Eleanor Finch
Judicial review is an essential feature of Indian democracy, upholding the rule of law, protecting individual rights, and maintaining the balance of power. The Indian Constitution confers the power of judicial review on both the Supreme Court and High Courts, allowing them to examine, determine, and invalidate executive or legislative actions that are inconsistent with the Constitution. This power is derived from various articles in the Constitution, including Articles 13, 32, 131-136, 143, 226, and 246, and it serves as a check and balance on the functioning of the legislature, executives, and administrative functions. The Supreme Court has declared the power of judicial review as a 'Basic Feature' of the Constitution, and it plays a crucial role in safeguarding the fundamental rights of citizens and ensuring constitutional governance.
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What You'll Learn
The Supreme Court of India's power
The Supreme Court of India has been given the final authority to interpret the Constitution. The Supreme Court and the High Courts of India have the power of judicial review, which is the power to examine, determine and invalidate the Executive or Legislative actions inconsistent with the Constitution of India. The Supreme Court and the High Courts can 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.
The Supreme Court asserted that Parliament cannot have absolute and unlimited power to amend the doctrines of the Constitution. The Supreme Court questioned the constitutional validity of Articles 31A, 31B and 31C (related to acquisition of property). This led to the amendment of these laws to avoid future disparities. Judicial review only aims to make the authorities reconsider their decisions. It does not guarantee the cancellation of that decision.
The Supreme Court has declared the power of judicial review as a 'Basic Feature' of the Constitution. Hence, it cannot be curtailed or excluded even by a Constitutional Amendment Act. The phrase 'judicial review' is not mentioned in the Constitution, but there are many constitutional provisions that confer the power of judicial review on the Supreme Court and the High Courts. Some of the prominent constitutional provisions include:
- Article 13 provides that any law that is inconsistent with or in derogation of Fundamental Rights shall be null and void.
- Article 32 empowers the Supreme Court to issue writs for the enforcement of Fundamental Rights.
- Article 226 empowers the High Courts to issue writs for the enforcement of Fundamental Rights and for any other purpose.
The power of judicial review in India ensures the protection of individual rights without misuse. It upholds the principles of a 'living constitution', which can be periodically amended for the better. Judicial review is the power held by the Indian Judiciary to ascertain whether a law or decision passed by the Legislative/Executive/Administrative arms of the government adheres to the constitutional principles. If proved unconstitutional, the Supreme Court or High Courts reserve the right to declare it null and void.
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High Courts' power
The High Courts of India are the highest courts of appellate jurisdiction in each state and union territory. They are established as cornerstones of a single integrated judicial system, inspired by the Government of India Act of 1935. The High Courts are the highest judicial authority at both the state and union territory levels.
Articles 214 to 231 in Part VI of the Indian Constitution deal with the provisions related to the High Courts. The Constitution provides for a High Court for each state, however, the 7th Constitutional Amendment Act of 1956 authorised the Parliament to establish a common High Court for two or more states or for two or more states and a Union Territory. The territorial jurisdiction of a High Court is co-terminus with the territory of a state.
The Chief Justice of a High Court is appointed by the President of India, in consultation with the Chief Justice of India and the Governor of the state. The Chief Justice enjoys all the jurisdiction, powers, and privileges of a judge of that High Court. The High Court has the power to punish for contempt of itself and subordinate courts, although it shall not take cognisance of a contempt offence punishable under the Indian Penal Code, 1860.
The High Court has the power to review and correct its own judgment, order, or decision. It is the apex judicial body within the state, responsible for interpreting the law, safeguarding fundamental rights, and ensuring the rule of law prevails across its jurisdiction.
The High Courts, along with the Supreme Court, have the power of judicial review. This power enables the judiciary to ascertain whether a law or decision passed by the government adheres to the constitutional principles. If proved unconstitutional, the High Courts reserve the right to declare it as null and void. Judicial review helps to legitimise government action and protect the constitution from any encroachment by the government. It is a tool to enforce constitutional discipline over administrative agencies.
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Judicial review's role in maintaining a 'living constitution'
The Indian Constitution does not directly mention judicial review. However, several constitutional articles support its principles, and it is considered an integral part of the constitution. 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 inconsistent with the Constitution of India.
The concept of judicial review first emerged from the United States Constitution. Judicial review in India helps to maintain a living constitution by upholding the rule of law, protecting individual rights, and maintaining the balance of power. It serves as a cornerstone of democracy, safeguarding constitutional governance and preventing the abuse of power. Judicial review ensures that the Constitution remains the supreme law of the land and that government actions remain within its bounds. It upholds the principles of a living constitution, which can be periodically amended for the better.
Judicial review has two important functions: legitimizing government action and protecting the constitution against any undue encroachment by the government. It is also called the interpretational and observer roles of the Indian judiciary. Judicial review implies the power to ensure that laws passed by the legislature follow the provisions of the Constitution of India, 1950 (COI). It is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.
The Indian judiciary can exercise its power of judicial review under the following categories: examining whether the laws or decisions passed by the legislature comply with constitutional provisions, verifying the credibility of the expression "Procedure Established by Law", and serving as a supervisory entity to ensure that the laws passed by the legislative, executive, and administrative organs of the government comply with constitutional ideals.
Judicial review also validates the lawfulness and appropriateness of administrative decisions, protects the fundamental rights of citizens, prevents misuse and exploitation of power, and resolves controversial discrepancies in laws and acts. It helps to keep a check on the functioning of the legislature, executives, and administrative functions, acting as a check and balance on the government. Judicial review can be used by courts as a reference for similar cases in the future.
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The separation of powers
The Indian Constitution does not explicitly mention the term "judicial review". However, several constitutional provisions confer the power of judicial review on the Supreme Court and High Courts, making it an integral part of the Constitution. 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 and supremacy.
The Supreme Court of India has been given the final authority to interpret the Constitution, and the power to declare any law or decision by the government as unconstitutional, null and void. The Supreme Court's role in judicial review is considered a ''Basic Feature'' of the Constitution, protected by the Basic Structure Doctrine, and cannot be curtailed or excluded even by a Constitutional Amendment Act. Articles 13, 32, 131-136, 143, 226 and 246 of the Indian Constitution are among those that provide for judicial review.
The High Courts of India also have the power of judicial review, which is considered one of the fundamental features of the Constitution. Article 226 empowers the High Courts to issue writs for the enforcement of fundamental rights and for any other purpose, enabling them to examine the legality of legislative and executive actions.
The concept of judicial review first emerged from the United States Constitution, where it serves a similar purpose of upholding the rule of law and protecting individual rights. However, there are differences in the implementation of judicial review between the two countries. In the US, the Judiciary can examine laws and executive orders on both substantive and procedural grounds, while in India, the review is limited to substantive grounds, such as whether the law is within the powers of the concerned authority.
In India, a separation of functions rather than of powers is followed, and the concept of separation of powers is not strictly adhered to. The separation of powers is an element of the Constitution, protected by the Basic Structure Doctrine, where judicial review acts as a check and balance. This ensures that the judiciary is independent and that the functions of each organ of the government are clearly defined.
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Judicial review's origin in the US Constitution
The concept of judicial review first emerged from the United States Constitution. It helps to keep a check and balance on the functioning of the legislature, executives and administrative functions. Judicial review in the US is the power held by the judiciary to ascertain whether a law or decision passed by the Legislative, Executive, or Administrative arms of the government adheres to constitutional principles.
The text of the US Constitution does not contain a specific reference to the power of judicial review. However, the power to declare laws unconstitutional has been deemed an implied power derived from Article III and Article VI. The provisions relating to the federal judicial power in Article III state: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
During the ratification process, supporters and opponents of ratification published pamphlets, essays, and speeches debating various aspects of the Constitution. Publications by over a dozen authors in at least twelve of the thirteen states asserted that under the Constitution, the federal courts would have the power of judicial review. There is no record of any opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review.
The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. There were also several instances of state court invalidation of state legislation as inconsistent with state constitutions.
Practically all of the Framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation. The only expressed opposition to judicial review came from Mercer, with a weak seconding from Dickinson. Mr Mercer disapproved of the doctrine that judges should have the authority to declare a law void. He thought laws ought to be well and cautiously made and then be uncontrollable.
Five years before Marbury v. Madison, a number of state legislatures stated their understanding that under the Constitution, the federal courts possess the power of judicial review. Marbury was the first Supreme Court decision to strike down an act of Congress as unconstitutional. Chief Justice John Marshall wrote the opinion for a unanimous Court. The case arose when William Marbury filed a lawsuit seeking an order requiring the Secretary of State, James Madison, to deliver to Marbury a commission appointing him as a justice of the peace. Marbury filed his case directly in the Supreme Court, invoking the Court's original jurisdiction, rather than filing in a lower court. The constitutional issue involved the question of whether the Supreme Court had jurisdiction to hear the case. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction in cases involving writs of mandamus.
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Frequently asked questions
The Indian Constitution confers the power of judicial review on the Supreme Court and High Courts.
The main function of judicial review is to explain the laws made by the legislature and ensure they do not violate the Indian Constitution. It also delivers justice to all citizens and is considered the guardian of the Constitution.
Judicial review is limited to higher courts like the Supreme Court and High Courts. It can neither interrupt political questions nor policy matters. Judicial review can declare a law or decision by the government unconstitutional and invalidate it, but it does not guarantee the cancellation of that decision.
