Judicial review in India is the power of the Supreme Court and High Courts to examine the constitutionality of legislative and executive actions. It is implicitly provided for in Articles 13, 32, 136, 142, and 226 of the Constitution, ensuring constitutional supremacy and the separation of powers.
Meaning of Judicial Review
Scope of Judicial Review
Judicial review includes:
Review of legislative actions: Ensuring laws comply with the Constitution, especially concerning fundamental rights.
Review of administrative actions: Enforcing constitutional discipline over administrative agencies.
Review of judicial decisions: Allowing the judiciary to correct its rulings.
The constitutional validity of actions can be challenged in the Supreme Court or High Court if they violate fundamental rights, exceed authority, or conflict with constitutional provisions.
Role of Judges
Judges protect rights and maintain the balance of power by reviewing the actions of the executive and legislative branches. The Supreme Court's interpretations of the Constitution are binding nationwide.
Judicial Review and the Basic Structure Doctrine
Judicial review is a fundamental aspect of the Constitution that cannot be undermined. The Supreme Court has affirmed its importance to the separation of powers and the rule of law.
Procedure for Judicial Review
The "procedure established by law," outlined in Article 21, governs judicial review, requiring laws to be constitutionally sound and enacted following the correct procedure.
Significance of Judicial Review
Judicial review upholds the rule of law, protects individual rights, and preserves the balance of power, ensuring legislative compliance with the Constitution.
Landmark Judgments and Recent Developments
1.Kesavananda Bharati Case (1973): This case established the basic structure doctrine, which holds that fundamental features of the Constitution like democracy, secularism, federalism, and the rule of law cannot be amended by Parliament. It also affirmed that the power of judicial review is an integral part of this basic structure.
2. In Re: Article 370 of the Constitution (2023): The Supreme Court upheld the Central Government’s revocation of the special status of Jammu and Kashmir, affirming that Article 370 was a temporary provision.SC held that Judicial review confined to constitutional violation, not to question wisdom of policy decision to abrogate Article 370.
3. Sita Soren v. Union of India (2024): A seven-judge bench overruled a previous decision, stating that legislators do not have immunity from criminal prosecution for bribery related to their speeches or votes, reinforcing that bribery undermines democracy.
4. Association for Democratic Reforms v. Union of India (2024): A five-judge bench declared the Electoral Bonds Scheme unconstitutional. Electoral Bond Scheme which provided blanket anonymity to political donors was held by SC as unconstitutional for violating the right to information of voters.
Other Examples - National Judicial Appointments Commission Act (NJAC), the
5. Justice K.S. Puttaswamy and Anr. vs. Union of India (UOI)
(Aadhaar Act judgment)
(I) Using Aadhaar for welfare schemes & mandatory linking of Aadhaar with PAN cards- held constitutional.
(ii) But mandatory linking of Aadhaar to bank accounts of private entities was declared unconstitutional ,as it violated the right to privacy.
6. L. Chandra Kumar v. Union of India [(1997)
SC has laid down that the power of judicial review over legislative action vested in the High Courts under Article 226 as well as in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution constituting part of its basic structure.
Judicial Review is genesis of judicial creativity.
Judicial Review empowers the Superior judiciary to assess/examine the actions of the executive and legislative organs of government, invalidating any action that violates the Constitution.
Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.
In India, through Articles 13, 32 and through 136, 142 and 226 the Supreme Court and High Courts are authorized to exercise the power of judicial review.
By application of judicial review, the Supreme Court of India has invalidated several legislative and executive actions that were declared unconstitutional.
Scope of Judicial Review in India.
The scope of judicial review in India is broad, and it covers not only the laws passed by the legislature but also the actions of the executive.
The Constitutional courts have the power to strike down any law
A. that is in violation of the Constitution.
B. violates fundamental rights.
C. if it is beyond the legislative competence.
Constitutional courts can also issue writs like Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto.
Categories of Judicial Review
1.Legislative Actions
To examine whether the laws passed by the Legislature comply with constitutional provisions.
2. Administrative Actions:
The courts have the power to review the (i)rationality and (ii) legitimacy (iii) procedural propriety of the administrative actions and (iv) proportionality of restrictions, if it affects freedoms guaranteed under Articles 19 and 21 of the Constitution.
3. Judicial Actions:
To make amends or improve any inconsistencies in previous judgments by the courts.
4. Article 13 example of compulsion of judicial review.
-all laws that are inconsistent with fundamental rights enumerated in Part III of the Constitution shall be void.
Well established and settled principles of judicial review.
1. The three organs of the State i.e., Legislature, Judiciary and Executive have separate and distinct roles and functions as provided in the Constitution.
2. The power of Legislature is to enact law and the power of Judiciary is of judicial review of the statutory enactments .
3. The Constitution does not permit the courts to direct, advise or sermonize other organs of the State in the spheres reserved for them., provided the legislature or executive does not transgress its constitutional limits or statutory conditions.
4. The power of judicial review is to be exercised post the enactment of law. The judiciary will step in only after a law is enacted.
5. * Court cannot direct the legislature to enact a law and in a particular manner.
6. * In the scheme of the constitution, the Judiciary cannot legislate.
7. The Judiciary cannot and should not usurp the powers vested with legislature.
7. A law is enacted by the Parliament or Legislature, can be struck down only if it violates the fundamental rights or if it is beyond the legislative competence
Limitations of Judicial Review in India-
1. Courts cannot inquire into the acts of President, Governors, and Judges of the Supreme Court and High Courts --Certain immunities and privileges- unless they have acted in their personal capacity.
2. In addition, the courts cannot interfere with the policy decisions of the executive unless they are in violation of the Constitution.
3.. The courts also cannot question the wisdom or correctness of a policy decision taken by the executive, as long as it is within the framework of the Constitution.
4. Courts would show a higher degree of deference to matters concerning economic policy, compared to other matters of civil and political rights.
Judicial review of legislative action is limited in United Kingdom and New Zealand. In India , the validity of an ordinance can be challenged on grounds available for judicial review of a legislative act.
Conclusion
These cases demonstrate the judiciary's active role in interpreting and upholding the Constitution, ensuring that legislative and executive actions remain within constitutional limits.
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