Judiciary’s Long Tentacles And The Power Of Judicial Review

Posted on September 11, 2011 in Specials

By Vanshika Chaudhary:

Judicial review has been adopted in the Constitution of India from the Constitution of the United States of America. Under the Constitution of India, Parliament is not referred to as the Supreme power instead the power is divided between centre and states. The Supreme Court in India is entrusted with the power of reviewing legislative enactments both of Parliament and the State Legislatures. The Judiciary acts as the protector of the constitutional vales and tries to provide every citizen their rights under the Directive Principles of State Policy.

India has opted for Parliamentary form of democracy, in which every section is involved in policy-making and decision taking so that every class of the Indian Society is represented. And in this type of democracy, the judiciary plays a very important role. The constitutional provisions which guarantee judicial review of legislations are 13, 32,131-136,143,145,226,246,251,254 and 372.

Article 13 establishes that any law which contravenes any of the provisions of the part of Fundamental Rights shall be void.

Article 372 establishes the judicial review of the pre-constitution legislation.

Article 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.

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. The legitimacy of any legislation can be challenged in the court of law on the ground that the legislature is not competent enough to pass a law on that particular subject matter the law is repugnant to the provisions of the constitution or the law infringes one of the fundamental rights.

Article 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 honored by all courts of the land.

Judicial review in India comprises of three aspects:

1. Judicial review of legislative action

2. Judicial review of administrative action

3. Judicial review of judicial decisions.

The scope of judicial review varies from case to case.

The decision of the Honorable Supreme Court of India in Kesavananda Bharti’s case marked and explained the term which is called ‘Basic structure’ to measure whether the Parliament is seeking to destroy the Constitution, by using it powers under article 368, which was so far, understood to be a power, the exercise of which was not subject to Judicial Scrutiny. Basic Structure is not contained in one or more provisions of the Constitution of India, but it is supposed to be the sum total of the core of our Constitution.

Also in the same case the honorable court has interpreted the scope and meaning of judicial review.

“The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or state legislatures have acted within the four corners of the legislative lists earmarked for them,the courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution. As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened.Review 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 provisions of statutes. If the provisions of the statute are found to be violation of any Art. Of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the high courts are empowered to strike down the said provisions.”

In Minerva Mills vs. Union of India, it was observed by the Supreme Court that the clauses of art. 31-C as introduced by the Constitution (42nd Amendment) Act, 1976, which required to take away the power of judicial review were unconstitutional. However, judicial review was not held to be part of the basic structure of the Constitution by the majority in this decision, although Bhagwati J in his minority decision traced the power of judicial review to Arts. 32 and 226 and observed it to be a part of the basic structure of the Constitution, and if taken away by a constitutional amendment would amount to subversion of the Constitution.

Accountability is an essential part of the rule of law. The growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people, the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary.