Judicial Review in India

  • Constitution itself confers the power of judicial review on the judiciary (both the Supreme Court as well as High Courts)
  • ‘Judicial Review’ has nowhere been used in the Constitution
  • basic feature of the Constitution or an element of the basic structure of the Constitution
  • cannot be curtailed or excluded even by a constitutional amendment Judicial Review

Meaning of Judicial Review

  • power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments
    • constitutional amendments
    • legislation of the Parliament and State Legislatures and subordinate legislations
    • administrative action of the Union and State and authorities under the state
  • E.g- Golaknath case (1967), Kesavananda Bharati case (1973), 99th Constitutional Amendment, 2014 and the National Judicial
    Appointments Commission (NJAC) Act, 2014

Importance

  • uphold the principle of the supremacy of the Constitution
  • maintain federal equilibrium
  • protect the Fundamental Rights

Constitutional Provisions

  • Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void
  • Article 32 guarantees the right to move the Supreme Court for the enforcement of the Fundamental Rights
  • Article 131-original jurisdiction of SC in centre-state and inter-state disputes
  • Article 132-appellate jurisdiction of SC in constitutional cases
  • Article 133-appellate jurisdiction in civil cases
  • Article 134-appellate jurisdiction in criminal cases
  • Article 134-A-certificate for appeal to SC from HC
  • Article 135 empowers SC to exercise the jurisdiction and powers of the Federal Court under any pre-constitution law.
  • Article 136-authorises SC to grant special leave to appeal from any court or tribunal (except military tribunal and court martial)
  • Article 143-President to seek the opinion of the Supreme Court on any question of law or fact and on any pre-constitution legal matters
  • Article 226 empowers the High Courts to issue directions or orders or writs for enforcement of FRs
  • Article 227-Power of HCs except military courts or tribunals
  • Article 245-territorial extent of laws made by Parliament and by the Legislatures of States.
  • Article 246-Union List, State List and Concurrent List
  • Articles 251 and 254-conflict between the central law and state law, the central law prevails over the state law and the state law shall be void
  • Article 372 deals with the continuance in force of the pre-constitution laws

Scope

Constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court or in the High Courts on the following three grounds.

  • it infringes the Fundamental Rights (Part III),
  • it is outside the competence of the authority which has framed it, and
  • it is repugnant to the constitutional provisions.

Judicial Review of the Ninth Schedule

  • Article 31B saves the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of
    contravention of any of the Fundamental Rights.
  • Article 31B along with the Ninth Schedule was added by the 1st Constitutional Amendment Act of 1951.
  • R. Coelho case (2007)- Supreme Court ruled that there could not be any blanket immunity from judicial review of laws
  • Open to challenge in court if they violated Fundamental Rights guaranteed under the Articles 14, 15, 19 and 21 or the ‘basic structure’ of the Constitution.
  • A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine, or it may not.
  • If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment.

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