Judicial Review – Indian Polity Notes

Judicial review is an concept or innovation of American in origin. It was propounded by Justice Marshall in landmark Marbury vs Madison Case in 1803.

Judicial review is power of courts to review actions of the executive and legislature, if actions found to be against provisions of the constitution, the courts can hold those unconstitutional & make them null and void.

Is Supremacy of the Constitution and Supremacy of the Judiciary the same thing?

• Yes, especially in countries with written constitutions like US, India etc. The constitution leaves the interpretation of its provisions to the judiciary. So, the constitution is supreme, but in practice, Constitution is what judges say.
• Any country where the judiciary has the power of reviewing acts of parliament and will automatically have the principle of judicial supremacy.

Judicial Review & Indian Constitution:

The constitution defines the term ‘law’ in Article 13(3). Further, any law which abridges fundamental rights is declared void under Article 13(2). Due to the power of being an ultimate interpreter of the constitution, the judiciary is the protector of the constitution.

• In India, both Supreme Court and the state High Court are empowered by the constitution to conduct judicial review.
• The power of judicial review is drawn from various articles of the constitution 13,32,131,136,143,145,226,246,251,254,372. (The important articles are 13,32,226).

Doctrines of Judicial Review:

To examine the constitutional validity of an act, the judiciary follows the following principles.

1. Presumption in favour of constitutionality of law: No suo-moto review of laws. (Except in case of violation of fundamental rights, Judiciary review acts suo moto).
2. Doctrine of Liberal Interpretation: interpreting law in widest manner. Eg. Menka Gandhi Case
3. Doctrine of literal interpretation: Eg. A K Gopalan Case
4. Doctrine of reading down: Restrictive interpretation and striking down few words from certain sections of law. Eg. Reading down of sec 377 of IPC in Navtej Singh Johar Case
5. Doctrine of ab initio: some laws becomes invalid from date constitution comes into existence, if they are in contradiction.
6. Doctrine of Eclipse/Shadow: Law passed by legislature is kept in shadow, when it’s principles are in contrast with constitution. However, court can remove law from shadow. It was used in Bhikaji Narayan Case 1995 & State of Gujrat v Ambika Mills Case.
7. Doctrine of severability: Entire law is not declared null & void but only certain part are taken out.
8. Doctrine of prospective overruling: Judiciary overrules it’s own past judgements but makes its effective from future date. Eg. Golak Nath Case 1967.
9. Doctrine of Basic Structure: used to review constitutional amendments. It allows judiciary to question constitution itself (as amendments are part of constitution). Eg. Kesavananda Bharati Case.
10. Doctrine of due process of law.
11. Doctrine of procedure established by law.

Judicial Review – Important Cases:

• In context of India, during early years of independence, then PM Pt. Nehru considered that constitution is heavily influenced by British model, so India have parliamentary sovereignty. 
• From Shankari Prasad Case 1951 to Sajjan Singh Case 1965, the judiciary upheld the narrow, literal interpretation of the term law defined in article 13(3). And held that amendments were not covered under it. This gave impression of unlimited power of amending constitution to the parliament.
• In Golak Nath Case, 1967, court overruled it’s earlier positions and went for wider interpretation of term law. It held constitutional amendments are also comes under term law as defined under article 13 (2).
• Kesavananda Bharati Case, Indira Gandhi v Raj Narain Case, Minerva Mills Case, S R Bommai Case, Indra Sawhney Case, I R Coelho Case etc are few landmark cases of judicial review.

Significance of Judicial Review:

1. It is critical to avert tyranny of executive.
2. It is essential to safeguard independence of judiciary. [As constitution itself envisaged independent judiciary].
3. Necessary for maintaining Constitutional supremacy.
4. Helps in maintaining balance between three branches of government and union & state governments.

Recent Examples of Judicial Review:

1. Shiv Sena Tussle: SC is reviewing, outgoing speakers order summoning rebel MLA’s under 10^th schedule.
2. NJAC Case (99^th constitutional amendment act 2014) was nullified by SC in 2015.
3. Sabrimala Verdict (Indian Young Lawyers vs State of Kerala).

Criticism:

1. While reviewing specialized acts on fiscal policy, Space, Science & Technology etc. Judges are not equipped with domain knowledge. While passing orders, those may not be practical.
2. Excessive interference of Judiciary under judiciary review in the executive & legislative domain, violates separation of power.
3. As seen in S R Bommai Case, SC held that Presidential Proclamation of dissolving state assembly is subject to review. And if court strikes it down, it could revive dissolved assembly. Its overreaching powers than what constitution provides for.

Conclusion:

• In country like India where constitution sanctions separation of power(article 50), if courts assume power of judicial review in uncontrolled manner, it will adversely impact other two branches.
• The judicial review acted as ‘safety valve’ to check executive overreach. The function of judicial review is one of the most powerful systems in the Indian Constitution.

Previous Year Question:

Q1. What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the constitution (CSE MAINS 2016, 12.5 M, 200W)

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