to the procedures and provisions established by the Indian Constitution.
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Judicial review of union and state laws
India's judiciary exercises judicial review over union and state laws to ensure that the laws passed by the legislature are compliant with the Constitution of India, 1950. The Indian Constitution explicitly provides for judicial review through Articles 13, 32, 131 through 136, 143, 226 and 246. The Supreme Court and High Courts of India have the power to examine, determine and invalidate any union or state law, ordinance, order, bye-law, rule, regulation, notification, custom or usage that has the force of law and is incompatible with the Constitution.
Articles 32 and 226 of the Indian Constitution guarantee individuals the right to a constitutional remedy, allowing them to approach the Supreme Court and High Courts, respectively, in cases where their fundamental rights have been infringed. The judiciary's power of judicial review is essential for maintaining the independence of the judiciary and clearly defining the functions of the government's organs. It also ensures the protection of individual rights and upholds the principles of a "living constitution", which can be periodically amended for the better.
The Indian judiciary can exercise its power of judicial review in several categories. Firstly, it can examine whether laws or decisions passed by the Legislature comply with constitutional provisions. Secondly, it can ensure the legality and rationality of any administrative decisions made by the authorities. Thirdly, it can amend or improve any inconsistencies in previous judgments to prevent future conflicts. Finally, it has the authority to declare any unconstitutional amendment as null and void.
There have been several landmark cases in India that have helped establish the importance of judicial review. For example, in the case of Kesavananda Bharati v. State of Kerala (1970), the courts established their power to invalidate any constitutional amendments that infringe on the Basic Structure of the Constitution. In R.C. Cooper v. Union of India (1970), the Supreme Court significantly changed the interpretation of Fundamental Rights by holding that they are not mutually exclusive.
In conclusion, the judicial review of union and state laws in India is a vital mechanism for upholding the rule of law and ensuring that the government functions properly without unnecessary interference. It is a fundamental feature of the Indian Constitution and plays a crucial role in protecting the rights of citizens and maintaining a "living constitution".
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Frequently asked questions
Constitutional review in India, also known as judicial review, is a process by which the Supreme Court and the High Courts of India examine, determine and invalidate the Executive or Legislative actions inconsistent with the Constitution of India. It ensures the protection of individual rights without misuse and upholds the principles of a "living constitution".
The legal basis for constitutional review in India is found in various articles of the Indian Constitution, including Articles 13, 32, 131 through 136, 143, 226 and 246. These articles provide the Supreme Court and the High Courts with the power to review and invalidate any laws, ordinances, orders, or rules that are incompatible with the Constitution.
The Supreme Court and the High Courts of India are the only courts with the power to conduct constitutional reviews, according to Article 142.
Constitutional review in India has some limitations. It cannot interrupt any political questions or policy matters, and it does not have the power to cancel decisions made by the Executive or Legislative branches. Additionally, it is limited to reviewing laws and does not have the power to make or implement new laws.
