PES UNIVERSITY OF BANGALORE

KARNATAKA

FACULTY OF LAW

Topic: - “Evolution of Judicial Review in India”

…. YEAR – SEMESTER - … (2024)

NAME: SAADKHAN

COURSE:

ENROLLMENT:
 Evolution of Judicial Review in India

SERIAL. TITLE PAGE.NO.

NO.

1. ABSTRACT 3

2. INTRODUCTION 4
constitutionality of judicial review

3. RESEARCH METHODOLOGY 5

4. LITERATURE REVIEW 6
Aims,analysis, limitation, technical meaning

5. DOCTRINES FORMULATED BY COURT 12

FOR JUDICIAL INTERPRETATION

6. EVOLUTION OF JUDICIAL REVIEW 13

7. CONCLUSION 14

8. BIBLIOGRAPHY 15

2
 Evolution of Judicial Review in India

ABSTRACT

The judicial review in Independent India has come a long way in establishing and carving the
legal structure of India that reflects its Constitutionally mandated regulation that primarily
deals with the protection of Fundamental Rights. Article 13 is the foundation which starts
from the Constitution of India, 1950; it turns into a cornerstone by declaring the
constitutional prevalence and endowing the judicial branch with the banned power of laws
unconstitutional. Through such important precedents like Kesavananda Bharati v. State of
Kerala 1973 cases like the doctrine of basic structure developed thereby defining the
Supreme Court as enhancing its role of controlling amendment by Parliament in the
Constitution. There has also been development of statutory interpretations such as
Administrative Tribunals Act 1985 and Judicial Review of Administrative Action under
Article 32 and 226 to rule executive action unlawful or ultra vires elongating the check and
balance over executive actions as well.

For example, judgments like Navtej Singh Johar v. Union of India (2018) has described the
judiciary as social justice delivering institution through which hateful laws have been
abolished clearing the way for individual liberty and equality before law. The changes in
Indian judicial review have shown the ability of a constitution to be interpreted in connection
with statutes exercised by judges. Indian courts, thus, remain sensitive to the principles of
constitutional law and socialist ideologies and perform the delicate task of creating a balance
between constitutional rights of the citizens, on the one hand, and requirements needed for
proper governance of the country, on the other hand while upholding the principles of rule of
law needed for making a proper legal and judicial framework in the country.

INTRODUCTION

Indian Constitution is blend of American and British Constitution. Indian Parliament is not a
sovereign law making body like its English counterpart. It is owing to this reason that our
constitutional system “wonderfully adopts the via media between the American system of
judicial supremacy and the English principles of parliamentary supremacy”.1 India has
written constitution and has a democratic federal constitution, which is the supreme law of
land and all other laws are subject to this supreme law. The tendency in the growth and
prolixity of the unconstitutional legislation in India unquestionably signifies a matter of great
concern and it requires alertness and determination to cultivate the habit of evading laws in
3
 Evolution of Judicial Review in India

conformity with the Constitution. There is no express provision in the Constitution of India
declaring the Constitution to be the supreme law of land, because they believed that when all
the organs of government, federal and State, owe their origins to the constitution and derive
powers thereform, and the Constitution itself cannot be altered except in the manner
specifically laid down in the Constitution.2

Judicial Review is one of the cardinal features of Indian constitutional system. India has
constitutional and limited democracy which imposes limitations on the power of the
government and banks on majority rule to avoid tyranny and arbitrariness. The Preamble of
the Indian Constitution has promised equality and justice to all citizens of India and have the
laws of India are liable to be tested judicially. The majority rules though the best rule is found
generally to be addicted to tyranny. This is why the existence of some impartial body is
essential for the democracy. The framers of the constitution were aware of the inherent
weaknesses of judicial Review; therefore they tried to define its scope and adopted several
devices to prevent courts from abusing their powers and acting as “super legislature” or
permanent “third chambers”. The Constitution makers of India very wisely incorporated in
the Constitution itself, the provisions of Judicial Review so as to maintain the balance of
federalism, to protect the fundamental rights guaranteed to the citizens and to afford a useful
weapon for equality, and freedom. So observed Patanjali Sastri, J., in State of Madras v. Rao,
Justice Khanna, former judges of the Supreme Court of India has in his book “Judicial
Review or confrontation”.made the following in this “Judicial Review has constitutional
system and a power has been vested in the High Court and Supreme Court to decide about the
constitutional validity of the provision of the statutes”. The Constitution of India explicitly
establishes the doctrine of Judicial Review in several Articles, such as 13, 32, 131, 136, 143,
226 and 246. Article 13(2) says that “the State shall not make any law which takes away or
abridges the right conferred by this part and law made in contraventions of this clause shall,
to the extent of the contravention, be void”. But the law relating to judicial review has
modified by the Constitution. The doctrine of Judicial Review is not a revelation to the
modern World1

Judicial review and apex courts determine the constitutionality:

