Judicial Review | Overview Concept and Origin of Judicial Review Judicial Perspective Methods of Constitutional Review Limitations to Judicial Review Conclusion Judicial Review can be defined as the judiciary’s power to review the legislation made by the Parliament on the Constitution. It falls under the ambit of Judicial Review. Presently, in our country, the Rule of Law is followed… Read More »

Judicial Review | Overview Concept and Origin of Judicial Review Judicial Perspective Methods of Constitutional Review Limitations to Judicial Review Conclusion Judicial Review can be defined as the judiciary’s power to review the legislation made by the Parliament on the Constitution. It falls under the ambit of Judicial Review. Presently, in our country, the Rule of Law is followed which makes the Constitution the supreme law of the land and stands taller than any other laws. Also,...

Judicial Review | Overview

Judicial Review can be defined as the judiciary’s power to review the legislation made by the Parliament on the Constitution. It falls under the ambit of Judicial Review. Presently, in our country, the Rule of Law is followed which makes the Constitution the supreme law of the land and stands taller than any other laws. Also, any statute which is not in consistency with the Supreme Law is held to be void.

Judicial Review creates a system of checks and balances between the Judiciary and the Legislature by giving the judiciary the power to review any law made by the Parliament and further hold it to be void if it is not in consonance with the provisions of the Constitution.

There are two very crucial functions that judicial review sought to perform, first of legitimizing government action, and second, being protecting the constitution by being encroached by the government.

I. Concept and Origin of Judicial Review

While adopting the Constitution by the Constituent Assembly in 1950, no particular provision stated the Constitution to be the leading law of the land. Later it was realised that a declaration of such nature was deemed to be superfluous. There is a system of administration of Powers between the States and the Union. Further, the three branches of the government, the judiciary, executive and the legislature, were differentiated in the powers and the jurisdiction they had. Nobody was expected to interfere with the functioning of the other bodies, as then the distribution of powers will hold no significance. Hence, the supremacy of Constitution has been regarded to be a part of the basic structure of the Indian Constitution, which cannot be severed or destroyed even by the process of Constitutional amendments.[1]

Dissimilar to the provisions of the American Constitution, Article 13 of the Constitution of India establishes for the provision of judicial review to maintain the sanctity of fundamental rights. Alongside, Articles 32 and 226 work in the enforceability of these rights. Judiciary is the only organ of the government that maintain fundamental rights and enforce the supremacy of the Constitution through the means of Judicial Review. Judicial review can be a review regarding any acct or legislation but it is called Constitutional Review when it specifies itself with reviewing the Constitution.

One of the invaluable contributions of the American Constitution to the Indian Constitution is the concept of judicial review. Its origin can be traced back to the result of judicial judgement and has been alive due to the continuance of certain conventions. Chief Justice Marshall of the American Supreme Court was instrumental in developing this concept. The inception of judicial review can be granted to the Marbury v. Madison case[2] in which it was observed that “the constitution is either superior paramount law, unchangeable by ordinary means or it is on a level with ordinary legislative acts and like other acts are alterable when the legislature shall please to alter it.” The power of the judiciary to examine the laws made by the legislature was laid down in this case. If the court did find a law to be in contravention to the principles of the Constitution, then it would be held ultra-vires.

The importance of Judicial Review is that they generate a network of checks and balances on the laws passed by the legislature. One more important feature of Constitutional review is that the higher courts can asses and review the judgements of the lower courts. Its aim is to protect individual rights, create a balance of power in the government and to secure equality for every individual. The concept of civil liberties would not be the same without the inclusion of judicial review.

There were numerous objectives while Judicial Review was formulated by Justice Marshall:

  1. To propagate the concept of supremacy of the Constitution.
  2. For maintaining federal equilibrium i.e. balance of power between states and the centre.
  3. For the protection of the core fundamental rights of the individuals.

II. Judicial Perspective

The Apex Court has immensely widened the scope of judicial review with the case of Maneka Gandhi v. Union of India[3]. The concept of natural justice was accepted by the court as a main ingredient of law thereby importing the American principle of “due process of law” into the Constitution of India.

The backbone which laid the foundation of the reviewing power of the Supreme Court was laid down in the landmark judgement of A.K. Gopalan v. State of Madras.[4] Not only the principle of judicial review was expanded, but at the same time, a set of guidelines were evolved which ultimately would set the pattern for the basic norms of judicial approach to be imbibed in the Constitution. It is a long march from “Gopalan” to “Golaknath” with respect to the scope of the judicial review, but also with regard to the social impact of such review.

Golaknath[5], is one of the most significant cases where the Apex Court opined that the Union Legislature has no right to repudiate the Fundamental rights that are granted by the Constitution through an amendment. It was thus instrumental in making the fundamental rights superior to the parliament and its constituent power. This was only done by using the power of judicial review.

