Judicial Review in India

The doctrine of judicial review originated and developed in the USA. It was propounded for the first time in the famous case of Marbury V Madison (1803) by John Marshall, the then Chief Justice of the American Supreme Court.

In India, on the other hand, the Constitution itself confers the power of judicial review on the judiciary (both the Supreme Court as well as the High Court). Further, the Supreme Court has declared the power of judicial review as a basic feature of the Constitution. Hence, the power of judicial review cannot be curtailed or excluded even by a constitutional amendment.

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 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 the 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 sub-ordinate legislation.

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 for example, The Golaknath Case (1967), the Bank Nationalisation Case (1970), the Privy Purses Abolition Case (1971), the Kesavanand Bharti Case (1973), the Minerva Mills Case (1980), and so on.

Judicial review is needed for the following reasons:

(a) To uphold the principle of the supremacy of the constitution.

(b) To maintain federal equilibrium (balance between the Centre and the States).

(c) To protect the fundamental rights of the citizens.

In a number of cases, the Supreme Court has pointed out the significance of the power of judicial review in our country. Some of the observations made by it, in this regard, are given below.

"In India, it is the Constitution that is supreme and that a statute law to be valid, must be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not".

"Our Constitution contains express provisions for judicial review of legislations as to its conformity with the constitution. This is especially true as regards the fundamental, to which the court has been assigned the role of sentinel on the qui vive".

"As long as some Fundamental Rights exist and are part of the Constitution, the power of judiciary has also to be exercised with a view to see that the guarantees afforded by these rights are not contravened".

"The constitution is supreme lex, the permanent law of the land, and there is no ranch of government above it. Every organ of government, be it the executive or the legislature of the judiciary, derives its authority from the constitution and it has to act within the limits of its authority. no one however highly placed and no authority howsoever lofty, can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its actions are within the confines of such power laid down by the Constitution. This court is the ultimate interpreter of the constitution and to this court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits".

"It is the function of the judges, may their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as written in water. A controlled constitution will then become uncontrolled".

"The judges of the supreme court have been entrusted with the task of upholding the constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations".

"The founding fathers very wisely, therefore, incorporated in the constitution itself the provisions of judicial review so as to maintain the balance of federalism, to protect the fundamental rights and fundamental freedoms guaranteed to the citizens and to afford a useful weapon for availability, availing and enjoyment of equality, liberty, and fundamental freedoms and to help to create a healthy nationalism. The function of judicial review is a part of the constitutional interpretation itself. It adjusts the constitution to meet new conditions and needs of the time".