Our Constitution envisages that only two65 Courts shall be competent to determine the
constitutionality of laws, namely, the Supreme Court and the High of a state. Our federal not
1
Bhatia, Ravi P. “EVOLUTION OF JUDICIAL ACTIVISM IN INDIA.” Journal of the Indian Law Institute 45,
no. 2 (2003).
4
 Evolution of Judicial Review in India

being based on the theory of sovereignty of the State, no artificial distinction is made between
State and federal laws, either as regards their application or administration or as regards
litigation to test their validity. It follows; therefore, the Supreme Court and a High Court are
entitled to examine the validity of laws under their respective constitutional jurisdictions,
whether they are Union or State laws. In India, the instrumentalities of judicial review are of
two kinds: (a) Those founded on the ordinary law, such as a declaratory action, which is
governed by Section 34 of the Specific Relief Act, 1963. (b) Those provided by the
Constitution, e.g., the writ jurisdiction under Article 32 and 226: appeal. It would be
convenient to discuss these different powers of judicial review of constitutionality with
reference to the Courts which are entitled to exercise them

Judicial review and ninth schedule:

The ninth schedule was included in the Indian Constitution by Constitution (first
Amendment) Act, 1951, along with Article 31-B. It provides that none of the Acts and
Regulations included in the ninth schedule to the Constitution shall be deemed to be void on
the ground that they are inconsistent with any of the rights conferred by Part-III of the
Constitution. In effect, the sole purpose of the ninth schedule read with Article 31-B is to save
the Acts passed by the legislature from the power of the judicial review of the courts. In
Shankari Prasad‟s case, the Supreme Court upheld the constitutional validity of the ninth
schedule. In order to overcome the verdict given in the case of Kameswar Singh, and to carry
out the agrarian reforms in a country, Parliament in the first instance brought 1st amendment
by which they added Article 31-Aand 31-B read with ninth schedule to reduce the power of
judiciary to question of the constitutional validity of the land reforms legislations. Thereby
Article 31-B 69 and ninth schedule made controlled Constitution into uncontrolled. The
constitutional amendments by which certain legislative Acts have been included in ninth
schedule of the constitution, intend also to include all the antecedent and subsequent
amendment of these legislative Acts. But in many cases the principal Acts alone have
incorporated in in ninth schedule of the constitution and the amending acts have not been
included therein. The Supreme Court has held that amending acts as well as the original
statutes would be deemed to be included in ninth schedule. The reason is that ordinarily if an
Act is referred to by its title it is intended to refer to that Act with all the amendments made in
it up to the date of reference.

Article 31-A was inserted as an immunity from judicial review of the acquisition law
regarding State and also the law regarding management of any property for a limited period,
5
 Evolution of Judicial Review in India

extinguishment or modification of any property for a management and amalgamation of

corporation etc. This Article debars judicial review of a legislative Act relating to agrarian
reforms.

Article 31-B is a mechanical Article which provides that any legislative Act or its provision,
which is added in ninth schedule, is immune from judicial review. This Article is very drastic
and is a political device to fetter the hands of the court in determining legislative lapses. The
rule made under such statutes and Regulations are immune from judicial scrutiny.

RESEARCH METHOLOGY

The research methodology for judicial review in India employs a qualitative approach with a
mixed-methods design, combining doctrinal and empirical research. The study involves a
comprehensive analysis of case law, legislative provisions,

The research aims to explore the grounds for judicial review, its evolution, key principles,
and effectiveness in protecting individual rights and promoting accountability. The study
utilizes legal databases, research software, and statistical tools to ensure a systematic and
rigorous approach

This paper aims to uncover the roots and evolution of the judicial review system in India .In
order to identify and examine the major constitutional provisions that formalize and define
the power of judicial review in Indian law. To examine how key constitutional rulings of the
Supreme Court have shaped the development of and meanings attached to judicial control. To
understand the function of judicial review in protecting the checks and balances between
three arms of government in India. In order to assess the modern issues and future UDR
perspectives regarding Indian democracy.

RESEARCH QUESTION

1. What is judicial review?

2. What are the doctrine formulated by court for judicial review?
3. Evolution of judicial review in India?

RESEARCH PROBLEMS

1. The Expansion of Judicial Review: From Constitutional Interpretation to Socio-

Economic Rights

6
 Evolution of Judicial Review in India

Research Problem: What has been the extension of how far and in what manner the judicial
review has come up with in India, starting from constitutionalism to the enforcement of socio
economic rights? This problem includes analysing the great decisions that have broaden the
role of the judiciary as an interpreter of laws and constitution that not only scrutinized and
limited legislative encroachment on the basic structures of government but also the executive
actions regarding rights and socio- economic policies. The scope of the research can lie in the
effects it causes to the power dynamics between branches of government and effects on social
justice in India.

2. Judicial Activism vs. Judicial Restraint: The Doctrine in its Expansion: The Indian
Judicial Activism

Research Problem: In what manner has the Indian judiciary managed judicial activism and
judicial self-restraint in the application of judicial REVIEW? This problem would concern
maestro some of the important cases that relate to the extent to which judiciary has interfered
with the policy-making process through judicial activism or avoided doing so to allow
legislatures and executives branches to go about their work. Ideally, the research could extend
the analysis to identify the various dynamics that might have shaped the judiciary‟s approach
over time: political, social, and economic conditions under which judicial review was either
given more or fewer occasions to do its work; further the ongoing controversy over the
proper sphere of the judicial review function for a democratic society.

