“In India it is the Constitution that is supreme and that a statute law to be valid, must be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not”.
The doctrine of judicial review was first originated in USA. The Constitution of India itself confers the power of judicial review on the judiciary (both the Supreme Court as well as High Courts). The power of judicial review cannot be curtailed or excluded even by a constitutional amendment due to the presence of the element of Basic Structure.
Let’s discuss this in detail only on Critical Thinkers India.
WHAT IS JUDICIAL REVIEW?
It is the power of judiciary to examine the constitutionality of any legislative act or executive orders. If the law, act or order is found to be violative of the constitution it will be declared as null and void.
The Supreme Court used the power of judicial review in various cases, as for example, the Golaknath case (1967), the Bank Nationalisation case (1970), the Kesavananda Bharati case (1973), the Minerva Mills case (1980), NJAC Act 2014 etc.
SOURCE OF POWER OF JUDICIAL REVIEW
- 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 and empowers the Supreme Court to issue directions or orders or writs for that purpose.
- Article 131 provides for the original jurisdiction of the Supreme Court in centre–state and inter-state disputes.
- Article 132, 133, 134 provides for the appellate jurisdiction of the Supreme Court.
- Article 135 and 136 empowers the Supreme Court to exercise the jurisdiction and powers of the Federal Court under any pre-constitution law and authorizes the Supreme Court to grant special leave to appeal from any court or tribunal (except military tribunal and court martial) respectively.
- Article 226 empowers the High Courts to issue directions or orders or writs for the enforcement of the Fundamental Rights and for any other purpose.
- Article 227 vests in the High Courts the power of superintendence over all courts and tribunals within their respective territorial jurisdictions (except military courts or tribunals).
- Article 245 deals with the territorial extent of laws made by Parliament and by the Legislatures of States and Article 246 deals with the subject matter of laws made by Parliament and by the Legislatures of States.
- Article 372 deals with the continuance in force of the pre-constitution laws.
IMPORTANCE OF JUDICIAL REVIEW
- To uphold the principle of the supremacy of the Constitution.
- To maintain federal equilibrium (balance between the Centre and the states).
- To protect the Fundamental Rights of the citizens.
- It is outside the competence of the authority which has framed it.
- It is repugnant to the constitutional provisions.
The scope of judicial review in India is narrower than what exists in the USA, though the American Constitution does not explicitly mention the concept of judicial review in any of its provisions. This is because, the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ which is contained in the Indian Constitution.
JUDICIAL REVIEW AND 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 was added in First Amendment Act, 1951 which added Ninth Schedule to protect the land reform and other laws included in it from the judicial review.
The protection from judicial review afforded by Article 31-B to the Acts and Regulations specified in the Ninth Schedule should be restricted to only those which relate to (i) agrarian reforms, (ii) reservations, and (iii) the implementation of Directive Principles specified in clause (b) or (c) of Article 39.
However, originally Ninth Schedule contained only 13 acts which increased to 282 until 2016. And, In a significant judgement delivered in I.R. Coelho case (2007)12, the Supreme Court ruled that there could not be any blanket immunity from judicial review of laws included in the Ninth Schedule.
As the observation provided by the Supreme Court “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 these Rights are not contravened”. Judicial review is important because it allows laws that are inconsistent with the constitution however at the same time it should be not take a form of Judicial over reach/activism.