Judicial Review

Judicial review is a mechanism in which executive or legislative actions are subject to judicial scrutiny. A court with judicial review authority may invalidate laws acts and governmental actions which are incompatible with a higher authority: an executive decision may be invalidated because it is unlawful or a statute may be invalidated as it breaches the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to oversee the legislative and executive branches if the latter exceed their authority. The doctrine differs from jurisdiction to jurisdiction and the procedure and scope of judicial review may differ between the countries. A judicial review in India is a review of government decisions taken by the Supreme Court of India. A court with judicial review authority may invalidate laws acts and governmental actions that violate Constitutional the Basic features. Similar articles for the judicial review for the Supreme Court Article 32(Right to Constitutional Remedy) and Article 136(Special leave to appeal by the Supreme Court). For High Court Articles 226(Power of High Courts to grant such writs) and 227(Power of superintendence over all courts by the High Court)

Judicial review in Indian

In post-independence India,it became appropriate to provide specific provisions for judicial review in order to give effect to the rights of individual and society guaranteed in the text of the Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, defined the provision relating to the same as the ‘heart of the Constitution’.1 Article 13(2) of the Constitution of India stipulates that the Union or the States shall not make any law which eliminates or abbreviates any of the fundamental rights, and any law which contravenes of the aforementioned mandate shall, to the extent of the contravention, be void.

Although judicial review of administrative action has developed along the lines of common law doctrines such as proportionality, legitimate purpose, reasonableness and concepts of natural justice, the Supreme Court of India and the various High Courts have been granted the authority to rule on the constitutionality of legislative as well as administrative acts to protect and uphold the fundamental rights guaranteed in Part III of the Constitution. The higher courts are also approached to rule on matters of legislative competence, often in the sense of Centre-State ties since Article 246 of the Constitution read with the 7th schedule, provides for a simple demarcation as well as an intersection between the Union Parliament’s legislative powers and the various State Legislatures.

Thus, the scope of judicial review before Indian courts has grown into three dimensions – first, to ensure equality in administrative action, second to protect the constitutionally guaranteed fundamental rights of citizens and third to rule on matters of legislative competence between the center and the states. Article 32 of the Constitution provides the power of the Supreme Court of India to enforce those fundamental rights. It gives people the right to approach the Supreme Court directly for seeking remedies against the infringements of these fundamental rights.

This right to constitutional remedies is itself a fundamental right which can be exercised in the form of writs evolved in common law – such as habeas corpus (directing the release of an illegally detained person), mandamus (directing a public authority to fulfill its duty), quo warranto (directing a person to vacate an illegal held office), prohibition (prohibiting the proceedings of a lower court) and certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself). In addition to the Supreme Court, the High Courts of the different States are also known as constitutional courts and Article 226 permits citizens to file similar writs before the High Courts. Since the rise of Public Interest Litigation (PIL) and dilution in recent decades of concept of locus standi principle, Article 32 has been creatively interpreted to shape innovative remedies such as a ‘continuing mandamus’ to ensure compliance by executive agencies since the judicial directives.

Judicial Pronouncements

  1. Shankari Prasad v. Union of India
    it was held by six judge bench, five of whom did not consent to amend the basic rights under the Indian Constitution. However, in case of Keshavanand Bharti v. state of Kerala, where six judges out of seven judges held that Parliament modifying influence has and at any portion of the Constitution could be amended and ruled over the Golaknath case. The Supreme Court held that the essential rights cannot be modified in such a method, which will affect the basic construction of the Constitution.2. I.R. Coelho v. State of Tamil Nadu
    This case was seen from Keshvanand Bharti case which such as Chandra Kumar v. Union of India and others (1997),Waman Rao and others v. Union of India and others (1981), Minerva Mills Ltd. and others v. Union of India (1980), Indira Nehru Gandhi v. Raj Narnia (1975), were judicial review was considered to be an important and fundamental Part of the India Constitution.

    3. Mitthu v. State of Punjab
    The Supreme Court of India has repealed Section 303 of Indian Penal Code, 1860. That section had made death sentence compulsory. In case the Supreme Court of India completes its frequent pronouncement Article 21 of the Indian Constitution was illustrated.                                                                                                                        4. P.U.C.L v. U. O. I.
    In its historical judgment, the Indian Supreme Court declared that in order to disregard or disobey the court’s ruling, the lawmakers of India have no right to ask for the instrumentality, if the legislature has influence over the subject matter.

Critical Evaluation of Judicial Review:

  1. Undemocratic: Judicial Review was interpreted by the analysts as antidemocratic. It empowers the court to decide will of the people on the fate of the laws passed by the legislature, representing the sovereign.
  2. Lack of Clarity: The Constitution of India does not explicitly define the Judicial Review framework. It rests upon the basis of several Constitutional articles.
  3. Source of from Administrative Problems: If the Supreme Court finds a law to be unconstitutional, the decision will take effect from the date the judgment is delivered. Today a law can undergo Judicial Review only when in any case a complaint of its constitutionality arises being heard by the Supreme Court.

Such a case will come before the Supreme Court after 5 or 10 or more after the law has been enforced. As such when the Court refuses it as unconstitutional, it creates administrative problems. A Judicial Review judgment will cause more problems than it addresses.

  1. Reactionary:

Several critics look upon the system of Judicial Review as a reactionary system. They hold that while determining the constitutional validity of a law, the Supreme Court frequently adopts a legalistic and conservative approach. It can oppose progressive laws the legislature has passed.

  1. Delaying System:

Judicial Review emerges from uncertainty and inefficiency. Often the people in general and the law enforcement agencies in particular sometimes decide to go slow or hold their fingers crossed when it comes to the implementation of a law. They prefer to wait and let the Supreme Court first rule about its constitutional validity in a case that may come before it at any time.

  1. Tends to make the Parliament less responsible:

Furthermore, the critics further claim that the Judicial Review can make the Parliament incompetent as it can decide to depend upon the Supreme Court to assess the constitutionality/ reasonablility of a law passed by it.

  1. Fear of Judicial Tyranny:

The Supreme Court bench (3 or 5 or 9 judges) hears a judicial review case. It gives a decision by a simple majority. Very often, a single judge determines the fate of a law is by a majority. Therefore the judgment of a single judge will decide the fate of a law which was passed by a majority of the elected representatives of the sovereign people.

  1. Reversal of its own decisions by the Supreme Court:

It is recorded that the Supreme Court reversed its earlier decisions on several occasions. The judgment in the Golaknath case overturned the earlier judgments and the judgment in the Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment was found legitimate, then invalid and then again valid. Such reversals reflect the subjectivity element in the judgments.

The critics strongly criticize the Judicial Review system as it operates in India on all these grounds.



Author: Kunal Gupta,
Jagran lakecity University

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