Legal Service India - In Defence of Judicial Review
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In Defence of Judicial Review

Written by: A.S.Srikanth, B.Sc., LL.B., IAS Officer
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Two prominent constitutional functionaries recently expressed their concern over the role played by the Indian Judiciary. The dividing line between judicial activism and overreach is a thin one, ... a takeover of the functions of another organ may, at times, become a case of overreach, said the Prime Minister Dr. Manmohan Singh while the Lok Sabha Speaker Somnath Chatterji maintained, Judiciary is not an overriding authority and no organ has the right to emphasize powers of another, These assertions have, in the wake of several apex court rulings, striking down executive decisions and parliamentary legislations- the latest being the constitutional validity of Schedule Nine and the stay on implementing 27 percent quota for backward class students, encouraged another round of discussion as regards judicial review under the Constitution.

2 The success of a democracy, especially one based on a federal system, depends largely on an impartial and independent judiciary endowed with sufficient powers to administer justice. The framers of the Indian Constitution, therefore, thought it fit to entrust the judiciary with vast powers. The trinity of an independent judiciary, independent constitutional review, and the supremacy of law operate together for the working of a constitutional government.

3 The Indian Constitution explicitly establishes the doctrine of judicial review in several Articles such as Arts.13, 32, 131 to 136, 143, 226 and 246

In fact, the study of constitutional law may be described as a study of the doctrine of judicial review in action The courts have power to strike down any law, if they believe it to be unconstitutional. However, the research and statistics reveal that our courts have not been trigger happy in striking down laws and on the contrary legislations especially socio-economic legislations have generally been upheld. In the words of Fazl Ali, J. ?the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.

4 The Constitution being a living document its provisions must be construed having regard to the march of time and the development of law. Initially, be it Shankari Prasad or Sajjan Singh or A.K.Gopalan, the courts in India adopted an approach of literal and narrow interpretation. However, in course of time, this judicial positivism has transformed into judicial activism.

5 The decision in the Maneka Gandhi and the post-Emergency judicial activism has inspired a philosophy of constitutional interpretation, treating the Constitution not as a mere index of rules but as assertion of the principles of constitutionalism. Similarly, the doctrine of basic structure evolved in Keshavananda Bharati, its effect, impact and working having been examined in Indira Gandhi's (election case) , Waman Rao's, Minerva Mills and I.R. Coelho cases are all milestones for the affirmation of judicial review in Indian constitutional jurisprudence. The assertion that, the Supreme Court has been assigned the role of a sentinel on the quinine for the protection of the fundamental rights? is certainly a tribute to the role played by the judiciary in India. Arts. 14, 19 and 21 represent the foundational values which form the basis of judicial review apart from the rule of law and separation of powers,

6 Is it then permissible for Parliament to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court

7 Art.31B and the Ninth Schedule were added to the Constitution by the First Amendment Act 1951

The sole objective of the exercise is to assist the State to bring about agrarian reforms providing for economic justice; and immunize certain acts and regulations from a challenge on the ground of violation of fundamental rights. In effect, this measure has deprived the courts of the power to scrutinize the validity of such enactments. The Supreme Court by a majority upheld the amendment in the Shankari Prasad case. However, what was thought to be some exception to the enforcement of Fundamental Rights became an unchecked and rampant exercise of the power, the number of enactments inserted in the Ninth Schedule having gone up from 13 to 284. The exercise of such power means the absence of full power of judicial review so as to determine the constitutional validity of such an exercise. Does not such a step offend the doctrine of basic structure of the constitution, propounded in the Keshavananda Bharati

8 The judgment in I.R. Coelho v. the State of Tamil Nadu has answered this question by establishing the pre-eminence of judicial review of each and every part of the Constitution. The Court has laid down a two-fold test: (a) whether an amendment or a law is violative of any of the Fundamental Rights in Part III (b) if so, whether the violation found is destructive of the basic structure of the Constitution. If the court finds that the impugned enactment damages the basic structure of the Constitution, it shall be declared void, notwithstanding the fictional immunity given to it by Article 31B.Thus, the basic structure doctrine requires the State to justify the degree of invasion of Fundamental Rights in every given case; and this is where the court's power of judicial review comes in.

9 The power of judicial review, being "the very soul of the Constitution," is certainly a delicate exercise. Except in Article 363, the Constitution has not envisaged imposition of any jurisdictional embargo on the Supreme Court; and this is sufficient enough to identify the depth and width or extent of its powers (P.Ramachandra Rao Vs State of Karnataka, (2002) 4 SCC 578). It is for this very reason that the Court has to function within the established parameters and constitutional bounds. The judiciary entertaining Public Interest Litigation leading to ?judicial activism? has of late been conceived as problem area. As judicial activism and judicial restraint are the two sides of the same coin, efforts must be made to see that the former does not lead to judicial adventurism.

10 The judiciary should act as a catalyst only to expedite the process of eliminating executive inertia, but without itself involving in the actual administrative process. In the circumstances, some degree of tension is natural and to some extent desirable, as pointed by Chief Justice K.G.Balakrishnan. However, friction can be avoided if each organ of the state correctly understands and respects the constitutional functions of the other.


1. Judicial challenge by Sri V.Venkateshan
2. Reclaiming jurisdiction, Editorials the Hindu
3. Verdict on Ninth Schedule, Paramountcy of judicial review established, Fali S. Nariman, Senior Advocate, Supreme Court.
4. A Case Study' of the 9th Schedule Case, Lecture delivered on 9th Feb., 2007, By Justice Sunil Ambwani, Judge Allahabad High Court, Allahabad
5. Ninth Schedule can't help- Evading judicial scrutiny not possible, Subhash C. Kashyap, Former Secretary; General, Lok Sabha
6. A Tribune debate: Parliament can't misuse 9th Schedule by P.P. Rao, Senior .Advocate, Supreme Court of India.

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