judicial Review
The doctrine of judicial review is a foundational aspect of the Indian judicial system, allowing the judiciary to examine the constitutionality of legislative enactments and executive orders, both from the Central and State governments. This principle, first established in the United States, was integrated into the Indian Constitution, with the Supreme Court affirming it as a basic feature that cannot be limited or excluded by constitutional amendments.
Definition
Judicial review empowers the judiciary to declare laws and executive actions unconstitutional (ultra vires) if they violate the provisions of the Constitution. Consequently, such actions cannot be enforced by the government.
Categories of Judicial Review
Justice Syed Shah Mohamed Quadri has classified judicial review into three primary categories:
1. Judicial Review of Constitutional Amendments: Examination of amendments to determine their constitutionality.
2. Judicial Review of Legislation: Scrutiny of laws passed by Parliament and State Legislatures, including subordinate legislation.
3. Judicial Review of Administrative Actions: Review of actions taken by Union and State authorities to ensure they comply with constitutional provisions.
Landmark Cases
The Supreme Court has exercised its power of judicial review in several significant cases, including:
- Golaknath case (1967) – Protected Fundamental Rights from being amended.
- Bank Nationalisation case (1970) – Affirmed the constitutionality of nationalizing banks.
- Kesavananda Bharati case (1973) – Established the basic structure doctrine.
- Minerva Mills case (1980) – Reinforced the importance of judicial review in protecting rights.
In 2015, the Supreme Court declared the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act unconstitutional, thus reinforcing its role as the guardian of the Constitution.
Importance of Judicial Review
Judicial review is deemed essential for several reasons:
- Supremacy of the Constitution: It upholds the hierarchy of legal authority, ensuring that all laws conform to the Constitution.
- Federal Balance: It maintains the equilibrium between the Central and state governments.
- Protection of Fundamental Rights: It safeguards citizens’ rights against infringements by legislative and executive actions.
In multiple rulings, the Supreme Court highlighted the significance of judicial review:
- It confirmed that the Constitution is supreme, and valid law must align with its provisions.
- The Court serves as the sentinel for upholding Fundamental Rights.
- The power of judicial review is crucial to ensure that any exercise of authority by government organs does not exceed constitutional limits.
- The absence of judicial review would render Fundamental Rights meaningless.
Additional Observations
- Judicial review is part of constitutional interpretation, adapting the Constitution to address contemporary challenges.
- The founding framers of the Constitution wisely incorporated judicial review as a mechanism to balance federalism, protect Fundamental Rights, and promote equality and liberty while fostering a sense of healthy nationalism.
- In summary, judicial review empowers the Supreme Court to uphold the Constitution and its values, making it a cornerstone of democracy and the rule of law in India.
Constitutional Provisions for Judicial Review
Although the specific phrase “Judicial Review” does not appear in the Indian Constitution, several articles explicitly confer this power upon the Supreme Court and High Courts. The relevant provisions are as follows:
- Article 13: Declares that any law inconsistent with or derogating from Fundamental Rights is null and void.
- Article 32: Guarantees the right to approach the Supreme Court for enforcing Fundamental Rights and empowers the Court to issue directions, orders, or writs for that purpose.
- Article 131: Provides for the Supreme Court’s original jurisdiction in disputes between the Centre and states, or between states.
- Article 132: Grants the Supreme Court appellate jurisdiction in constitutional cases originating from High Courts.
- Article 133: Confers appellate jurisdiction on the Supreme Court in civil cases arising from High Court judgments.
- Article 134: Grants appellate jurisdiction in criminal matters, allowing appeals against High Court decisions.
- Article 134-A: Deals with the certification required for appeals to the Supreme Court from High Courts.
- Article 135: Empowers the Supreme Court to exercise jurisdiction and powers of the Federal Court under any pre-constitution law.
- Article 136: Authorizes the Supreme Court to grant special leave to appeal from any court or tribunal (excluding military tribunals).
- Article 143: Authorizes the President to seek the Supreme Court’s opinion on questions of law or fact and matters relating to pre-constitution treaties or agreements.
- Article 226: Empowers High Courts to issue directions, orders, or writs for the enforcement of Fundamental Rights and for other purposes.
- Article 227: Vests the High Courts with the power of superintendence over all courts and tribunals within their territorial jurisdictions, excluding military courts.
- Article 245: Addresses the territorial extent of laws made by Parliament and by state legislatures.
- Article 246: Pertains to the subject matter of laws made by Parliament and state legislatures (Union List, State List, and Concurrent List).
- Articles 251 and 254: State that in case of a conflict between central and state laws, the central law prevails, rendering the state law void.
- Article 372: Concerns the continuity of pre-constitution laws.
Scope of Judicial Review
The constitutional validity of legislative enactments or executive orders can be challenged in the Supreme Court or High Courts on three primary grounds:
- Infringement of Fundamental Rights (Part III)
- Lack of Competence: If a law is outside the authority of the body that made it.
- Repugnance to Constitutional Provisions: If it conflicts with the Constitution.
While the scope of judicial review in India is significant, it is narrower compared to that in the United States. The American Constitution, although not explicitly mentioning judicial review, allows for a broader interpretation through the “due process of law” clause. This clause empowers the U.S. Supreme Court to protect citizens’ rights not only on substantive grounds but also on procedural grounds, evaluating the reasonableness of laws. In contrast, the Indian Supreme Court primarily examines whether a law is within the powers of the authority concerned and does not typically assess the reasonableness or policy implications of the law.
Synthesis of Judicial Principles
The extensive power of judicial review exercised by the American Supreme Court has led critics to refer to it as a “third chamber” of the Legislature or a super-legislature due to its influential role in shaping social policy. While the principle of judicial supremacy is acknowledged in India, it exists within a framework that also respects parliamentary supremacy, albeit to a limited extent.
The Indian Constitution imposes several limitations on the sovereignty of Parliament, such as a written Constitution, federalism with a division of powers, Fundamental Rights, and the doctrine of judicial review. Ultimately, India’s judicial framework represents a synthesis of both the American principle of judicial supremacy and the British principle of parliamentary supremacy, reflecting the unique context and requirements of the Indian legal system.
Judicial Review of the Ninth Schedule
Article 31B serves to protect acts and regulations included in the Ninth Schedule from being challenged on grounds of violating Fundamental Rights. This Article, along with the Ninth Schedule itself, was added through the First Constitutional Amendment Act of 1951.
Background
Originally, the Ninth Schedule contained only 13 acts and regulations, but as of 2016, it has expanded to include 282. Many of these laws relate to land reforms and the abolition of the zamindari system, while others concern various state and national issues.
In the significant judgment of the I.R. Coelho case (2007), the Supreme Court ruled that there is no blanket immunity from judicial review for laws included in the Ninth Schedule. The Court held that judicial review is a ‘basic feature’ of the Constitution and cannot be nullified by merely placing a law in the Ninth Schedule. Laws added to the Ninth Schedule after April 24, 1973, can be challenged in court if they infringe upon Fundamental Rights guaranteed under Articles 14, 15, 19, and 21, or violate the ‘basic structure’ of the Constitution.
Key Conclusions from the I.R. Coelho Case
1. Challenge to Abrogation of Rights: A law that infringes on rights guaranteed by Part III of the Constitution may violate the basic structure doctrine. Such a law, whether amended or included in the Ninth Schedule, can be invalidated through judicial review if it abrogates or abridges Fundamental Rights.
2. Case-by-Case Judgment: Each constitutional amendment affecting the Ninth Schedule must be evaluated on its own merits, considering the impact of the law on the rights guaranteed under Part III.
3. Testing New Amendments: All amendments made to include laws in the Ninth Schedule after April 24, 1973, must be assessed for their compliance with the basic features of the Constitution, particularly those embodying the rights expressed in Articles 14, 19, and 21.
4. Regulatory Justification: The provision for protecting laws included in the Ninth Schedule requires a close examination of any infringement of Fundamental Rights, utilizing both the “rights test” and the “essence of the right” test.
5. Binding Precedent: If the validity of any law in the Ninth Schedule has previously been upheld, it cannot be challenged again under the principles established by the Coelho judgment. However, a law previously deemed violative of rights in Part III can be challenged if it is later included in the Ninth Schedule.
6. Impacted Actions: Actions and transactions carried out under laws included in the Ninth Schedule remain valid and immune from challenge despite any constitutional infringements.
Table of Acts and Regulations in the Ninth Schedule
Serial Number | Amendment Number (Year) | Number of Acts and Regulations Included in the Ninth Schedule |
I. Included Before April 24, 1973 | ||
1. | First Amendment (1951) | 13 (Acts 1 to 13) |
2. | Fourth Amendment (1955) | 7 (Acts 14 to 20) |
3. | Seventh Amendment (1964) | 44 (Acts 21 to 64) |
4. | Twenty-Ninth Amendment (1972) | 2 (Acts 65 to 66) |
II. Included After April 24, 1973 | ||
5. | Thirty-Fourth Amendment (1974) | 20 (Acts 67 to 86) |
6. | Thirty-Ninth Amendment (1975) | 38 (Acts 87 to 124) |
7. | Fortieth Amendment (1976) | 64 (Acts 125 to 188) |
8. | Forty-Seventh Amendment (1984) | 14 (Acts 189 to 202) |
9. | Sixty-Sixth Amendment (1990) | 55 (Acts 203 to 257) |
10. | Seventy-Sixth Amendment (1994) | 1 (Act 257A) |
11. | Seventy-Eighth Amendment (1995) | 27 (Acts 258 to 284) |
Note: Entries 87, 92, and 130 were omitted by the Forty-Fourth Amendment (1978).
By establishing these provisions, the Indian legal framework seeks to balance the need for legislative reforms with the protection of Fundamental Rights, thereby reinforcing the rule of law and democratic principles.