Judicial Review in India an Analysis
5 Pages Posted: 19 Dec 2015
Dr. Ashutosh Kumar Srivastava
Faculty of Law, University of Delhi
Puja Srivastava
Jayoti Vidyapeeth
Date Written: December 17, 2014
The Ultimate power of Judiciary to review and determine validity of a law or an order may be described as the power of "Judicial Review." In India we are following the rule of Law it means that the constitution is the Supreme law of the land and any law in consistent there with is void. The term refers to "the power of a court to inquire whether a law executive order or other official action conflicts with the written constitution and if the court concludes that it does, to declare it unconstitutional and void." It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution. Judicial Review Refers the Power of Judiciary to interpret Constitution and to declare any such Law or order of legislature or executive void. If it finds them conflict the constitution of India. Judicial review has two important functions, like, of legitimizing government action and; the protection of constitution against any undue encroachment by the government.
Keywords: Judiciary to review, Judicial Review, power of Judiciary, constitution of India, government action
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Dr. Ashutosh Kumar Srivastava (Contact Author)
Faculty of law, university of delhi ( email ).
B-107 Nandani Bhawan Santnagar MainRoad, Burari Delhi, Delhi 110084 India 09610097098 (Phone)
Jayoti Vidyapeeth ( email )
Jaipur India
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Judicial Review
Judicial Review refers to the power of the Judiciary to review and determine the validity of a Law or an Order. This is an important topic in the UPSC syllabus because it is often seen in the news. There are many examples of judicial review. This article shares more details on the concept of Judicial Review and examples related to it.
Judicial Review – Latest updates
Aspirants would find this article very helpful while preparing for the IAS Exam .
Judicial review is defined as the doctrine under which executive and legislative actions are reviewed by the judiciary. Even though we have in India the principle of separation of powers of the three arms of the State, namely, the executive, the legislative and the judiciary, the judiciary is vested with the power of review over actions of the other two arms.
- Judicial review is considered a basic structure of the constitution (Indira Gandhi vs Raj Narain Case).
- Judicial review is the power of the courts to consider the constitutionality of acts of organs of Government and declare it unconstitutional if it violates or is inconsistent with the basic principles of the Constitution.
- This means that the power of the legislature to make laws is not absolute and that the validity and constitutionality of such laws are subject to review by the courts.
- Judicial review is also called the interpretational and observer roles of the Indian judiciary .
- The Indian Constitution adopted the Judicial Review on lines of the American Constitution.
- Suo Moto cases and the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the judiciary to intervene in many public issues, even when there is no complaint from the aggrieved party.
Judicial Review and Constitution
According to Article 13(2), the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.
- Judicial review is called upon to ensure and protect Fundamental Rights which are guaranteed in Part III of the Constitution.
- The power of the Supreme Court of India to enforce these Rights is derived from Article 32 of the Constitution. This provides citizens the right to directly approach the SC to seek remedies against the violation of Fundamental Rights.
Judicial Review Classification
We can classify judicial review into three categories. They are:
- Reviews of Legislative Actions: This review implies the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.
- Review of Administrative Actions: This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.
- Review of Judicial Decisions: This is seen in the Golaknath case, bank nationalisation case, Minerva Mills case, privy purse abolition case, etc.
Importance of Judicial Review
- It is essential for maintaining the supremacy of the Constitution.
- It prevents the tyranny of executives.
- It maintains the federal balance.
- It is essential for checking the possible misuse of power by the legislature and executive.
- It is essential for securing the independence of the judiciary.
- It protects the rights of the people.
Examples of Judicial Review
IT Act Section 66(A)
In 2015, the SC struck down Section 66(A) of the amended Information Technology Act, 2000. This provided the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction could fetch a maximum of three years in jail and a fine. This was repealed by the SC on the grounds that this section fell outside Article 19(2) of the Constitution, which relates to freedom of speech.
Golaknath Case (1967)
The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13, and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.
This case is also sometimes cited as an example of Judicial Activism .
Limitations of Judicial Review
There are some limitations on the judiciary on exercising its power of judicial review. In fact, when the judiciary crosses its threshold and interferes in the executive’s mandate, it can be called judicial activism, which when furthered can lead to judicial overreach. Some of the limitations of judicial review are mentioned below.
- Judicial Review limits the functioning of the government. It is only permissible to the extent of finding if the procedure in reaching the decision has been correctly followed but not the decision itself.
- The judicial opinions of the judges once taken for any case become the standard for ruling other cases.
- It is designated only to the higher courts like the Supreme Court and the High Courts.
- Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.
- The judiciary cannot interfere in political questions and policy matters unless absolutely necessary.
- The judgments can be influenced by personal or selfish motives, hence, Judicial review can harm the public at large.
- In India, a separation of functions is followed rather than the separation of powers.
- The concept of separation of powers is not adhered to strictly in the judicial review. However, a system of checks and balances has been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.
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UPSC Questions related to Judicial Review
What is the purpose of judicial review.
The purpose of judicial review is to make sure that laws passed by the legislature are not unconstitutional. It is also used to enforce constitutional discipline over administrative agencies.
Is Judicial Review mentioned in Indian Constitution?
The term ‘judicial review’ is not mentioned in the Constitution. However, it provides for the concept of judicial review.
What is the Difference between Judicial Review and Writ?
Writs are issued by the higher courts upon violation of Fundamental Rights, whereas judicial review is the power of the court to review and validate laws passed. Read more on Writs in the given link.
Can High Courts do Judicial Review?
The High Court can exercise judicial review in addition to administrative control over the lower courts within its limits.
The above details would help candidates prepare for UPSC 2023 .
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Short Essay on Judicial Review in India (818 Words)
In its capacity as the guardian of the Constitution the Supreme Court of India possesses implied power to declare any Act of the Central or State Legislature or any decree of the Executive as ultra vires, if it does not conform to the provisions of the Constitution.
The power of the Judiciary to review the Act of the Legislature or the Executive in order to determine its constitutional propriety is known as the “Doctrine of Judicial Review”.
America is the classic home of judicial review. It was an extra constitutional growth in America. In the famous case of Marbury vs. Madison (1803) Chief Justice John Marshall of the United States emphatically pronounced the power of the Court to declare the act of the legislature as ultra vires.
Marshall claimed this power of the Court from famous clause of “Due Process of Law” of the American Constitution. One of the Bills Of Rights in the American Constitution is that “No person shall be deprived of his life, liberty and property without due process of law”.
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American Jurists claim that Law in this Clause is akin to “Natural Law”. According to Daniel Webster the meaning of “Due Process of Law” is that “Every citizen shall hold his life, liberty, property and immunities for the protection of general laws which govern society”.
“Due” in this clause has been taken to mean “What is just and proper” and “Law” as “Natural Law”. Thus the Judicial Review in the American Constitution has two aspects, namely, procedural and Substantive. The Supreme Court can challenge an
Act if either its procedure is defective or the substance contained in it is against the canons of the natural law or natural justice.
There is no judicial review in England. England has an unwritten Constitution. There is absolute supremacy of the Parliament. The Chief Legislators and Chief Executives are combined and the Cabinet headed by the Prime Minister brings complete co-ordination between the legislation and administration. Hence judicial review is not necessary.
The power of judicial review is explicit in the Constitution of India. Further, the scope of judicial review in India is not as wide as that of the United States of America. The scope of judicial review is comparatively limited in India because of the fact that the Constitution of India is the longest written Constitution in the world. All provisions including the distribution of powers between the Union and the States have been elaborately enumerated.
The enumeration of Fundamental Rights along with its limitations in detail has also restricted the scope of judicial review in India. Further, there is a vital distinction between the two clauses contained in the respective Constitutions, namely, “Due Process of Law” of the American Constitution and “Procedure established by Law” of the Indian Constitution.
Article 21 of the Constitution provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. The word “law” in the clause “procedure established by law” does not mean natural law but it implies State made law.
If the State makes law through which life or personal liberty of the citizen is deprived of the Supreme Court cannot question it on the ground of natural law or natural justice. The Court can only question the procedure through which the person is deprived of his life or personal liberty.
The Supreme Court of India in the famous case of A. K. Gopalan vs. State of Madras (1950) accepted its own limitations. It decided that the “Procedure established by Law” is not same as “Due Process of Law” of the American Constitution and by adopting that phrase, the Constitution-makers of India gave the Legislature the final word to determine law.
Thus the reasonableness of law cannot be questioned in India by the Supreme Court on substantive grounds. Only the procedural aspect of the judicial review is found in the Indian Constitution but not that of its substantive aspect. Further, the
Supreme Court can declare any legislation in toto as ultra vires if it goes against any provision of the Constitution. It can declare any act of the Legislature or the Executive as unconstitutional if it violates any of the Fundamental Rights guaranteed under the Constitution. Justice B. K. Mukherjee correctly assessed the position of our Supreme Court in the following words:-
“In India it is the Constitution that is Supreme and Parliament as well as Stale legislatures must not only act within the limits of their respective legislative spheres as demarcated in the three lists occurring in the Seventh Schedule of the Constitution, but Part 111 of the Constitution guarantees to the citizen certain fundamental rights which the legislative authority can on no account transgress.
A statute or law to be valid must, in all cases, be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is unconstitutional or not”.
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Judicial Review In India
Supreme court cases: nixon v. united states.
Article 3 of the Constitution grants the Supreme Court the power to review cases and declare a verdict. However, the Supreme Court is only allowed to make a decision regarding a case if and only it is brought to them. In other words, only cases that has been passed through the lower courts and has made its way up into the Supreme Court is the Supreme Court allowed to make a decision. From the founding of the constitution, many cases have made its way up the courts and into the Supreme Court where the Justices deliver the final verdict. Cases similar to that of Nixon vs. United States challenged the federal power of the President.
The Effect Of Judicial Review On The Judicial Act Of 1801
The Judiciary Act of 1801, a law that created more federal judge positions, contributed to the establishment of judicial review by becoming the first law to be overturned by the process of judicial review and because it caused Chief Justice John Marshall to lay down three principles for judicial review. To begin, the Judiciary Act of 1801 was created shortly before President John Adams left office as an attempt of the Federalist party in order to help keep as many Federalists as possible in government. Adams did this knowing that he or any of his fellow Federalists would not be elected as president. This law evoked the case Marbury vs. Madison, a case between a man who had been promised a job created by the Judiciary Act of 1801 and the secretary
Preamble Definition
Nearly 231 years the Constitution of the United States was written. A preamble is a preliminary statement or an introduction. The Preamble of the Constitution outlines what the Constitution has in it. The Constitution of United States established America’s government and laws. The Articles of the Constitution are connected to the Preamble to the Constitution. The Articles of the Constitution and the Preamble are connected through Article One, Two, and Three.
Dbq Essay On The Judicial Branch
As stated earlier I believe that the Judicial Branch should have the right to decide if a law is constitutional or not. The court case of Marbury vs. Madison is important because it brought up this point. I believe this is true because the judicial branch is very small, they have no other checks on any other branch, and they don’t receive any money. Because they are the branch to decide if something is lawful or not they are the perfect branch to make the decision on whether something is constitutional or
The Judicial Branch
Our establishing fathers added to the technique, the detachment of forces, to forestall misuse of power among the three branches and to ensure the opportunity of all. Every branch has its particular force- executive power belongs to the president, authoritative force exists within Congress, and the legal authority rests with the Supreme Court. The significance of the partition of powers was to make an administration that would not become domineering. Rather, it was deliberately intended to advance freedom and equitably speak to the will of the individuals. Another significant highlight of the division of forces is the guideline of giving each of the branches an extraordinarily diverse voting public. Today in the United States, many people ask
Judicial Review Pros And Cons
Judicial Review is the power for courts to review other government branches to determine the validity of its actions whether it be constitutional or unconstitutional. These ‘acts’ can be described as legislation passed by congress, presidential orders and actions, or all state and local governmental actions. It was first generated into a doctrine after the case of Marbury vs Madison. This
Court System: The Marbury Vs. Madison Case
The chief justice resolved the case by providing answers to three issues. The first issue was whether Marbury had the right to
Marbury V Marrison Case Summary
Yes. William Marbury was appointed and entitled to serve as the Justice of Peace in the District of Columbia.
