Judicial Review Explained

 ■ The term Judicial Review means the power of the superior courts (i.e. Supreme Courts and High Courts in India) to review and potentially strike down a law made by the state as unconstitutional and void if the law violates one or more provisions of the Constitution to the extent of such violation.

The doctrine of judicial review, in its modern sense, has been originated in the United States of America. It was propounded in the famous case of Marbury V. Madison (1803) by John Marshall, the then chief justice of the American Supreme Court. Chief Justice Marshall emphasized on the judicial duty to pursue the Constitution in case where a statute is in conflict with the federal Constitution. Marshall further explained that the phraseology of the United States Constitution confirms and strengthens the principle that a law repugnant to the Constitution is void. All courts and other departments are bound to act under the Constitution.

The Constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary enactment invalid. On the contrary, every court is constrained to enforce every provision of the law of parliament.

Under both the U.S. and Indian Constitution the concept of judicial review is more implicit where it is traceable under the Writ jurisdiction of Supreme Court and High Court U/A 32 and 266 respectively. However, when it relates to Fundamental Rights the concept of judicial review is provided explicitly U/A 13 (2).

■  How courts apply Judicial review:

Judicial review is concerned not with decision but with decision-making process. In case of judicial review, the courts inquire how the decision was reached. The superior court scrutinises the whole decision-making process and checks whether the decision was made lawfully or not. If it finds the decision unlawful, it cannot make a fresh decision but sends the matter back to the decision making authority. However, the judiciary have to give detailed reasons explaining why the law is declared unconstitutional and void by referring to the relevant positions of the Constitution.

Courts apply judicial review according to the following principle:

• If two interpretations are possible to a law made by the state where the first interpretation makes the law inconformity with the constitution and the other interpretation leads the law in conflict with the constitution then the court shall give effect to first interpretation and validate the law. However, if the law is capable of only one interpretation which makes the law conflict with the constitution then the court has no choice but to declare the law unconstitutional and void.

• Ordinarily, a court shall not apply judicial review on a law that has not brought into legal in-forcibility.

• Ordinarily, a court shall not apply judicial review suo motto.

 

■ Judicial Review in India:

Judicial review in India originates from the textual provisions of the constitution. Though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, the provisions of this is vested U/A 13, 32, 131-136, 143, 226, 145, 246, and 372.

The doctrine of judicial review is thus firmly rooted in India and has the explicit sanction of the constitution.

Article 13 lays down the procedure for Judicial review in India. Judicial review is not merely a power of the courts to set aside legislative actions but also covers the power of judicial review of executive or administrative actions. Under our Constitution, judicial review can conveniently be classified under three heads:

1) Judicial review of Constitutional amendments.

This has been the subject-matter of consideration in various cases by the Supreme Court; of them worth mentioning are: Shankari Prasad case, Sajjan Singh case, Golak Nath case, Kesavananda Bharati case, Minerva Mills case, Sanjeev Coke case, and Indira Gandhi case.

The test of validity of Constitutional amendments is conforming to the basic features of the Constitution.

2) Judicial review of legislation of Parliament, State Legislatures as well as subordinate legislation

Judicial review in this category is in respect of legislative competence and violation of fundamental rights or any other Constitutional or legislative limitations.

This can be done by using some basic principles of Constitutional Law i.e. doctrines of Pith and Substance, Colourable Legislation, Severability, Liberal Interpretation, Limitation of Stare Decisis, Unconstitutionality and Eclipse, and Waiver.

Few important judicial pronouncements are: Keshavananda Bharti v State of Kerala(1973); State of Rajasthan v Union of India (1994); M. Nagaraj v Union of India (2006); I. R. Coelho v. State of Tamil Nadu and other (2007).

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3) Judicial review of administrative action of the Union of India as well as the State Governments and authorities falling within the meaning of State.

Judicial review of administrative action in India has been developed in order to regulate every action of the administrative authorities. In the process of judicial review of an administrative decision, the writ court does not sit as an appellate court.

It must be noted that judicial review is different from the right of appeal. The courts do not act as an appellate authority during judicial review.

The writ court does not replace its own decision against the decision of the administrative authorities. The court scrutinises the whole administrative action and sees how the whole action was reached. If the court finds an administrative action as arbitrary or irrational, the court sets aside the whole action and sends back the matter rot the administrative authority for re-examination.

In the Delhi Development Authority v M/s UEE Electricals Engg. Pvt Ltd. (2004), Supreme Court said courts can interfere with administrative actions only if it suffers from vice of Illegality, Irrationality, or Procedural Impropriety.

Recently, in a suo motu case on the management of the second COVID wave, Supreme Court in COVID Vaccine Case said the central government’s vaccination policy is “prima facie arbitrary and irrational" in the way it seeks to introduce paid inoculation by states and private hospitals for 18-44-year-olds after keeping it free for those above 45.

■ Difference between Judicial Review and Judicial control:

Many a  times Judicial review is often confused with Judicial control. The term judicial review has a restrictive connotation as compared to the term judicial control. Judicial review is ‘supervisory’, rather than ‘corrective’, in nature. Judicial review is denoted by the writ system whereas Judicial control is a broader concept and includes judicial review within itself. Judicial control comprises of all methods through which a person can seek relief against the administration through the medium of the courts, such as, appeal, writs, declaration, injunction, damages statutory remedies against the administration.

 

■ Importance of Judicial Review:

• It maintains the supremacy of the Constitution, Rule of Law, Separation of powers, Federal Balance, and Independence of Judiciary.

•  It protects the Fundamental Rights of the citizens.

• It upholds the fundamental principle of law that every power must be exercised within the four corners of law and within the legal limits.

■ Limitations of Judicial Review:

The scope of Judicial review is limited in India.

• In AK Roy v. Union of India (1982) the Supreme Court pointed out the need to exercise judicial review over the President’s decision only when there were substantial grounds to challenge the decision, and not at “every casual and passing challenge”.

• Article 31B provide restricted immunity to the laws placed under the Ninth Schedule of the Indian Constitution. Currently, 284 such laws are shielded from judicial review.

• U/A  212 of the constitution of India provides that the Courts cannot inquire proceedings of the Legislature on the ground of any alleged irregularity of procedure.

• U/A 110(3) of the constitution of India if any question arises whether a bill is a money bill or not, the decision of the speaker of Lok Sabha shall be final.

• The scope of Judicial review in preventive detention cases is very narrow. 

Way forward:

In India, we have adopted the concept of Separation of Power so we cannot assume the power of Judicial Review in full extended form. The concept of Judicial Review is enshrined in the Basic Structure of the Constitution. It helps the courts to keep a check and balance upon the other two organs of government so that they don’t misuse their power and work in accordance with the Constitution. In the absence of judicial review, the written constitution will be reduced to a collection of platitudes without any binding force.

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