As a consequence of the above cases, finally in March 1994, the Supreme Court in the case of S.R. Bommai v. Union of India[6], which is also famous by the name of Assembly dissolution case, widened the scope of judicial review even further. Presently, judicial review (Constitutional review) is considered to be an essential element of the basic structure of the Indian Constitution.

III. Methods of Constitutional Review

A. Judicial Review

The notion of judicial review is not stated expressly in the Constitution. Still, it has been quite instrument in reviewing the laws and amendments brought to the Constitution. The Constitution has granted the Union Legislature the power to amend the Constitution.[7] The main questions that arise in this regard are, “Can the fundamental rights be amended? Does the word ‘law’ in clause (2) of Article 13 include a Constitutional Amendment for the purpose of judicial review?”

The answer to the question of whether a Constitutional Amendment is a ‘law’ under Article 13 was given by the court in the case of Shankari Prasad v. Union of India.[8] It was observed must only consider an ordinary law and an amendment made to the constitution under will not fall inside the ambit of the law.

Golak Nath case reversed the decision by not accepting any distinction between “legislative” and “constituent” process. In order to remove the difficulty arisen from Golak Nath’s case, the 24th Constitutional Amendment was brought that declared that in Articles 13(4) and 368(3) , the process of amending the Constitution is not ‘law’ and nothing contained in Article 13 shall be applicable to the amendments under Article 368.

Finally, in the case of Kehavanada Bharti[9], the Apex Court laid down the doctrine of “Basic Structure” so that the basic philosophy of the Constitution could not be hampered by the Legislature.

B. Political Review

The sovereignty described in terms of Parliament is termed as Parliamentary Sovereignty. There can be a two-fold way to deal with this supremacy – one may give outright supremacy keeping the Legislative view or decision to the last say in issues of evacuating dull shadows emerging out of trouble in constitutional understanding, and another view keeping or maintaining the parliamentary power in one territory while in different regions the job of parliament might be confined or restricted.

AV Dicey has been instrumental in interpreting Parliamentary sovereignty-

“The Principle of Parliamentary Sovereignty means neither more or less than this: namely that Parliament thus defined has under the English Constitution, the right to make or unmake any law whatever and further no person or body is recognized by the law of England having a right to override or set aside the legislation of Parliament.”

Dicey bestows supreme power in the hands of Parliament for the enactment of laws on any subject and not bound by the scrutiny of any authority. The judges are to only interpret the law. Hence, Dicey disapproves the similarity between ordinary or fundamental laws. It glorifies the supremacy of the Parliament and no law made by the Parliament can either be challenged or amended by any other authority.

Indian Parliament does not have the exact powers of supremacy like that of the British Parliament. It works under the guidance of the Constitution of India and the American concept of judicial review prevails, which creates a system of checks on the Parliament so that it does not become absolute. Therefore, India strikes a balance between judicial review and legislative activism by not giving the Parliament a supremacy over the Constitution of India.

C. Diffuse Model

This model, commonly known as the American Model, is the most widespread model, in which all the courts of a nation review the constitutionality of the laws and legislation with the help of procedural guidelines. The decisions are taken place inter parties only in such a model. And as a definite rule, the matters relating to the constitutionality of legislation is retroactive.

This system has been successful in inspiring various countries in South and Central America, mainly being popular with the federal countries. Several countries haven amended this system by introducing the European model as well, making it a ‘mixed-model’ which is followed by Venezuela, Peru, Brazil among others.

The Diffuse system has a provision in which proceeding is not brought up by the court ex officio but on the basis of the party and the petition filed by it due to the violation of a legal right. This system focuses itself with various courts having the power and authority to decide on constitutional validity of legislation and statutes and no particular court has the absolute power to do that.

D. Concentrated System

This model of judicial review, which is also called the European or the Austrian model is a system utilized by Constitutional Courts that work in the review of the constitutionality of rules[10]. These reviews are concluded in unique proceedings and all things considered, they are less across the board. This model emphasises on the decisions of the constitutional review element convey an erga omnes impact, in that capacity; they may broadcast unconstitutional rules to be nullified. These decisions have an ex nunc result with future genius outcomes. Nations like Costa Rica, Chile, Austria and a few European nations like Germany have adopted this model.

This is a less common approach when it comes to courts reviewing the constitutional status of a statute. In this system, there is a specific constitutional review body which aims at amending and reviewing the provisions of the Constitution. The decisions of the review body have an erga omnes effect and the power to abolish unconstitutional statutes. Even though, the abolishment or the abrogation of the legislation happens only when the Court issues it.

Inspired by the European model, Guatemala introduced a constitutional system of reviewing the constitution. Thus, the Constitutional Court became supreme in having the power to decide the unconstitutionality of statutes.

E. Successive Review

Successive review, also known as Retrospective Review can be understood by looking at the provisions of Article 13(1) of the Constitution. Article 13 expressly puts forward what otherwise would have been implied, i.e. the fundamental rights would hold supremacy over any other law if there is any inconsistency.

Article 13(1) deals with Pre-Constitutional laws, i.e. legislations that are in force at the time of commencement of the Constitution. All laws in force, insofar as they are not in consonance with the fundamental rights, shall, become void to the extent of the inconsistency, from the date of implementation of the Constitution. They are considered void only if the competent court hold them to be void and in contravention of the principles of Constitution.

F. Anticipatory Review

Also known as prospective review, Article 13(2) deals with the future laws, i.e. laws enacted after the enactment of the Indian Constitution. This mean that the parliament is prohibited to make any legislation which is in contravention of the fundamental rights enshrined in Part III of the Constitution.

If a law is made is such contravention, then it shall be void to such extent. This point was elucidated in the case of State of Gujrat v. Ambika Mills Ltd.[11] Where Justice Mathew was of the opinion that similar to a pre-constitutional law not being in contravention to the Constitution was held operative, likewise a post-constitutional law in the same regard would also be held operative. In the present case, the issue that was raised regarding the validity of a law that abridges the fundamental rights of the citizens under Article 19(1)(f) to be void or not.

IV. Limitations to Judicial Review

Even after the vast jurisdiction of the Indian Courts to review legislation passed by the legislature, there are certain limitations to judicial review:

Detention without Charge or Trial and Procedure Established by Law:

Article 22 of the Indian Constitution makes a special case to the major rights by approving the Union Parliament and State Legislatures to make laws accommodating confinement without charge or preliminary of people considered as a danger to security or request.

The words ‘procedure established by law’ were explicit and it was trusted that they would not give any extension for legal veto against transforming enactment. By excellence of what was talked about over, the extent of the legal survey in India isn’t as wide as in the United States. The American Supreme Court can announce any law unconstitutional on the ground of its not being in “due process of law.”

Declaration of Emergency

Another impediment on the intensity of the Supreme Court is the Constitution’s approval of procedures for emergency rule under conditions where national or state security is undermined. Under emergency rule, the forces of the national government, and specifically the forces of the official, over the state governments are definitely extended. Article 358 states that during the proclamation of Emergency under Article 352 the opportunities guaranteed by Article 19 are consequently suspended and would keep on being so far the time of emergency.

The adjournment of rights guaranteed by Article 19 along these lines evacuates limitation on the legislative and official forces of the state forced by the Constitution. If a law is made by the State during this period can’t be tested on the criteria that they are conflicting with the rights guaranteed by Article 19.

Martial Law

Article 34 of the Constitution of India engages Parliament to reimburse by law any individual in the administration of the Centre or a State, or some other individual in regard of any demonstration done by him in relation with the upkeep or rebuilding of order in any place inside the domain of India where Martial Law is in power. It can likewise approve any sentence passed, dispensed, relinquishment ordered or other act done under Martial Law in such area.

Parliament can practice the force under Article 34 if they represent which the indemnity law is to be passed must be connected with the maintenance or restoration of order and the act must have been done while Martial Law was in force.

V. Conclusion

Similar to the case of the American Supreme Court, the Indian Apex Court of India preserves the intensity of legal survey and this force has been clearly perceived by the constitution. Notwithstanding, we observe that its clout corresponding to ‘legal audit’ of application is more limited than that of the Supreme Court of America.

Even though the courts are equipped with the intensity of a legal survey, the equivalent can’t be practised in a self-assertive style. On the off chance that the law-production intensity of parliament isn’t boundless, the courts’ capacity to survey the laws passed by parliament is likewise not boundless. The executive derives its powers from the constitution, similar to various other organs of the government. They can interpret and negate laws yet they can’t accept the law-making capacity; nor would they be able to give that work on any individual or organization other than the government or common councils. Nor does the court have the authority to hold some constitutional that is unconstitutional. One cannot find sovereignty in the legislative or the executive, but only in the constitution itself.

[1] Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.

[2] 2. Led.60.

[3] 1978 AIR 597

[4] 1950 AIR 27

[5] 1967 AIR 1643

[6] 1994 AIR 1918

[7] The Constitution of India, Art. 368.

[8] AIR 1951 SC 458.

[9] AIR 1973 SC 1461

[10] Corrado 2005

[11] AIR 1974 SC 1300.

  1. Meaning Of Law Under Article 13(Opens in a new browser tab)
  2. Introduction to the Constitution of India, 1950(Opens in a new browser tab)
Updated On 8 Jun 2020 10:55 PM GMT
Antariksh Anant

Antariksh Anant

Antariksh is a Law student at RGNUL - Rajiv Gandhi National University of Law Patiala, Punjab, India.

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