LITERATURE REVIEW

The module on judicial review has been discussed under three broad sections. The first
section discusses some of the general issues of the concept of judicial review. The second
section traces the journey of judicial review in major India. Indian understanding has been
given more detailed treatment. In this section the Indian concept of basic structure doctrine
has been specially discussed. The next section tries to identify limitations on judicial review.
Knowledge of Concept of Judicial review, Identification of various factors in judicial review.

7
 Evolution of Judicial Review in India

Understanding the approach of judiciary in area of judicial review. Appreciation of recent

issues in judicial review2

Aims and objective of judicial review:

The object of judicial review is to ensure that the authority does not abuse its power and the
individual receives just and fair treatment and not to ensure that the authority reaches a
conclusion which incorrect in the eye of law. In Minerva Mills Ltd. v. Union of India, the
Constitution has created an independent judiciary which is vested with the power of judicial
review to determine the legality of administrative action and validity of legislation. It is the
solemn duty of the judiciary under the Constitution to keep different organs of the State
within the limits of the power conferred upon them by the constitution by exercising the
power of judicial review as sentinel on the qui vive. Therefore, judicial review aims to protect
citizen from abuse or misuse of power by any branch of the State.

LIMITATIONS ON JUDICIAL REVIEW

Limitations on judicial review are, generally, either express or implied. Express limitation
means a limitation which is expressly provided under the law. For example, the First
Amendment introduced article 31- A and article 31- B, and inserted the Ninth Schedule into
the Constitution. Article 31-A protects certain land laws from challenges on the ground of
violation of Fundamental Rights. This article debars judicial review of law relating to
agrarian reform. Article 31-B provides that without prejudice to the generality of the
provision of article 31-A, any law placed in the Ninth Schedule would be immune from any
attack based on the violation of Fundamental Rights. In other words, the court cannot review
any law placed under Ninth Schedule on the ground of violation of Fundamental Rights

Implied limitation refers to those situations where, though prohibition is not mentioned in
clear words under the law, but the court refuses to entertain the issue as matter of
prudence. Policy decisions of the government and cases involving political question, are two
main areas where the court, generally decline to review. Policy decisions are the area
assigned to the executive and it is solemn duty of the judiciary while exercising the power of
judicial review, not to enter the area assigned to other, whether legislature or executive. Since
beginning, the judiciary has declined to interfere with the policy of the executive.

2
Singh, Pritam. “JUDICIARY AND CONSTITUTIONAL EVOLUTION IN INDIA: A SELECT
BIBLIOGRAPHY.” The Indian Journal of Political Science 34, no. 3 (1973).
8
 Evolution of Judicial Review in India

The Supreme Court said that „we are conscious of the fact the court should not interfere with
the fiscal policies of the state. However, when it is clearly demonstrated that the policy
framed by the state and its implementation is contrary to public interest or is violate of the
constitutional principles, it is duty of the court to exercise its jurisdiction in larger public
interests…‟.The court, of course, can check the legality of a policy, but goodness or badness
of a policy should not be the area of judicial review. Therefore, this judgement was widely
criticised and the Supreme Court reiterated traditional understanding of the restraint vis-a-vis
policy matters when the President sought advisory of the Supreme Court in this connection.
In Baker v Carr, this doctrine was given firm foundation when the Court held that the conduct
of foreign relation is the sole responsibility of the executive branch and the court should not
hear cases which deal directly with issues that Constitution makes the sole responsibility of
the other branches of government. Since, Indian Constitution recognizes doctrine of
separation of power; it is expected from the Supreme Court to follow the doctrine of political
question. But of late the expanded form of judicial review i.e., judicial activism, has eroded
this limitation3

ANALYSIS
The concept of judicial review ensures check and balances in State. The concept, although
present in all democratic society, is more pronounced in societies having written constitution.
In most of the written constitutions it runs as central theme controlling State‟s power. Over a
period of time it has developed as perhaps most effective tool for protection of liberties of
citizens against the might of State. The concept has also seen unique innovation in Indian
Scenario, with the development of „basic structure doctrine‟.

The concept has also seen its share of controversies, wherein a case against judicial
overreach is made. It must be appreciated that this concept of judicial review also has certain
limitations within which it must operate. It can be done through exercise of judicial restraint
only because any external limitation can be disastrous. We must be circumspect in providing
for limitations on judicial review lest it becomes a classic case of throwing baby with

3
Patnaik, S. K., and Swaleha Akhtar. “JUDICIAL ACTIVISM IN INDIA : MYTH AND REALITY.” The
Indian Journal of Political Science 58, no. 1/4 (1997).

9
 Evolution of Judicial Review in India

bathwater.4

MEANING OF JUDICIAL REVIEW

The dictionary meaning of review is “the act of looking over something (again) with a view
to correction or improvement”9 The primary legal meaning of the term, accordingly, is the
revision of the sentence or decree of one court by a higher court.

