Judicial Review: Safeguarding Democracy in India

Introduction

India is chiefly governed by its government in power. Above all, it has its three organs which form the entire body of government.  This particularly embodied the legislature, executive and judiciary. As in an individual’s body every organ dispatch different rudimentary tasks. An identical situation arises in the case of the government. All three organs like legislature, executive and judiciary play a vital role in the development of any country. The role of the legislature is to institute laws, the role of the executive is to administer these laws and the role of judiciary to check the credibility of those laws shaped by the legislature.

Basically, in this particular article we will discuss the concept of judicial review. The third and most dynamic organ of the government i.e., Judiciary. The judiciary has the authority of judicial review, or we can say the judicial scrutiny of the exertions or undertaking of legislative, executive, and administrative arms of the directorate or government. The act is by and large conducted by the judiciary to check the constitutional validity of the actions or laws enacted by them. The paramount intention of performing such an act is to check whether the actions are under the purview of law of land i.e. Constitution or not.

The Chronicle of Judicial Review in World

The idea of judicial review dates back to the case of Dr. Bonham’s v. Cambridge University (1610) case, in which Dr. Bonham was illegally imprisoned by the College of Physicians for practising medicine without a licence. And then another leading case which is known for the encountering of judicial review in the modern world is Marbury v. Madison (1803). In this case, Thomas Jefferson’s embellishment as the President in March 1801, the then President John Adams appointed the member of the federal party as Judge. But the new government of Thomas Jefferson was against the same. He ordered the secretary of state not to send the letter of appointment to the judges. Marbury, one of the judges, approached the Supreme Court and filed a writ of mandamus. Court denied to entertain the plea and firstly opposed the order of the legislature i.e., Congress and thus the US SC developed the doctrine of judicial review. 

Significance of Judicial Review in India

The Indian constitution lies in the supremacy of law. The doctrine of judicial review is the essence of democracy. The word judicial review means the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. The doctrine of judicial review emanates and develops in the USA. In India, on the other hand, the law of the land i.e.  The Constitution itself confers the authority of judicial review on the courts. Basically, an act whether by executive, judiciary or any other public authority which is inconsistent with fundamental right would be null and void (Article 13) and found to be ultra vires.

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

• Judicial review of constitutional amendments.
• Judicial review of legislation of the Parliament and state legislatures and subordinate legislation.
• Judicial review of administrative action of the Union and State and authorities under the state.

Constitutional Provisions for Judicial Review

Normally, the phrase ‘Judicial Review’ has nowhere been defined in the Indian Constitution, but the provisions of several articles explicitly give out to the power of judicial review on the SC and the High Court: these provisions are:

• Article 13 declares that all laws that are inconsistent with or in derogation of Fundamental Rights shall be null and void.
• Article 32 guarantees the right to move the SC for the enforcement of Fundamental Rights and empowers the SC to issue directions or orders or writs for that purpose.
• Article 131 provides for the original jurisdiction of the SC in Centre-State and inter-state disputes.
• Article 132 provides for the appellate jurisdiction of the SC in constitutional matters
• Article 133 provides for appellate jurisdiction in civil cases.
• Article 134 provides for the appellate jurisdiction of the SC in criminal matters.
• Article 134-A deals with the certificate for the appeal to the SC to the HC.

Scope of Judicial Review

The judicial review plays a vital role in the Judiciary of India. The constitutional validity of a legislative enactment or an executive order can be challenged in the SC or in the HC on the following grounds.

(a)   It violates the Fundamental Rights enshrined in Part III of Constitution.

(b)   It is outside the competence of the authority which has framed it, and

(c)   It is repugnant to the constitutional provisions.

It is basically clear that the scope of judicial review is broader in the USA in comparison to that of India. The reason behind all these is that in America they followed the concept of ‘due process of law’ while in India there is a ‘procedure established by law. The concept of due process gives wide scope to the SC to grant protection to its citizens. It can declare violative of the rights not only on substantive grounds of being unlawful but also on procedural grounds of being unlawful.

The exercise of wide powers of judicial review by the American SC in the name of the ‘due process of law’ clause has made critics describe it as a ‘third chamber’ of the legislation, a super-legislature, the arbitral of social policy and so on.

Judicial Review of Ninth Schedule

Article 31B protects 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. Also, Article 31 B along with the Ninth Schedule was added by the 1st Constitutional Amendment Act of 1951.

Laws included in the Ninth Schedule are protected from judicial review on the grounds that they violate fundamental rights. This means that even if a law violates a fundamental right, it cannot be struck down by the courts if it has been included in the Ninth Schedule.

However, this protection is not absolute. In 2007, the SC ruled that laws included in the Ninth Schedule are not immune to judicial review if they violate the basic structure of the Constitution. This means that if a law included in the Ninth Schedule is found to violate the basic structure of the Constitution, it can still be struck down by the courts. So, here the basic structure of the Indian Constitution came after the Keshwananda Bharati v. Union of India (1973) play a vital role in interpreting something in the Indian Constitution.

Conclusion

Hence, the concept of judicial review first emerged from the Constitution of the United States in India. It means basically the judiciary has the power to review the laws made by the legislature and the executive or administrative acts. If we talk about the reality then in India, the concept of Judicial Review does not exist fully, as there is the concept of separation of powers. To stop the judiciary from using arbitrariness, there is a concept of checks and balances which means that every organ will check the validity of any other organ.

References

https://www.drishtiias.com/daily-news-analysis/judicial-review-1

Indian Polity, Sixth Edition by M Laxmikant

Bio: Krishna Singh Thakur is a final year student pursuing his bachelor's in law. He has good catch in academics & has been a university topper. Beyond his academic pursuits, Krishna demonstrates a fervent enthusiasm for a wide range of extracurricular activities, such as debates, speeches, sports, and event organization, all of which enrich his educational experience and contribute to his personal growth.