Judicial Review is the power of the Supreme Court or High Court to examine the constitutionality of the laws passed by the legislature and executive orders of both the Central and State governments. If they found inconsistent with the Constitution then declared as null and void. The power of Judicial Review flows from various articles of the Constitution like articles 13, 32, 132 and 226. Supreme Court has declared the power of Judicial Review as part of the basic structure of the Constitution. The UPSC Indian Polity and Governance Syllabus includes Power of Judicial Review which is described in this article.

Judicial Review - Historical Background

• The doctrine of judicial review is originated and developed in the USA.
• It was established for the first time in the famous case of Marbury vs. Madison in 1803 by the then Chief Justice of the American Supreme Court John Marshall.
• In India, the Constitution itself confers the power of Judicial review on both the Supreme Court and High Courts.
• In the Indira Gandhi vs Raj Narain case of 1975, the Supreme Court declared Judicial Review as a basic feature of the Constitution.

Classification of Judicial Review

Justice Syed Shah Mohamed Quadri has classified the judicial review into the following three categories.

• Judicial review of constitutional amendments
• Judicial review of the laws of the Parliament, state legislatures and subordinate legislations
• Judicial review of administrative action of the Union, state and authorities under the state.

Scope of Judicial Review

A law or an executive order can be challenged in the Supreme Court on the following three grounds.

1. If it infringes the Fundamental Rights
2. If it is outside the competence of an authority which has framed it
3. If it is repugnant to the Constitutional Provisions.

Significance of Judicial Review

• It is important to uphold the supremacy of the Constitution.
• It maintains the federal balance between the Centre and the states.
• It serves as a vital mechanism for protecting Fundamental Rights and liberties from infringement by the government.
• It reinforces the principle of the rule of law.
• By providing a check on the actions of the executive and legislative, the judiciary helps to prevent the concentration of power in any one branch and promotes accountability and transparency in governance.

Constitutional Provisions for Judicial Review

Though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, the provisions of several articles explicitly confer the power on the Supreme Court and High Courts.

Cases Related to Judicial Review in India

Guidelines in Judicial Review

Certain doctrines have developed in the courts to serve as guides in the judicial review process.

Doctrine of Severability

When evaluating the challenged law, the court must determine whether the law is unconstitutional in its entirety or in sections. The court has the authority to declare the challenged law unconstitutional in its entirety or in part, as the case may be.

The doctrine of Progressive interpretation

The Indian judiciary has been guided by the doctrine of progressive interpretation, which implies that the courts have construed the Constitution's provisions in light of the social, economic, and legal circumstances that existed at the time.

The doctrine of Prospective Overruling

It is predicated on the assumption that judicial invalidation or a new interpretation of the law will have no effect on previous transactions or vested rights, but will only apply to future transactions.

The doctrine of Empirical Adjudication

While exercising the judicial review power. Courts are not designed to deal with hypothetical issues; the matter placed before them must be of a ‘Concrete' type. The Court strives to keep its conclusions as close to the controversy's original scope as possible. In a specific case, between the parties involved.

The presumption in favour of Constitutionally

When a law's constitutional legitimacy is questioned, the court will not rule it ultra vires unless the invalidity is proven beyond a reasonable doubt, because there is always a presumption in favour of its constitutionality. The Supreme Court assumes that the legislature does not overstep its authority or pass legislation that is contrary to the spirit of the Constitution.

Limitations of Judicial Review

• Justiciable Issues Only: The judiciary can only review laws that are justiciable, meaning they are capable of being resolved through legal principles and not matters of political discretion or policy.
• Standing Requirements: In order to challenge a law or governmental action, the petitioner must have standing, meaning they must demonstrate a direct and personal stake in the outcome of the case.
• Respect for Separation of Powers: The judiciary must respect the separation of powers and refrain from encroaching on the legislative or executive functions unless there's a clear violation of constitutional principles.
• Deference to Legislative and Executive Expertise: In matters involving complex policy decisions, courts often defer to the expertise of the legislative and executive branches, recognizing their constitutional authority to make policy judgments.
• Limits on Remedies: Even if a law or action is found unconstitutional, the judiciary's power to provide remedies may be limited by practical considerations or principles of judicial restraint.

Conclusion

Judicial Review serves as a mechanism to uphold the constitutionality of laws and actions. It operates as a mechanism for ensuring that governmental actions are subject to legal scrutiny and accountability. It helps maintain the integrity of legal systems and protects the rights and interests of individuals within society.

FAQs

Question: What is judicial review?

Question: Which part of the Indian Constitution provides for judicial review?

Question: What is the significance of judicial review in India?

Question: Can judicial review be used to challenge constitutional amendments?

Question: What is the doctrine of basic structure?

MCQs

1. Which of the following articles of the Indian Constitution primarily deals with judicial review?

a) Article 14

b) Article 32

c) Article 51

d) Article 280

2. The doctrine of judicial review was established in India through which landmark case?

a) Golaknath Case

b) Kesavananda Bharati Case

c) Minerva Mills Case

d) A.K. Gopalan Case

3. Judicial review in India can be exercised by which courts?

a) Only the Supreme Court

b) Only the High Courts

c) Both the Supreme Court and High Courts

d) All courts

4. Judicial review in India is based on which of the following principles?

a) Supremacy of Parliament

b) Supremacy of the Constitution

c) Executive dominance

d) Federalism

5. Which of the following is not part of the basic structure of the Indian Constitution?

a) Secularism

b) Judicial review

c) Federalism

d) Emergency provisions

GS Mains Questions and Model Answers

Q1: “Judicial review is an essential feature of the Indian Constitution.” Discuss.

Answer: Judicial review is a fundamental feature of the Indian Constitution, as it ensures the supremacy of the Constitution by allowing the judiciary to review the constitutionality of laws and executive actions. It acts as a safeguard for fundamental rights, protects the balance of power between different branches of government, and maintains the democratic framework of the country. Judicial review prevents arbitrary use of power by the legislature and executive, ensuring that they act within constitutional limits.

Q2: Examine the role of judicial review in upholding the doctrine of basic structure.

Answer: Judicial review plays a crucial role in upholding the doctrine of basic structure, which prevents Parliament from making amendments that alter the Constitution's core principles. Through judicial review, the courts ensure that any amendments or legislative actions do not infringe upon the essential features of the Constitution, such as democracy, secularism, and rule of law. This judicial mechanism preserves the integrity of the Constitution and safeguards it from potential misuse by the legislature.

Q3: Critically analyze the limitations of judicial review in India.

Answer: While judicial review is a powerful tool for upholding the Constitution and protecting citizens' rights, it has certain limitations. One major limitation is that judicial review cannot be applied to political decisions, which may limit its scope in holding the executive accountable. Additionally, judicial activism, where courts take on a more interventionist role, can blur the lines between the judiciary and legislature. Furthermore, the judiciary itself may sometimes overstep its boundaries, leading to concerns over judicial overreach. Balancing the use of judicial review with respect for the separation of powers is essential in maintaining its effectiveness within a democratic system.

Previous Year Questions on Judicial Review

1. UPSC CSE 2018

Q1: Discuss the significance of judicial review in maintaining the supremacy of the Constitution in India. 

Answer: Judicial review plays a crucial role in upholding the supremacy of the Constitution in India by ensuring that laws and executive actions adhere to constitutional principles. It allows the judiciary to invalidate laws or actions that violate fundamental rights or exceed constitutional limits. This helps maintain the balance of power between the legislative, executive, and judicial branches of government, ensuring that no law or action can undermine the Constitution’s core values.

2. UPSC CSE 2019

Q2: Explain the doctrine of basic structure and its relation to judicial review in India. 

Answer: The doctrine of basic structure, established in the Kesavananda Bharati case (1973), holds that while Parliament has the power to amend the Constitution, it cannot alter its basic structure. Judicial review allows the judiciary to scrutinize constitutional amendments to ensure that they do not violate fundamental principles like the rule of law, separation of powers, and fundamental rights. This doctrine ensures that key constitutional features remain intact, protecting the integrity of the Constitution.

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