Judicial Review – UPSC Notes – Indian Polity

The concept of judicial review originated and evolved in the United States, notably articulated in the landmark case of Marbury v. Madison (1803) by Chief Justice John Marshall of the American Supreme Court.

In contrast, in India, the power of judicial review is explicitly granted to the judiciary by the Constitution, encompassing both the Supreme Court and the High Courts. Moreover, the Supreme Court has established judicial review as an intrinsic aspect of the Constitution’s basic structure. Consequently, this power cannot be restricted or eliminated, even through a constitutional amendment.

Meaning of Judicial Review

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. On examination, if they are found to be violative of the Constitution (ultra vires), they can be declared as illegal, unconstitutional, and invalid (null and void) by the judiciary. Consequently, they cannot be enforced by the Government.

Justice Syed Shah Mohamed Quadri has classified judicial review into the following three categories:

1. Judicial review of constitutional amendments.
2. Judicial review of legislation of the Parliament and State Legislatures and subordinate legislations.
3. Judicial review of administrative action of the Union and State and authorities under the state.

The Supreme Court used the power of judicial review in various cases, as for example, the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills case (1980), and so on.

In 2015, the Supreme Court declared both the 99th Constitutional Amendment, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 as unconstitutional and null and void.

Importance of Judicial Review

The significance of judicial review cannot be overstated, as it serves several crucial purposes:

1. Upholding Constitutional Supremacy: Judicial review ensures that all laws align with the supreme authority of the Constitution.
2. Maintaining Federal Equilibrium: It helps in balancing powers between the central government and the states, preserving the federal structure.
3. Protecting Fundamental Rights: Judicial review acts as a guardian of citizens’ Fundamental Rights, ensuring that legislation does not infringe upon them.

The Supreme Court of India has emphasized the pivotal role of judicial review through various pronouncements:

1. The Constitution reigns supreme, and any law must adhere to its principles. The judiciary holds the responsibility to ascertain the constitutionality of enactments.
2. Especially concerning Fundamental Rights, the judiciary acts as a vigilant sentinel, ensuring their protection through judicial review.
3. Judicial review is imperative to prevent the violation of Fundamental Rights enshrined in the Constitution.
4. No branch of government stands above the Constitution. The judiciary, as the ultimate interpreter, determines the extent of governmental powers and ensures their adherence to constitutional limits.
5. Judges are duty-bound to validate laws, ensuring that Fundamental Rights are not rendered meaningless. Without judicial review, rights would lack effective remedies.
6. The judiciary is entrusted with interpreting the Constitution to maintain the balance of power envisaged and prevent constitutional overreach by the legislature and executive.
7. The inclusion of provisions for judicial review in the Constitution reflects the wisdom of the founding fathers, serving to preserve federalism, protect Fundamental Rights, and adapt the Constitution to contemporary needs.

Constitutional Provisions Empowering Judicial Review

Although the term ‘Judicial Review’ is not explicitly mentioned in the Constitution, several articles explicitly grant the power of judicial review to both the Supreme Court and the High Courts. These provisions are elucidated below:

1. Article 13: Declares that any law inconsistent with or derogatory to Fundamental Rights shall be deemed null and void.
2. Article 32: Ensures the right to petition the Supreme Court for the enforcement of Fundamental Rights, empowering the Court to issue directions, orders, or writs for this purpose.
3. Article 131: Provides for the Supreme Court’s original jurisdiction in center-state and interstate disputes.
4. Article 132: Grants the Supreme Court appellate jurisdiction in constitutional cases.
5. Article 133: Bestows the Supreme Court with appellate jurisdiction in civil cases.
6. Article 134: Confers appellate jurisdiction upon the Supreme Court in criminal cases.
7. Article 134-A: Governs the process of granting a certificate for appeal to the Supreme Court from the High Courts.
8. Article 135: Empowers the Supreme Court to exercise the jurisdiction and powers of the Federal Court under any pre-constitutional law.
9. Article 136: Authorizes the Supreme Court to grant special leave to appeal from any court or tribunal, excluding military tribunals and court martial.
10. Article 143: Grants the President the authority to seek the Supreme Court’s opinion on any question of law or fact, including pre-constitutional legal matters.
11. Article 226: Empowers the High Courts to issue directions, orders, or writs for the enforcement of Fundamental Rights and other purposes.
12. Article 227: Invests the High Courts with the power of superintendence over all courts and tribunals within their respective territorial jurisdictions, excluding military courts or tribunals.
13. Article 245: Determines the territorial extent of laws enacted by Parliament and state legislatures.
14. Article 246: Specifies the subject matter of laws enacted by Parliament and state legislatures (i.e., Union List, State List, and Concurrent List).
15. Articles 251 and 254: Resolve conflicts between central and state laws, with central law prevailing and rendering state law void in case of inconsistency.
16. Article 372: Addresses the continuance in force of pre-constitutional laws.

Scope of Judicial Review

The constitutional validity of a legislative enactment or executive order can be contested in either the Supreme Court or the High Courts based on the following three grounds:

(a) Infringement of Fundamental Rights (Part III), (b) Beyond the authority’s competence that formulated it, and (c) Repugnance to constitutional provisions.

It’s evident that the scope of judicial review in India is narrower compared to that in the USA, despite the absence of explicit mention of judicial review in any American Constitution provisions. This disparity arises from the American Constitution’s provision for ‘due process of law‘ as opposed to the ‘procedure established by law‘ in the Indian Constitution. The distinction lies in the fact that while ‘due process of law‘ allows the American Supreme Court broad discretion to safeguard citizens’ rights, including voiding laws on both substantive and procedural grounds, the Indian Supreme Court focuses solely on substantive examination. It determines whether a law falls within the authority’s jurisdiction without delving into its reasonableness, suitability, or policy implications.