But the review of inferior judicial pronouncements by a higher tribunal, which is analogous
to appeal, has no particular importance in Constitutional law. It appertains to the judicial
administration, in some form or other, of every modern country, irrespective of the nature of
its constitutional system, and has no bearing on public law in particular. As soon as it is
assumed that there is a paramount law which constitutes the foundation and source of all
other legislative authorities in the body politic, it follows that any act of the ordinary law-
making bodies which contravenes the provisions of the paramount law, must be void and that
there must be some organ which is to posses the authority or power to pronounce such
legislative acts as void A judicial review of administrative acts may take place not only on the
ground of repugnance to the paramount law but also of repugnance to the ordinary law. The
ordinary or statute law of the land is the source of administrative authority in a vast field and
the doctrine of ultra-vires is perhaps more deep-seated and widespread in the realm of
ordinary law than in the realm of constitutional law. In fact, it is the English doctrine of
ultravires in the sphere of ordinary law which offered the source of inspiration to those who
invented the doctrine of judicial review in the public sphere.5

JUDICIAL REVIEW IN HISTORICAL INTERPRETATION :

A historical interpretation of the constitution evolution of India, England, the united State of
America, Canada and Australia becomes necessary in order to appreciate the growth,
functioning and practical operation of judicial review. The system of judicial review in India
too is not an event of sudden emergence but it has a gradual evolution which predominantly
depended on the constitutional thoughts and ideas in the different stages of the constitutional
evolution in India. The constitutional growth the United States of America reveals that the

4
Bilder, Mary Sarah. “The Corporate Origins of Judicial Review.” The Yale Law Journal 116, no. 3 (2006).
5
Rao, V. Nageswara, and G.B. Reddy. “DOCTRINE OF JUDICIAL REVIEW AND TRIBUNALS : SPEED
BREAKERS AHEAD.” Journal of the Indian Law Institute 39, no. 2/4 (1997).

10
 Evolution of Judicial Review in India

legislative powers were subjected to constitutional limitations and restriction at each stage of
its growth. In India, since the enactment of Government of India Act, 1858 to the
Government of India Act, 1935, the Indian legislature was subordinate to the English
Parliament and any legislative Acts in India in contravention of the parliamentary directions
and restrictions were void. By the Government of India Act of 1935 federalism was
introduced which led to the expansion of the concept of judicial review in India. From 1885,
when Indian National Congress was established, to the inauguration of the Indian Republic
there were constant and vigorous agitations, for the establishment of federalism and for the
State recognition of fundamental rights. India which had the heritage of the Rule of Law from
ancient India acted strenuously and assiduously towards establishing the judicial control of
the legislative powers.6

As result the provision for judicial were incorporated in the constitution itself.

Some important doctrines formulated by Courts through the judicial

interpretation: Judicial review in India is based on various dimensions like judicial
review of legislative, executive and judicial acts which are clearly provided some doctrines
such as:

Doctrine of Severability: Under Article 13 of the constitution incorporates this doctrine. In

Art.13 the word “to the extent of contravention” are the basis of doctrine of severability. This
doctrine enumerates that the court can separate the offending part unconstitutional of the
impugned legislation from the rest of its legislation. Other parts of the legislation shall remain
operative, if that is possible. This doctrine has been considerations of equality and prudence.
It the valid and invalid parts are so inextricably mixed up that they cannot be separated the
entire provision is to be void. This is known as “doctrine of severability”.

In A.K. Gopalan v. State of Madras case, section 14 of prevention Detention Act was
founded out to be in violation of Article 14 of the constitution. It was also held that it
is section 14 of the Act which is to be struck down not the act as a whole. It was also
held that the omission of section 14 the Act will not change the object of the Act and
hence it is severable. In State of Bombay v. F.N. Balsara, eight sections of the
Bombay Prohibition Act, 1949, were held ultra vires on the ground that they infringed
the fundamental right of the citizens. But the Act, minus the invalid provisions, was

6
Rao, P.P., and Ananth Padmanabhan. “LEGISLATIVE CIRCUMVENTION OF JUDICIAL RESTRICTIONS
ON RESERVATIONS: POLITICAL IMPLICATIONS.” National Law School of India Review, 2013.
11
 Evolution of Judicial Review in India

allowed to stand. The Court said: “The decision declaring some of the provisions of
the Act to be invalid do not affect the validity of the Act as it remains”. The rule that
the invalidity is only to the extent of inconsistency is not peculiar to Article 13, but is
a general principle of statutory interpretation.7

Doctrine of Waiver: The question of waiving of fundamental rights arose in Bashesher Nath
v. I.T. Commissioner. In this case, the petitioner regarding Income Tax had been referred to
the Income Tax Commissioner under Section 5(1) of the Income Tax Act, 1947 and it was
found that he had concealed a large amount of his income. In order to escape from heavy
punishment, he agreed as a settlement under section 5-A of the Act to pay Rs. 3 lack in in
installments by way of arrears of tax and penalty.

In the meantime the Supreme Court in another case, declared section 5 of Income Tax
Act, 1947 ultra vires of the Constitution as it was inconsistent with the fundamental rights
laid down in Article 14. The assesses accordingly, invited the Court to hold that he was
absolved of his obligation under the settlement. The respondent (I.T. Commissioner) on
the other hand contended that the assesses had waived his right under Article 14 by
making a settlement. Three different judgments were delivered by the Supreme Court.

1. Bhagwati and Subba Rao JJ., held that it is not open to a citizen to waive any of the
fundamental rights conferred by Part-III of the Constitution.

2. S.R. Das C.J., and Kapur J., confined their decision to the fundamental right actually
involved in the case and held that the right under Article 14 cannot be waived.

3. S.K. Das J., who dissented, held that where a right or privilege guaranteed by the
Constitution rests in the individual and is primarily intended for his benefit, it can be
waived, provided such waiving is not forbidden by law and does not contravene public
policy or public moral.

Thus as per majority, it was held that fundamental rights are not to be waived.

In Kerala Education Bill, 1957,29 also the Supreme Court had held that a fundamental right
cannot be lost or deemed to have been waived merely on the ground that such right cannot be
exercised

7
Cappelletti, Mauro. “Judicial Review in Comparative Perspective.” California Law Review 58, no. 5 (1970).

12
 Evolution of Judicial Review in India

(c) Doctrine of eclipse: An existing law inconsistent with a fundamental right, though
becomes inoperative from the date of the commencement of the Constitution, is not dead
altogether. “It is overshadowed by the fundamental right and remains dormant, but is not
dead. t is a good law if a question arises for determination of rights and obligations incurred
before the commencement of the Constitution, and also for the determination of rights of
persons who have not been given fundamental rights by the Constitution. This has led the
Supreme Court toapply to the existing laws. i.e. the Pre-Constitution laws, what may be
described as the doctrine of eclipse. According to this doctrine, an existing law, i.e., a law
made before the commencement of the Constitution, remains eclipsed or dormant to the
extent it comes under the shadow of the fundamental right, i.e., is inconsistent with it, but the
eclipsed or dormant parts become operative and effective again if the prohibition brought
about by the fundamental right is removed by an amendment of the Constitution. The
Supreme Court decision in Bhikaji Narain Dhakras v. State of M.P., is a good illustration of
the application of the rule.

In that case an existing State Law authorized the State Government to exclude all private
motor transport operators from the field of transport business. Parts of this law became void
on the commencement of the Constitution as it infringed the provisions of Article 19(1)(g) of
the Constitution and could not be justified under the provisions of clause (6) of Article 19. In
1951, clause (6) of Article 19 was Government to monopolize any business. The Supreme
Court held that after the amendment of clause (6) of Article 19, on June 18, 1951, the
constitutional impediment was removed and the impugned Act ceased to be unconstitutional
and became operative and enforceable The doctrine of eclipse which at one time was
supposed to be applicable only to preConstitution laws, but now it has extended to post-
Constitution laws also.

(d) Doctrine of prospective overruling: The basic meaning of prospective overruling is to

construe an earlier decision in a way so as to suit the present day needs, but in such a way
that it does not create a binding effect upon the parties to the case or other parties bound by
the precedent. The use of this doctrine overrules an earlier laid down precedent with effect
limited to future cases and all the events that occurred before it are bound by the old
precedent itself. In simpler terms it means that the court is laying down a new law for the
future. This doctrine was propounded in India in the case of GolakNathv. State of Punjab,36
the court overruled the decisions laid down in Sajjan Singh37 and Shankari Prasad38 cases
and propounded doctrine of prospective overruling. The judges of Supreme Court of India
laid down its view on this doctrine in very substantive way, by saying “The doctrine of
13
 Evolution of Judicial Review in India

prospective overruling is a modern doctrine suitable for a fast moving society”. The Supreme
Court applied the doctrine of prospective overruling and held that this decision will have only
prospective operation and therefore, the first, fourth and nineteenth amendment will continue
to be valid.

(e) Doctrine of colourable legislation: This doctrine was applied by Mohajan J. in

Dwakadas v, Sholapur Co.,40 to determine whether the Sholapur Spinning Company
(Emergency Provisions) Ordinance, 1950 contravened the provision of Article 31 (2) , as it
then stood: “In order to decide these issues, it is necessary to examine with some strictness
the substance of the legislation for the purpose of determining what it is that the legislature
has really done; the court, when such questions arise, is not over persuaded by the mere
appearance of the legislation. In relation constitutional prohibitions binding a legislative it is
clear that the legislative cannot disobey the prohibitions merely by employing indirect
method of achieving exactly the same result. Therefore, in all such cases the court has to
look behind the names, forms and appearance to discover the true character and nature of
the legislation. The doctrine has it application both as regards limitations on the legislative
competence of a legislature under a federal system as well as other constitutional limitation,
such as fundamental rights, which cannot be transgressed by the legislature.

Its application with respect to legislative power will be dealt with separately under Part-XI,
post. In the present contex, we shall discuss its bearing on constitutionality on the ground of
contravention of fundamental rights. It has been applied by our Supreme Court in the case of
Gajapati v. State of Orissa “The doctrine of colorable legislation does not involve any
question of bona fides or mala fides on the part of legislature.The whole doctrine resolves
itself to pass a particular law, the motives which impelled it to act are really irrelevant. On the
other hand, if the legislature lacks competency, the question of motive does not arise at all.
Whether a statute is constitutional or not is thus always a question of power”

Judicial Review in India:

Judicial Review is the power of courts to pronounce upon the constitutionality of legislative
acts which fall within their normal jurisdiction to enforce and the power to refuse to enforce
such as they find to be unconstitutional and hence void. “Judicial Review” said Khanna, J., in
the Fundamental Rights case, “has thus become an integral part of our Constitutional System
and a power has been vested in the High Courts and the Supreme Court to decide about the
constitutional validity of the provisions of statutes. If the provisions of the statutes are found
to be violative of any of the articles of the Constitution which is the touchstone for the

14
 Evolution of Judicial Review in India

validity of all laws the Supreme Court and the High Courts are empowered to strike down the
said provision”

That power corrupts a man and absolute power corrupts absolutely which ultimately leads to
tyranny, anarchy and chaos has been sufficiently established in course of evolution of human
history, and all round attempts have been made to erect institutional limitations on its
exercise. When Montesquieu gave his doctrine of separation of power, he has obviously
moved by his desire to put a curb on absolute and uncontrollable power in any one organ of
the Government. A legislature, an executive and a judicial power comprehend the whole of
what of what is meant and understood by Government. It is by balancing each of these two
powers against the other two that the efforts in human nature towards tyranny can alone be
checked and restrained and any freedom preserved in the Constitution. Judicial Review is
thus the interpretation of judicial restraint on the legislative as well as the executive organs of
the Government. The concept has the origin in the theory of limited Government and in the
theory of two laws such as an ordinary and supreme (i.e., the Constitution). From the very
assumption that there is a supreme law which constitutes the foundation and source of other
legislative authorities in the body policy, it proceeds that any act of the ordinary law-making
bodies which contravenes the provisions of the supreme law must be void and there must be
some organ which is to possess the power or authority to pronounce such legislative acts
void.53 Generally the judicial review in India is explicitly in two dimensions such as
administrative action and of legislation. These two kinds of review have thus much in
common in their origin and rationale, they have branched off basically from each other and
their development has been on different lines. Apart from the fact the judicial review of
administrative action had originated and developed much earlier than the judicial review of
legislation, the nature and scope of two has become basically different from each other.

Historical Background and Origin of Judicial Review in India

Role of the British Legal System

The main principle of judicial review in India has historical connection with the British legal
system that was imported to India during the colonial period. British colonial government
introduced courts in India which were based on common law and thus the principles like rule
of law and adherent separation of power existed. These principles formed the bases of judicial
reviews of legislations and executive actions or inactions. Some of the exceptional English
cases and legal principles inspired the socio-political development of Indian jurisprudence
15
 Evolution of Judicial Review in India

including the proposition that courts can and must interpret the laws in order to determine
whether or not they are constitutional. This tradition of legal thinking has laid down the
foundations of the newly independent India‟s legal system and the constitutional provision of
judicial review as a check and balance on the powers of the government.8

Integration of Judicial review in Indian Constitution Although the Constituent Assembly

was drafting the Constitution of India, they knew the need for having the checks and balances
among the branches of the government and they included the method of the judicial review
on purpose. The provisions such as Article 13 clearly avails the role of the judiciary in
annulling laws that go against the fundamental rights provided for in the Constitution. This
decision was precipitated not only by the British legal influences but also by other countries
that embraced democracy which include the American society, where the judicial review
formed a basis of supremacy of the constitution. The framers assumed a court system of
justice capable of protecting the Constitution and guarding legislation and executive actions
from violating the constitutional provisions and citizens‟ rights.9
Now the position is that the so-called “Federal Court” will carry out and the “Privy Council”
will confirm that suits against the should be allowed.

Before the year of independence the Federal court of India and the judicial committee of the
privilege council were responsible for the formation of the judicial review in India. Created
under the Government of India Act, 1935, the Federal Court possessed the power of resolving
controversies between provinces and determine the impact of the constitutional provisions
that helped in laying down benchmarks concerning the review of legislative measures by the
courts. The Privy Council stated these principles more strongly as the leading appellate form
and supported such principles not only in written judgements but also through highlighting
more of legalistic approach and protection of rights.10

Judicial review of legislation:

8
HILBINK, LISA. “THE ORIGINS OF POSITIVE JUDICIAL INDEPENDENCE.” World Politics 64, no. 4
(2012).
9
Kumar, Virendra. “STATEMENT OF INDIAN LAW-SUPREME COURT OF INDIA THROUGHITS
CONSTITUTION BENCH DECISIONS SINCE 1950. A JURISTIC REVIEW OF ITS INTRINSIC VALUE
AND JUXTAPOSITION.” Journal of the Indian Law Institute 58, no. 2 (2016).
10
Kannabiran, Kalpana. “„WHAT USE IS POETRY?‟ EXCAVATING TONGUES OF JUSTICE AROUND
NAVTEJ SINGH JOHAR V. UNION OF INDIA.” National Law School of India Review 31, no. 1 (2019).

16
 Evolution of Judicial Review in India

The judicial review of legislation did not take root in England but in other countries like
United States and India, the judicial review of legislation becomes an essential part of the
constitutional system and a higher rule of law. Firstly, the federal system which is based on
the distribution of legislative and executive powers between the Centre and the States cannot
function, smoothly without resort to judicial review of legislation, when necessary. Secondly,
the regional and linguistic diversities in India also make it desirable that an independent and
impartial judiciary should be established by the constitution so that the fundamental Rights of
the individual and minorities shall be placed beyond the pale of ordinary legislation. It is
inadequacy of the judicial review of administrative action to give protection against
legislative invasions of liberties of the individual which accounts for the simultaneous
expansion of the judicial review of legislation. The impetus was given when the inviolability
of the basic human rights was first recognized by the United Nations in approving the
Universal Declaration of Human Rights in 1948. Since these were to be above the reach of
ordinary laws, it was implied that the courts should protect them by exercising the power of
judicial review of legislation. In the development of the human rights which had an impact on
the growth of judicial review of legislation.11

Justice Bhagwati’s argument in Minerva Mills case, that “effective alternate institutional
mechanisms or arrangements to exercise the power of judicial review could be created by
Parliament. He put forth the following argument: “….The constitutional safeguards which
ensure the independence of the judges of the superior judiciary are not available to the judges
of the subordinate judiciary or to those who man tribunals created by ordinary legislations.
Consequently, judges of the latter category can never be considered full and effective
substitutes for the superior judiciary in discharging the function of constitutional
interpretation. We, therefore, hold that the power of judicial review over legislative action
vested in the High Court‟s under Article 226 and in this Court under Article 32 of the
Constitution is an integral and essential feature of the Constitution, constituting part of its
basic structure. Ordinarily, therefore, the power of the High Courts and Supreme Court to test
the constitutional validity of legislations can never be ousted or excluded”.

In I.R. Coelho v. State of Tamil Nadu case, the petitioner had challenged the various Central
and State laws put in the Ninth Schedule including the Tamil Nadu Reservation Act. The Nine
Judges Bench held that “any law placed in the Ninth Schedule after April 24, 1973 when

11
Urs, Priya. “Making Comparative Constitutional Law Work: „Naz Foundation‟ and the Constitution of India.”
Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America 46, no. 1 (2013).
17
 Evolution of Judicial Review in India

Keshvananda Bharati‟s case judgment was delivered will open to challenge, the court said
that the validity of any Ninth Schedule law has been upheld by the Supreme Court and it
would not be open to challenge it again, but if a law is held to be violation of fundamental
rights incorporated in Ninth Schedule after the judgment date of Keshvanand Bharati‟s case,
such a violation shall be open to challenge on the ground that it destroy or damages the basic
structure of constitution”. The Supreme Court observed that “Judicial Review of legislative
actions on the touchstone of the basic structure of the constitution”.

In recent judgment of Madras Bar Association v. Union of India, the Supreme Court
scrutinized the provisions of Companies Act, 1956 and declared some provision ultra vires. In
this case the petitioner challenges the constitution of NCLT and NACLT and also challenges
the formation of the Committee, the appointment of the judicial members as well as the
technical members. Section 409(3)(a), Section 409(3)(c), Section 411(3) and section 412(2)
are the provision which incorporates the Constitution of Board of company law
administration. The Supreme Court upheld the validity of NCLT and NACLT, but declared
the above mentioned provisions ultra vires and held that these provisions are unconstitutional
in nature on the ground that any institution performing a judicial function should be
constituted of members having judicial experience and expertise and thus judicial member
were to exceed the technical members so as to maintain the essential feature of that constitution.

Judicial review of administration action:

Public authorities today affect the rights of the public in the course of their functioning. This
is done through administration action. To promote rule of law, it is necessary that there should
be an effective control and redressal mechanism over the administration. This the only way to
in still responsibility and accountability in the administration and make it law abiding.
Redressal can be done in the way of appeal against the administrative action when redressal
mechanism is provided. In absence of such mechanism, the action can be challenged before
the courts. This is not an appeal, but a request for reviewing the administrative. According to
Wade, “Judicial review thus, is fundamental mechanism rule of law”.60 Without some kind
of judicial power to control administrative authorities, there is a danger that they may be
tempted to commit excesses and degenerate into arbitrary bodies. Such a development would
be inimical to democratic constitution and the concept of rule of law. The courts develop the
norms for administrative behavior, adjudicate upon individual grievances against the

18
 Evolution of Judicial Review in India

administration, give relief to the aggrieved person in suitable cases and in the process control
the administration.

