This article was written by Srishti Gupta, a student of VIPS, Delhi

Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India. This means that the Constitution is the supreme law of the land and no action, even of the judiciary, is acceptable if it is inconsistent with Constitution.

Judicial Review, a concept of Rule of Law, is the check and balance mechanism to maintain the separation of powers. Separation of power has rooted the scope of Judicial Review. It is a great weapon in the hands of the courts to hold unconstitutional and unenforceable any law and order which is inconsistent or in conflict with the basic law of the land. The two principal basis of judicial review are “Theory of Limited Government” and “Supremacy of constitution with the requirement that ordinary law must confirm to the Constitutional law.

Indian constitution has created an independent judiciary which is vested with the power of judicial review to determine the legality of any validity of law and any executive action. The power of judicial review is granted only to the Supreme Court and the High Courts under Article 32 and Article 226 of the Constitution to exercise two primary functions:

  • To legitimise the actions of legislature, executive and judiciary
  • To protect the constitution against any undue encroachment

The concept of judicial review was first mention in the case of Marbury v. Madison in 1803 by Chief Justice Marshall.

In India, the concept was marked not by a particular case but as a series of pronouncements of constitutional amendments which are very rigid in nature. Although Supreme Court of India is the guardian of Indian Constitution, therefore, from time to time it scrutinizes the validity of constitutional amendment laws. Parliament has the supreme power to amend the constitution but cannot abrogate the basic structure of the constitution. But, there was a conflict between Court and Parliament regarding Constitutional Amendment that whether fundamental rights are amendable under Art. 368 or not.

This question came for consideration in Shankari Prasad v. Union of India, the first case on amendability of the constitution the validity of the constitution (1st Amendment) Act, 1951, curtailing the “Right to Property” guaranteed by Art. 31 was challenge . The Supreme Court, however, held that the power to amend the constitution including the fundamental rights is contained in Art. 368, and that the word ‘law’ in Art. 13(2) includes only an ordinary law made in exercise of the legislative powers and does not include constitutional amendment which is made in exercise of constituent power. Therefore, a constitutional amendment will be valid even if it abridges or takes any of the fundamental rights. Again , In 1964 Sajjan Singh v. State of Rajasthan, the same question was raised when the validity of the Constitution (Seventeenth Amendment)Act, 1964, was called in question and once again the court revised its earlier view that constitutional amendments, made under Art. 368 are outside the purview of Judicial Review of the Courts. In this case the Constitution (17th Amendment) Act, 1964 was challenged an upheld.

In 1950, through the case of A. K. Gopalan the courts adopted a strict approach and displayed the attitude of judicial restraint by declaring that the judiciary’s power of judicial review is subordinate to the ‘procedure established by law’.  Therefore, the Indian Constitution refers to ‘procedure established by law’ and not ‘due process of law’ like the Constitution of USA.

The powers of the three organs, Legislature, Executive and Judiciary, are overlapping in nature. Thus, they are require to co-exist in harmony like in the Golak Nath case where the court decided that  provisions of Article 368 related to the amendment of the Constitution, merely laid down the amending procedure. Article 368 did not confer upon Parliament the power to amend the Constitution. The amending power of Parliament arose from other provisions contained in the Constitution (Articles 245, 246, 248) which gave it the power to make laws. Thus, the apex court held that the amending power and legislative powers of Parliament were essentially the same.

However, in the case of Keshavananda Bharti (1973), not only were the courts able to overrule the judgement of Golak Nath but also acquire the capability to scrutinise any amendments that violate the basic structure of the Constitution of which independent judiciary forms a significant part. The judicial system moved away from the ‘procedure established by law’ and moved towards ‘due process of law’.

Soon the courts were observed to be following judicial review as part of the basic structure. The courts realised that there was more to their duty than just interpreting the law. They have a responsibility towards the society to protect the rights of individuals and remind them of their duties. Hence, the interpreters of law started allowing their personal views about public policy, among other factors to guide their decisions which resulted in judicial activism.

Judicial activism is defined as the shaping of the basic law through a bold act. It is a conscience choice of the judges exercised with the power of judicial review to meet the needs of changing time. The voluntary practices of spreading awareness through legal aid movements, social action groups, Lok Adalats, PILs, is what judicial activism is all about. It is because of judicial activism that courts take suo motto (on their own) initiatives in certain cases. Fast track courts and speedy trials are examples of the same.

Judicial activism is a part of the evolution process of judicial review. It has provided a moral leadership to the existing judiciary system because of which it is a symbol of hope for the people, as they are at the receiving end of the law making process.

Judicial review has not only strengthened the three organs of the state but has also emphasised how important it is to keep the laws dynamic so that they prove to be useful with every phase. This power of review has significantly highlighted that judiciary is not only a legal structure but s political structure having its roots in particular socio-economic-political context.

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