The extensive exercise of judicial review power by the American Supreme Court under the ‘due process of law‘ clause has led critics to label it as a ‘third chamber‘ of the Legislature, a super-legislature, or the arbiter of social policy. Although our constitutional system acknowledges this American principle of judicial supremacy to a limited extent, it doesn’t fully align with the British principle of parliamentary supremacy. Instead, India’s system represents a synthesis of both, incorporating elements of judicial supremacy and parliamentary supremacy. This synthesis is evident through various limitations on Parliament’s sovereignty, such as the written nature of the Constitution, federalism with a division of powers, Fundamental Rights, and judicial review. Thus, what prevails in India is a blend of the American and British principles.

Judicial Review of the Ninth Schedule

Article 31B shields acts and regulations listed in the Ninth Schedule from challenges based on contravention of Fundamental Rights. This provision, along with the Ninth Schedule itself, was introduced by the 1st Constitutional Amendment Act of 1951. Initially, in 1951, the Ninth Schedule comprised only 13 acts and regulations, but as of 2016, it encompasses 282 entries. Among these, state legislature laws typically pertain to land reforms and abolition of the zamindari system, while Parliament’s laws cover various other matters.

However, in a landmark ruling in the I.R. Coelho case (2007), the Supreme Court decreed that laws included in the Ninth Schedule are not immune from judicial review. The Court affirmed that judicial review is a ‘basic feature’ of the constitution and cannot be abrogated by placing a law under the Ninth Schedule. The Court established that laws added to the Ninth Schedule after April 24, 1973, are subject to challenge if they violate Fundamental Rights under Articles 14, 15, 19, and 21, or the ‘basic structure’ of the Constitution. This doctrine of ‘basic structure’ was first articulated by the Supreme Court in the landmark Kesavananda Bharati case (1973).

In its ruling, the Supreme Court made several key conclusions:

1. Laws that abrogate or abridge rights guaranteed by Part III of the Constitution may violate the basic structure doctrine, warranting judicial review.
2. Each new constitutional amendment must be judged on its merits, considering its effect and impact on rights guaranteed under Part III.
3. Amendments to the Constitution affecting the Ninth Schedule must be tested against the basic or essential features of the Constitution, particularly Article 21 read with Articles 14 and 19.
4. The justification for conferring protection on Ninth Schedule laws must undergo constitutional adjudication, assessing the nature and extent of the violation of Fundamental Rights and its impact on the basic structure doctrine.
5. If a Ninth Schedule law has already been upheld by the Court, it cannot be challenged again unless it was incorporated after April 24, 1973, and violates Part III rights.
6. Actions taken and transactions finalized under the impugned Acts are not subject to challenge.

The ruling thus establishes parameters for judicial review of Ninth Schedule laws, ensuring that those infringing upon Fundamental Rights or the basic structure of the Constitution do not receive blanket protection.

Number of Acts and Regulations Included in the Ninth Schedule:

Serial Number	Amendment Number (Year)	Number of Acts and Regulations Included in the Ninth Schedule
I. Included Before April 24, 1973
1.	First Amendment (1951)	13 (1 to 13)
2.	Fourth Amendment (1955)	7 (14 to 20)
3.	Seventh Amendment (1964)	44 (21 to 64)
4.	Twenty-Ninth Amendment (1972)	2 (65 to 66)
II. Included After April 24, 1973
5.	Thirty-Fourth Amendment (1974)	20 (67 to 86)
6.	Thirty-Ninth Amendment (1975)	38 (87 to 124)
7.	Fortieth Amendment (1976)	64 (125 to 188)
8.	Forty-Seventh Amendment (1984)	14 (189 to 202)
9.	Sixty-Sixth Amendment (1990)	55 (203 to 257)
10.	Seventy-Sixth Amendment (1994)	1 (257A)
11.	Seventy-Eighth Amendment (1995)	27 (258 to 284)

Note: Entries 87, 92, and 130 have been omitted by the Forty-Fourth Amendment (1978).

FAQs on Judicial Review in India:

1. What is judicial review, and how does it function in India?

Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders. In India, the judiciary, including the Supreme Court and High Courts, holds this power. If a law or executive action is found to be unconstitutional, it can be declared null and void, and the judiciary can prevent its enforcement.

2. What are the categories of judicial review in India according to Justice Syed Shah Mohamed Quadri?

Justice Syed Shah Mohamed Quadri classified judicial review into three categories: review of constitutional amendments, review of legislation, and review of administrative actions by both central and state authorities.

3. Why is judicial review important in India?

Judicial review is crucial for upholding constitutional supremacy, maintaining federal equilibrium, and protecting fundamental rights of citizens. It ensures that laws align with the Constitution, balances powers between central and state governments, and acts as a guardian of fundamental rights.

4. What are the constitutional provisions empowering judicial review in India?

Although the term ‘judicial review’ is not explicitly mentioned in the Constitution, several articles grant the power of judicial review to the Supreme Court and High Courts. These include Articles 13, 32, 131, 132, 133, 134, 134-A, 135, 136, 143, 226, 227, 245, 246, 251, and 254.

5. How does the Indian approach to judicial review differ from that of the United States?

In India, judicial review focuses on substantive examination, determining whether a law falls within the authority’s jurisdiction without delving into its reasonableness or policy implications. This differs from the United States, where judicial review under the ‘due process of law’ clause allows broader discretion to safeguard citizens’ rights, including voiding laws on substantive and procedural grounds. India’s approach synthesizes elements of both judicial supremacy and parliamentary supremacy, incorporating limitations on Parliament’s sovereignty.

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