In State of UP v, Johri Mal, the Supreme Court succinctly explained the scope of judicial
review in the following way:

(i) Courts, while exercising the power of judicial review, do not sit in appeal over the
decisions of administrative bodies.
(ii) A petition for a judicial review would lie only on certain well defined ground.
(iii) An order passed by an administrative authority exercising discretion vested in it,
cannot be interfered in judicial review unless it is shown that exercise of discretion
itself is perverse or illegal.
(iv) A mere wrong decision without anything more is just enough to attract the power of
judicial review, the supervisory jurisdiction conferred on a court is limited to seeing
that the Tribunal functions within the limits of its authority and that its decisions do
not occasion miscarriage of justice.
(v) The courts cannot be called upon to undertake the government duties and functions.
The court shall not ordinarily interfere with a policy decision of the State. Social and
economic belief of a judge should not be invoked as a substitute for the judgment of
the legislative bodies.

The Supreme Court in the case of Tata Cellular v. Union of India, laid down the test for
judicial review of administrative action:

(i) Whether decision making authority exceeded its powers?

(ii) Committed an error of law;
(iii) Committed breach of the rules of natural justice;
(iv) Reached a decision which no reasonable tribunal would have reached; or
(v) Abused its power. In India, the courts interfere with the discretionary power
exercised by the administration in either of these circumstances- (1) Failure to
exercise discretion; or (2) Excess/abuse of discretion. Shortly put, the ground upon
which an administrative action is subject to control by judicial review can be
classified as under:

CONCLUSION

19
 Evolution of Judicial Review in India

Under the Indian Constitution, there is a specific provision in Article 13(2) that the State shall
not make any law which takes away or abridges the fundamental rights enshrined in the
Constitution, and any law made in contravention of this provision shall, to the extent of
inconsistency, be void. The inclusion of this provision appears to be due to abundant caution,
because even in the absence of such a provision, the courts would still have the power to
examine the constitutionality of a law on ground of infringement of fundamental rights. This
is so because the judges are bound by oath to uphold the Constitution and the courts can be
approached for the enforcement of the fundamental rights. One of the unique features of the
Constitution is that a person has a fundamental right to approach the Supreme Court.
Moreover wide original and appellate jurisdiction has been given to the Supreme Court and
High Courts to adjudicate on the constitutionality of any (legislative or executive) actions.
Judicial review in India is based on the assumption that Constitution is the supreme law of
land. It is the power of apex courts to review the action against legislature, executive as well
as the judiciary. It has been extended to reviewability of constitutional amendments by the
doctrine of the „basic structure‟ of the constitution through the verdicts era from Gopalan to
Golok Nath and Keshavananda Bharati to I.R. Coelho. The framers of our Constitution were
aware of the inherent weaknesses of judicial review; therefore they tried to define its scope
and adopted several devices to prevent courts from abusing their powers and acting as
“supper legislature” or “permanent “third chambers”.According to the Indian Constitutional
commenter, D.D. Basu, our Constitution adopts the viamedia between American systems of
judicial supremacy and the English principle of parliament supremacy; by endowing the
judiciary with the power of declaring a law unconstitutional if it is beyond the legislative
competency, i.e. when legislature over steps its assigned field or violates fundamental rights,
but it has no power to review the wisdom of legislative policy.77 With the form of quasi-
federal/quasi-unitary our Constitution, judiciary should be protected the fundamental rights of
the people as an armor in the light of human right norms when the functioning the power of
judicial review. Lastly, Supreme Court of India as the guardian of our Constitution, with the
power of judicial review it may extends to adjudicating upon the constitutionality of
legislation and the legality executive action.

BIBLIOGRAPHY

Books

1. Constitutional Law of India

20
 Evolution of Judicial Review in India

- M.P. Jain, Constitutional Law of India (LexisNexis, 2020).

2. The Indian Constitution: Cornerstone of a Nation

- Granville Austin, *The Indian Constitution: Cornerstone of a Nation (Oxford University

Press, 1999).

Journal Articles

1. "Judicial Review and the Basic Structure Doctrine"

- S. Choudhury, "Judicial Review and the Basic Structure Doctrine"* (2019) 11 Indian
Journal of Constitutional Law 45-67.

2. "The Evolution of Judicial Review in India: An Analytical Perspective"

- R. Sharma, "The Evolution of Judicial Review in India: An Analytical Perspective" (2020)

15 Journal of Indian Law and Society 112-134.

3. "Technology and Judicial Review: The Indian Experience"

Case Law

1. A.K. Gopalan v. State of Madras

- A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

2. Keshavananda Bharati v. State of Kerala

- Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

3. Minerva Mills v. Union of India

- Minerva Mills v. Union of India, AIR 1980 SC 1789.

4. Shankari Prasad v. Union of India

- Shankari Prasad v. Union of India, AIR 1951 SC 458.

5. Indian Council for Enviro-Legal Action v. Union of India

- Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.

Statutes and Constitutional Provisions

21
 Evolution of Judicial Review in India

1. Constitution of India

2. The Land Acquisition Act, 1894

3. The Indian Evidence Act, 1872

22