Analysis Of The Supreme Court Case: Marbury V. Madison
Although the constitution was made in order to protect the rights of citizens and to make sure that no one in the government exceeds their power, it does not express thoroughly who has the power to do what. The Judiciary Act was an attempt to define the power of the Supreme Court, but because of the wording it was ruled unconstitutional.Judicial review is the ability of the Supreme Court to limit Congressional power by declaring legislation unconstitutional. In my opinion Judge John Marshall had a very strong argument. He did everything correctly and legally. He was pretty fair in his ruling and he did as much as he could for William Marbury without violating the law. John Marshall wanted William Marbury to get the position yet, it was out of his hands. He could only do so much. The Supreme Court lives by the constitution and must have original
Three Levels Of The Federal Courts Essay
The three levels within the federal courts are: the U.S. Magistrate Courts, the U.S. District Courts, the U.S. Courts of Appeals, and the U.S. Supreme Court. The magistrate courts are the lowest level and as such are limited to trying misdemeanors, setting bail amounts and assisting the district courts. The U.S. District Courts are the federal branch of original jurisdiction courts. These are responsible for criminal trials and giving guilty or not guilty verdicts. The U.S. Courts of Appeals are responsible for all the appeals from U.S. district courts. They will only review cases in which constitutionality or judicial error is brought into question. The defendant has already been given a guilty verdict and so the question of innocence will not be re-evaluated. However, the appeals court may send the case back to the court of original jurisdiction to be retried, at which the defendant may be determined not guilty in a retrial or the charges may be dropped by the prosecution. The top tier of the federal court system is the U.S. Supreme Court. This court is not mandated to hear the appeals of all criminal cases as is the case with the U.S. Court of Appeals. The Supreme Court chooses which cases have important constitutional issues for review. There are four guidelines
Assess The Power Of Judicial Review In The United States
Constitution did not resolve the question of whether the federal courts should have this power over congressional and executive acts. During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review. But the key question was whether the Court had the power to strike down an act of
What Is The Importance Of Judicial Review In Supreme Court History
Article III of the Constitution illustrates what a Supreme Court should look like, it states: “The judicial Power of the United States, shall be vested in one supreme Court…”. Article III creates the judicial branch and it is the branch that applies to Constitution into different cases but nowhere in the Constitution does it talk about judicial review which was created in a Supreme Court case. The Judiciary Act of 1789 was signed into law by George Washington and it established the structure of the federal court system and throughout the years the same basic outline of the federal court system is still intact today, although he never said anything about judicial review is it important to have it because it makes sure that none of the branches are violating the Constitution. Chief Justice John Marshall states "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of
Importance Of Judicial Selection
Throughout the course of our nation’s history, there has been a debate about the best way to select judges. While most agree that judges should be impartial, objective, and nonpartisan, there is still much deliberation about the best way to achieve that. Judicial selection by descriptive representation, which is the idea that the court should mirror demographically its constituents in terms of things like race and gender, is the best way to ensure a competent, independent, and well-qualified judiciary. By reflecting the diverse population of the United States, judicial selection by descriptive representation would ensure a well-rounded group of justices that bring many different minds to each case, increase the public’s confidence in the court
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To better understand the importance of the Marbury v. Madison, I think that we should first know what judicial review is. Judicial review is the power of the courts to assess the constitutionality of actions by other government actors and to invalidate those actions deemed unconstitutional. So, let me explain how this all fits in. In the confusion
Judicial Activism: Political Or Personal Consideration
Judicial activism is based on political or personal considerations. Also, Judicial activism acknowledges that it is acceptable to rule on cases in a manor that generates a proffered or desired outcome, regardless of how the law was written in the law. Also, judicial activism focuses on improper considerations of non-constitutional theories, the creation of new rights not expressly granted or preserved by the constitution or statute, or the negation of laws because the judge views it as being bad.
More about Judicial Review In India
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Why in News
Recently, the Supreme Court (SC) refused to treat the Central Vista project as a unique one requiring greater or heightened judicial review.
