Judicial Review: India's Constitution And Its Silence

Judicial review is a process by which the Supreme Court and High Courts of India examine, determine and invalidate the Executive or Legislative actions inconsistent with the Constitution of India. The concept of judicial review is not expressly mentioned in the Indian Constitution, but there are several provisions that make references to the concept. These provisions include Articles 13, 32, 131 through 136, 143, 226 and 246. 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.

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Judicial review and the separation of powers

India's three branches of government—the legislature, the executive, and the judiciary—are the focus of the separation of powers. The legislature creates laws, the executive enforces them, and the judiciary evaluates their validity. Judicial review is a crucial element of the Indian Constitution, legitimising government actions, protecting fundamental rights, and preventing the executive and the legislature from overstepping their authority.

Articles 13, 32, 131 through 136, 143, 226, and 246 of the Indian Constitution explicitly provide for judicial review. The Supreme Court and High Courts of India have the authority to review and invalidate any laws, ordinances, orders, or regulations that contravene the Constitution. This power of judicial review is a check and balance in the separation of powers, ensuring that the legislative and executive branches are supervised and that the Constitution remains the supreme law of the land.

The scope of judicial review in India is narrower than in the United States, where the concept originated. The Indian Constitution provides for 'Procedure Established by Law', meaning the judiciary can only examine laws and executive orders on substantive grounds, such as whether they are within the powers of the authority, and not on procedural grounds of reasonableness or suitability. This is in contrast to the US's 'Due Process of Law', where the judiciary can review laws and executive orders on both substantive and procedural grounds.

The Indian Constitution does not define the basic structure, and there is no explicit provision empowering the courts to invalidate laws. However, the judiciary has interpreted the 'basic structure' doctrine to include the rule of law, the independence of the judiciary, the separation of powers, and other democratic principles. The Supreme Court ruled in the 1973 Kesavananda Bharati case that Parliament could amend any part of the Constitution as long as it did not alter the basic structure or essential features. This ruling established that judicial review is part of the basic structure of the Constitution and that the separation of powers is an element protected by this doctrine.

Judicial activism, which can help maintain the rule of law and protect citizens' fundamental rights, has been a topic of discussion in India. However, if practised for too long, it may dilute the separation of powers and the checks and balances system. To prevent judicial overreach, judicial review should be practised within the framework of the separation of powers and checks and balances.

Judicial review's role in maintaining a living constitution

The Constitution of India is a living document, which changes with time. The judiciary plays a significant role in interpreting and accommodating changing social norms. Judicial review is one of the checks and balances in the separation of powers, with the power to supervise the legislative and executive branches and ensure constitutional supremacy.

Articles 13, 32, 131 through 136, 143, 226 and 246 of the Constitution of India explicitly provide for judicial review. The Supreme Court and the High Courts of India examine, determine and invalidate any Executive or Legislative actions inconsistent with the Constitution. Judicial review helps to legitimize government action and protect the Constitution from undue encroachment by the government. It is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers. The Supreme Court and the High Courts have the power to invalidate any law, ordinance, order, rule, regulation, notification, custom or usage that has the force of law and is incompatible with the Constitution.

The judiciary has the authority of judicial review, or judicial scrutiny of the exertions or undertaking of legislative, executive, and administrative arms of the government. The paramount intention of performing such an act is to check whether the actions are under the purview of the law of the land, i.e., the Constitution. Judicial reviews challenge how a decision has been made, rather than the rights and wrongs of the conclusion reached. Judicial review can be used to correct or change previous decisions by the judiciary itself. The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court or the High Court on the grounds that it violates the Fundamental Rights enshrined in Part III of the Constitution.

The Indian Constitution is a written document, but it is not a rigid one. It is a magna carta of socio-economic transformation. The Apex Court of India has continuously interpreted the mandate for good governance enshrined in the Constitution in light of contemporary situations and challenges facing the country. The judiciary has enlarged the scope of justice in the country. Judicial activism, however, should not lead to the dilution of the separation of powers. Each organ of democracy must function within its own sphere and must not take over what is assigned to the others. The balance of power between the three organs of the state is enshrined in the Constitution, and the equilibrium in the exercise of authority must be maintained.

The scope of judicial review in India

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. The Constitution of India explicitly provides for judicial review through Articles 13, 32, 131 through 136, 143, 226 and 246. The scope of judicial review in India is narrower than that in the USA. This is because the American Constitution provides for 'Due Process of Law', while the Indian Constitution provides for 'Procedure Established by Law'.

The provision of Due Process of Law in the USA means that the Judiciary examines laws and executive orders on substantive grounds of being unlawful and on procedural grounds of being unreasonable. On the other hand, the provision of Procedure Established by Law in India means that the Judiciary can examine laws and executive orders only on substantive grounds, i.e. whether they are within the powers of the authority concerned or not, and not on procedural grounds such as reasonableness, suitability, or policy implications.

In India, the judiciary has the authority of judicial review, or judicial scrutiny of the exertions or undertaking of legislative, executive, and administrative arms of the directorate or government. The judiciary's role is to check the credibility of the laws shaped by the legislature. The judiciary has the power to ensure that laws passed by the legislature follow the provisions of the Constitution of India, 1950. 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.

The Supreme Court and the High Courts have the power to invalidate any law, ordinance, order, bye-law, rule, regulation, notification, custom or usage that has the force of law and is incompatible with the terms of the Constitution of India. Judicial review in India has two important functions: legitimizing government action and protecting the constitution against any undue encroachment by the government. It is an essential feature of Indian democracy, upholding the rule of law, protecting individual rights, and maintaining the balance of power.

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Landmark cases involving judicial review

Judicial review in India is an essential feature of democracy. It allows the judiciary to examine the constitutionality of laws, executive actions, and government decisions, thus safeguarding constitutional rights and maintaining a balance of power between different branches of government. While the phrase "judicial review" is not mentioned in the Indian Constitution, the power of judicial review is conferred on both the Supreme Court and High Courts by the Constitution.

Shankari Prasad v. Union of India (1951)

This case first established judicial review in India and asserted the Parliament's amendment power.

Kesavananda Bharati v. State of Kerala (1973)

This case marked a watershed moment in Indian constitutional law. The Supreme Court held that the basic structure of the Constitution is inviolable and cannot be amended by Parliament's exercise of its constituent power. This established the "Basic Structure" doctrine, which includes certain fundamental features of the Constitution that cannot be altered, thus protecting individual rights and maintaining a balance of power between different branches of government.

Golaknath v. State of Punjab (1967)

In this case, the Supreme Court initially held that Parliament did not have the power to amend the Fundamental Rights enshrined in the Constitution. However, this decision was later overturned by the 24th Amendment to the Constitution, which allowed Parliament to amend any part of the Constitution, including Fundamental Rights.

Puttaswamy v. Union of India (2017)

The Supreme Court declared the right to privacy as a fundamental right under the Indian Constitution. The judgment recognised that privacy is an essential aspect of personal liberty and dignity, with far-reaching implications for data privacy and the limits of state surveillance.

Supreme Court Ruling on the 99th Constitutional Amendment (2015)

The Supreme Court declared both the 99th Constitutional Amendment of 2014 and the National Judicial Appointments Commission (NJAC) Act of 2014 as unconstitutional and null and void.

Judicial review and the protection of fundamental rights

The Indian Constitution provides for judicial review through Articles 13, 32, 131 to 136, 143, 226 and 246. 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 supremacy.

The Supreme Court and the High Courts have the power to invalidate any law, ordinance, order, bye-law, rule, regulation, notification, custom or usage that has the force of law and is incompatible with the terms of the Constitution of India. This includes any law that is inconsistent with or in derogation of fundamental rights, which are enshrined in Part III of the Constitution.

The judiciary plays a vital role in protecting the fundamental rights of citizens in India. The Constitution guarantees fundamental rights to its citizens, and the judiciary, especially the Supreme Court, is the ultimate protector and interpreter of these rights. The judiciary protects fundamental rights through various means, including writs, public interest litigation (PIL), and judicial review.

The scope of judicial review in India is narrower than in the USA. The American Constitution provides for 'Due Process of Law', whereas the Indian Constitution provides for 'Procedure Established by Law'. This means that the Indian judiciary can examine laws and executive orders only on substantive grounds, i.e., whether they are within the powers of the authority concerned, and not on procedural grounds such as reasonableness, suitability, or policy implications.

The concept of judicial review first emerged from the United States Constitution, where it helps to keep a check and balance on the functioning of the legislature, executives, and administrative functions. Judicial review in India serves a similar purpose, legitimizing government action and protecting the Constitution against any undue encroachment by the government. It ensures that the Constitution remains the supreme law of the land and that government actions remain within its bounds.

The judiciary has played a significant role in protecting the rights of marginalized communities in India, such as the transgender community, through judgments such as the National Legal Services Authority (NALSA) v. Union of India case (2014), which recognized transgender persons as a third gender and granted them equal rights and protection under the law. The judiciary has also protected the freedom of speech and expression through landmark judgments, such as the Shreya Singhal case (2015), which struck down Section 66A of the Information Technology Act, 2000, which was used to suppress free speech on the internet.

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