- The SC said the government was “entitled to commit errors or achieve successes” in policy matters without the court’s interference as long as it follows constitutional principles.
- The Central Vista project of New Delhi includes Rashtrapati Bhawan, Parliament House, North and South Block, India Gate, National Archives among others.
- The Indian Constitution adopted the Judicial Review on lines of the American Constitution.
- In other words, judicial reviews are a challenge to the way in which a decision has been made , rather than the rights and wrongs of the conclusion reached.
- Procedure Established by Law: It means that a law enacted by the legislature or the concerned body is valid only if the correct procedure has been followed to the letter.
- Due Process of Law: It is a doctrine that not only checks if there is a law to deprive the life and personal liberty of a person but also ensures that the law is made fair and just.
- India follows Procedure Established by Law.
- It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution.
- Judicial review is considered a basic structure of the constitution ( Indira Gandhi vs Raj Narain Case 1975) .
- Judicial review is also called the interpretational and observer roles of the Indian judiciary.
- Suo Moto cases and the Public Interest Litigation (PIL) , with the discontinuation of the principle of Locus Standi, have allowed the judiciary to intervene in many public issues , even when there is no complaint from the aggrieved party.
- This review implies the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.
- This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.
- This review is used to correct or make any change in previous decisions by the judiciary itself.
- It is essential for maintaining the supremacy of the Constitution.
- It is essential for checking the possible misuse of power by the legislature and executive.
- It protects the rights of the people.
- It maintains the federal balance .
- It is essential for securing the independence of the judiciary .
- It prevents tyranny of executives.
- It limits the functioning of the government.
- In India, a separation of functions rather than of powers is followed.
- The concept of separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.
- The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
- Judicial review can harm the public at large as the judgment may be influenced by personal or selfish motives.
- Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.
Constitutional Provisions for Judicial Review
- There is no direct and express provision in the constitution empowering the courts to invalidate laws, but the constitution has imposed definite limitations upon each of the organs, the transgression of which would make the law void.
- The court is entrusted with the task of deciding whether any of the constitutional limitations has been transgressed or not.
- Article 372 (1) establishes the judicial review of the pre-constitution legislation.
- Article 13 declares that any law which contravenes any of the provisions of the part of Fundamental Rights shall be void.
- Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
- Article 251 and 254 states that in case of inconsistency between union and state laws, the state law shall be void.
- Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to the State List.
- Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.
- Articles 131-136 entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state, between the states and the union; but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.
- Article 137 gives a special power to the SC to review any judgment pronounced or order made by it. An order passed in a criminal case can be reviewed and set aside only if there are errors apparent on the record.
Way Forward
- With the power of judicial review, the courts act as a custodian of the fundamental rights.
- With the growing functions of the modern state, judicial intervention in the process of making administrative decisions and executing them has also increased.
- When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could be rightly said that the judiciary then begins to invalidate the concept of separation of powers set out in the Constitution.
- Making laws is the function and duty of the legislature , to fill the gap of laws and to implement them in a proper manner is responsibility of the executive. So that the only work remaining for the judiciary is interpretations. Only a fine equilibrium between these government bodies can sustain the constitutional values.
IMAGES
VIDEO
COMMENTS
The Ultimate power of Judiciary to review and determine validity of a law or an order may be described as the power of "Judicial Review." In India we are following the rule of Law it means that the constitution is the Supreme law of the land and any law in consistent there with is void.
Judicial review is considered a basic structure of the constitution (Indira Gandhi vs Raj Narain Case). Judicial review is the power of the courts to consider the constitutionality of acts of organs of Government and declare it unconstitutional if it violates or is inconsistent with the basic principles of the Constitution.
The scope of judicial review is comparatively limited in India because of the fact that the Constitution of India is the longest written Constitution in the world. All provisions including the distribution of powers between the Union and the States have been elaborately enumerated.
Article 368 (4)-(5) were inserted in the in the Article 368 because of preventing the supreme court to contradict any Constitutional Amendment Act on the theory of ‘basic features' of the Constitution. Features of Judicial Review in India 1. Judicial Review is the power which can be used by both the Supreme Court and the High Courts.
Judicial Review: It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. Concepts of Law: