The amendment of the Indian Constitution took place in the year 1951 for the
very first time and through this amendment several modifications were made in
the fundamental rights and the era of land reform started through constitutional
mechanism, and the Supreme Court of India which has the main responsibility of
for its interpretation and its protection. It is the acting guardian of the
Fundamental Rights of the people.
The Supreme Court has the power to determine
the validity of all laws with respect to the constitution. The SC has the power
to reject law or any part of it which is found to be un�constitutional called
the  Judicial review power of the Supreme Court. State High Courts also
exercise this power but their judgements are often rejected or modified or
upheld by the Supreme Court.
The principle of the judicial review became an
important feature of written Constitutions of many countries. The power of
judicial review has in itself the concept of separation of powers an important
component of the rule of law, which is the basic feature of the Indian
The power of Judicial Review is included in the Articles 226 and
227 of the Constitution regarding the High Courts are concerned and in the
Articles 32 and 136 of the Constitution regarding the Supreme Court. The
judiciary in India has come to control by judicial review in every aspect of
governmental and public functions. Judicial review is basically a process under
which the legislative or the executive actions are subject to review by the
A court authoritatively for judicial review may invalidate laws, acts
and governmental actions that are incompatible with a higher authority: an
executive decision could also be invalidated for being unlawful or a statute
could also be invalidated for violating the terms of a constitution. The Supreme
Court's power of judicial review extends to the Constitutional Amendments.
However, review of constitutional Amendments by judiciary in reference to
Fundamental Rights and its legal Validity has been a Contentious Political
This paper will be dealing with introducing the topic judicial review
along with its background, features and its legal outlook with references to
landmark case laws. Judicial review is often understood by two distinct but
parallel legal systems, firstly the civil law and secondly the common law, and a
also by two distinct theories of democracy regarding the manner in which the
government should be organized with reference to the principles and doctrines of
legislative supremacy and therefore the separation of powers.
period of emergency, the judiciary was on the end for having delivered a series
of judgments which were recognized by many as violative of the basic human
rights of Indian citizens and changed the way it looked at the constitution and
the Supreme Court said that any legislation is amenable to judicial review.
Judicial review is an important approach by which the court examines the actions
of the executive the legislature and the other governmental agencies and later
decide whether the actions are valid or not and are within the limits set in the
constitution. This method or approach has also been closely associated with
the judicial activism, as judicial activism is nothing but the exercise of the
power of judicial review to set aside government acts.
It also tends to assess
the judiciary to the rank of super legislature. Moreover, the judicial review
exercised by the supreme court and high court do play an important role in
establishing constitutional government in India by keeping the union and the
state governments within their respective jurisdictional spheres. Judicial
review is nothing but a type of proceeding in the court where a judge reviews
the lawfulness of the decision or the action which is made by the public body.
These are also a challenge to the way in which the decision is made rather than
the rights or wrongs of the conclusion reached.
At first the word judicial review was used in the court of law in the case of
Thomas Bonham v. College of Physicians
(1610) 8 Co Rep 114, where Dr Bonham was
forbidden to practice in London by the Royal college of physicians as he was not
having a license for the same.
This case is also known for the violation of
Principals of Natural Justice as in this case there is pecuniary bias. As Dr
Bonham is fined for his without a license, practicing the fine would be
distributed between the king and the college itself. Later judicial review was
also summarized in Marbury v. Madison
5 U.S. 1 (137) 1803, where the term period
of President Adam belonging to the federalist party came to an end and Jefferson
the anti-federalist came to power.
On his last day, Adam appointed the members
of the federal party as judges. But when Jefferson came to power, he was against
this. So, he later stopped Madison the secretary of state, from sending the
appointment letter to the judges. Marbury (one of the judges) approached the
Supreme Court and filed a writ of mandamus and here the Court refused to
entertain the plea and at first opposed the order of the legislature i.e.,
Congress and hence the US Supreme court developed the doctrine of judicial
Evolution Of Judicial Review:
The Doctrine of Judicial Review was for the first time propounded by the Supreme
Court of America. Originally, the constitution of United States did not contain
an express provision for judicial review but it was assumed by the Supreme Court
of United States in the historic case of Marbury vs Madison
2. LEd.60. Chief
Justice Marshall observed that "the constitution is either superior paramount
law, unchangeable by ordinary means or it is on a level with ordinary
legislative acts and like other acts is alterable when the legislature shall
please to alter it...........
Certainly all those who framed written
constitutions contempellate them as forming the fundamental and paramount law of
the nation and consequently the theory of every such government must be that an
act of the legislature repugnant to the constitution is void.... It is
emphatically the provonce and duty of the judicial department to say what the
In India the power of judicial review was exercised by the courts prior to the
commencement of the constitution of india. the British Parliament introduced
Federal System in India by enacting the Government of India Act 1935. Under this
act both the Central and State legislatures were given plenary powers in there
respective spheres. They were supreme in their alloted subjects like British
The Act of 1935 established the Federal Court so as to function as
an arbiter in central and state relationship. The Federal Court was also
empowered to scrutinize the violation of the constitutional directions regarding
the distribution of powers on introduction of federalism in india. The power of
judicial review was not specifically provided in the constitution but the
constitution being federal, the Federal court was entrusted impliedly with the
function of interpreting the constitution and determine the constitutionality of
Mauriee Gwyer, Chief Justice of Federal Court of India in Bhola Prasad v The
King Emperor AIR 1942 F.C.R 17 P20, observed that " we must again refer to the
fundamental proposition enumerated in 1878 3 AC 889 (Reg v Borah) that Indian
legislatures within their own spheres have plenary powers of legislation as
large and of the same nature as those of the parliament itself, if that was true
in 1878, it can not be less true in 1942.
The Federal Court of India vigorously worked for more than a decade with wisdom
and diginity and by various constitutional decisions. During the span of the
decade Federal Court of India and other High Courts reviewed the
constitutionality of large number of legislative acts with full judicial self
restraint, insight and ability.
Granville Austin in his book The Indian Constitution - Corner Stone Of a Nation
said that " the judiciary was to be an arm of the social revolution upholding
the equality that indians has longed for during colonial days, but had not
gained not simply because the regime was colonial, and perforce repressive, but
largely because the british had feared that social change would endanger their
rule.... The courts were also idealized becuase, as guardians of the
constitution there would be expression of the new law created by indians for
indians. judicial review, assembly members believed, was ' an essential power
for the courts of a free India, with a federal constitution'."
Under the statutory and constitutional provisions, the courts have the wide
range of powers of judicial review in India. It is to state that the
constitutional and statutory provisions of judicial review are totally
different. The courts must exercise these powers with self-control and great
caution. It is not expected from the courts that they phase out from the
boundary of their appropriate influences of judicial assessment.The constitution
of India provides an express provision for judicial review in the shape of
Article 13. which states as:
13(1). all laws in force in the territory of India immediately before the
commencement of constitution shall be void to the extent to which they are
inconsistent with the provisions of part 3rd of the constitution.
13(2). state shall not make any law which takes away or abridges the fundamental
rights conferred by part 3rd of constitution and any law made in contravention
of fundamental rights shall to the extent of contravention, be void.
13(3). law includes any ordinance, order, by-law, rule, regulation,
notification, custom or usage having the force of law.
Article 13 in fact provides for the judicial review of all legislations in india,
past as well as future. This power has been conferred on the High courts and the
Supreme court of India which can declare a law unconstitutional if it is
inconsistent with any of the provisions of part 3rd of the constitution.
Thus, the laws which take away or abridge the fundamental rights are liable to
be struck down as ultra-vires or void by the courts under art 13 (2) by
exercising the power of judicial review. Chief Justice Patanjali Shastri in
State of Madras vs. V.G.Row
AIR 1952 SC 196, observed that our constitution
contains express provision for judicial review of legislation as to its
confirmity with the constitution........ the courts in this country face upto
such important and none too easy task, it is not out of any desire to tilt at
legislative authority and a crusader's spirit, but in discharge of duty plainly
laid upon them by constitution.
This is specially true as regards the
fundamental rights as to which the court has been assigned the role of sentinel
on the qui vive. Chief Justice Kania in A.K.Gopalan vs. state of Madras
SC 27, pointed out that it was only by way of abundant caution that the framers
of our constitution inserted the specific provisions in Art 13...... In India,
it is the constitution which is supreme and all statute laws must be in
conformity with the constitutional requirements and it is for the judiciary to
decide whether any enactment is constitutional or not.
The fundamental subjects of judicial review in the constitution of India
relates to the following things:
India, judicial review broadly covers three aspects;
- judicial review of legislative action
- judicial review for judicial decision, and
- judicial review of administrative action
These facets of judicial review were pronounced by the S.C.I. in case of
L.Chandra Kumar v. Union of India AIR 1997 SC 1125 stating that the judges of
higher court have to interpret legislation up to this end that the
Constitutional values are not to be interrupted. To achieve this end, the judges
have to keep in mind that the The legislature passed the law, which is in
harmony by way of establishment of the Indian Constitution.
The powers to review
legislation are vested by way of the S.C.I. and state's higher courts, for the
resolution of judicial assessment. The judicial assessment of legislation is in
conformism, through the establishment of the Constitution.
In Brij Bhurshan vs. State of Delhi
, the Supreme Court struck down the East
Punjab Public Safety Act 1950, on the ground that pre-censorship restricted the
freedom of the press.
Ramesh Thapar vs State of Madra
s, AIR 1950 SC 124, Supreme Court again struck
down the Madras Maintenance of Public Safety Act 1949, on the ground that unless
a law restricting freedom of speech and expression is directed against
undermining the security of the state or to overthrow it, such law cannot fall
within the reservation of clause (2) of Article 19.
Shankari Prasad vs. UOI
the First Amendment was challenged on the ground that
it abrogated the fundamental right. The argument was based on the fact that the
law under Article 13 (3) shall include the constitutional amendment law. The
Supreme Court rejected the contention and held that the word law in Article 13
must be taken to mean rules or regulations made in exercise of constitutional
power and therefore A 13(3), did not affect amendments made under Article 13
Sajjan Singh vs. Rajasthan
, again the validity of the constitution, 17th
Amendment Act 1964 was in issue. The Court stuck to the position laid down in Shankari Prasad case and held that the constitutional amendments made under Art
368 fall outside the purview of judicial review by the courts.
This amendment was again challenged in Golaknath vs State of Punjab and Supreme
Court through Justice Subba Rao, held that:
- The power of parliament to amend the constitution is derived from
Article 245 read with entry 97 of list 1st of the constitution and not
from Article 368. Article 368 only lays down the procedure for the
amendment of the constitution. Amendment is a legislative process.
- An Amendment is a law within the meaning of art 13 (3), including
every kind of law, statutory as well as constitution law and hence a
constitutional amendment which contravened Art 13 (3) will be declared
Invoking the concept of Implied Limitations on the parliament's power to amend,
Chief Justice Subba Rao held that fundamental rights were given a transcendental
position under our constitution and are kept beyond the reach of parliament.
In order to remove the difficulties created by the decision of Supreme Court in
Golaknath case, parliament ended with the 24th Amendment Act 1971. This
amendment added the following things to Article 13 and Article 368.
Art 13 (4). "nothing in this article shall apply to any amendment of this
constitution made under article 368."
Article 368. Procedure for amendment of the constitution was replaced by Power
of parliament to amend the constitution and the procedure thereof.
Article 368(3). "nothing in article 13 shall apply to any amendment made under
Thus, this amendment restored the amending power of the parliament and also
extended its scope by adding the words " to amend by way of addition or
variation or repeal" any provision of this constitution in accordance with the
procedure laid down in Article 368.
In 1972, The Supreme Court was called upon to consider the validity of the 24th,
25th and 29th Amendment in Keshvananda Baharti's case AIR 1973 SC 1461. The
Supreme Court emerged victorious by asserting its institutional role vis-a-vis
parliament in constitutional powers and strengthening its powers of judicial
review through the Basic Feature Doctrine. The doctrine of basic feature has
since become the bedrock of constitutional interpretation in India.
The last straw was the Allahabad High Court's decision staying Mrs. Gandhi's
Election as Member of Parliament. Indira Gandhi filed an appeal before the
Supreme Court from the decision of the Allahabad High Court in which it was held
that the appelant had committed certain malpractices in her election. Before
Supreme Court could hear the Appeal the parliament passed the Constitutional
Amendment Bill 1975, which inserted clause 329 A in the constitution and placed
the election of Prime Minister and Speaker beyond the purview of judicial
scrutiny by way of judicial review.
Supreme Court held that the Democracy is the basic structure of the
constitution. Therefore, if by 329 A, any essential feature of democratic,
republican, structure of Indian polity is damaged or destroyed it would be
ultra-vires of the constitution.
In sharp contrast was the Supreme Courts ruling in ADM Jabalpur case. During
the Emergency the leaders of the opposition were put in prison, the press was
muzzled and fundamental rights suspended. Upsetting rulings by Twelve High
Courts in the country, the Supreme Court held that during the Proclamation of
Emergency under Article 352 of the Constitution, a court was powerless to
protect an individual from state action notwithstanding such action being
contrary to law and resulting in complete deprivation of the right to life and
It was after the emergency was lifted there dawned a realization of the
importance of decisions such as Keshavananda Bharti case, and the importance
generally of the power of judicial review. The activist role that the Supreme
Court was to assume in later years is often explained as a "judicial penance"
for failing the people at a critical moment in history. Post Emergency activism
by the courts was also inspired by the desire to shake off the elitist image the
supreme court had acquired in the earlier years. The courts opened up their
doors to the poor and voiceless and acquired in time, the role of a social
auditor, becoming in Justice Goswami's famous words," the last resort for the
bewildered and the oppressed".
Minnerva Mills Ltd vs. UOI, the Supreme Court struck down clauses (4) and
(5) of Article 368 inserted by the 42nd Amendment, on the ground that these
clauses destroyed the essential feature of the basic structure of the
constitution. Limited amending power is a basic structure of the constitution,
since these clauses removed all limitations on the amending power and thereby
conferred an unlimited amending power, it is destructive of the basic feature of
Thus, for the amendment to be valid the primary thing to exist is that it should
not destroy the basic structure of the constitution. The judiciary occupied a
position higher than corresponding organs in its capacity as the arbiter of the
fact as to what constitutes the basic structure of the constitution.
The principle of judicial review was reiterated and followed by the Supreme
Court in subsequent case law. In the subsequent case of S.P Sampat Kumar v
Union of India and L.Chandra Kumar v Union of India. The constitutional validity
of Art 323 (A) and the provisions of Administrative Tribunals Act 1985 which
excluded the jurisdiction of the High Courts under Art 226 and 227 was in issue.
The Supreme Court held that the power of judicial review over the legislative
action vested in the High Courts under Art 226 and the Supreme Court under Art
32 of the constitution is an integral and essential feature of the constitution
and formed part of its basic structure.
The basic structure doctrine was yet again reaffirmed in the case of I.R.Coelho
vs State of Tamil Nadu AIR 2007 SC 8617, in which the Supreme Court held that
any law placed in the 9th schedule after April 24, 1974 will be open to
challenge. The Court held that even through the Act is put in the 9th schedule
by a constitutional Amendment its provisions would be open to challenge on the
ground that they destroy or damage the basic feature of the constitution.
Supreme Court Advocates on Record Association vs Union of India, Writ Petition
(Civil) No.13 of 2015, the National Judicial Appointments Commission Act was
challenged on the ground that the NJAC violates judicial independence by
creating a system in which the Chief Justice would no longer have primacy in
judicial appointments and in which the judiciary would not have majority control
over the NJAC in a system where the political influence of the executive and
parliament would be dominant. Also it grants power to the parliament to change
and alter judicial selection criteria and procedures, which constitutes the
violation of judicial independence, separation of powers and Rule of Law.
The Supreme Court observed that the impugned Amendment and the Act are struck
down as unconstitutional. pre-existing scheme of appointment of judges stands
revived. However, the matter be listed for consideration of the surviving issue
of grievances as to working of pre-existing system.
In J. P. Bansal v State of Rajasthan AIR 2003 SC , case of the S.C.I. has
examined that the impartiality of the judiciary endangers in the community
attention. Although the court interpreting the Constitution enjoys freedom.
Under this freedom the court has not failed in interpreting the statute. The
rule of law is the essential component of the judicial assessment, as soon as
the court interpret statute and provide their own view for amending the statute.
Such aforesaid judgment is the injurious to public interest.
Supreme Court of India in P.U.C.L. & others v. U. O. I. AIR 2003, case
examined that the court will not interfere on the political question and on the
policy matter, unless it is essential for the judicial review. However, court
can interfere only on the selective ground. The court further stated that the
government has to be bound by all the accessible possibilities to avoid the
violence inside the establishment of the Indian Constitution.
Shayara Bano vs Union Of India
W.P.No. 118 of 2016 in this case supreme court of
india held that triple talaq is a unilateral power given to the husband to
divorce his wife and on the face of it, it looks arbitary therefore triple talaq
is unconstitutional being violative of fundamental rights. Justice Nariman
propunded Doctrine Of Manifest Arbitration and held that triple talaq is
violative of Art 14 of the constitution of India.
In Joseph Shine vs Union of India AIR 2018 S.C.I held that sec 497 of Indian
Penal Code is unconstitutional. Similarily before Supreme Court of India in
Navjot Singh Joher vs Union of India AIR 2018 SC the constitutional validity of
sec 377 was challenged on the ground that it violates fundamental right. Justice
Chandrachud observed that " i am not bound by societal morality, i am bound by
constitutional morality and if the constitution protects the interests of a
single citizen of India i am bound to protect it". Therefore Sec 377 of I.P.C
was decriminalized and was held to be unconstitutional.
Anuradha Bhasin vs. Union of India
2020 SC, The Union Territory of Jammu and
Kashmir was directed by Supreme Court to review all orders suspending the
internet services forthwith, all orders not in accordance with law must be
revoked. Supreme Court held that the Freedom of Speech and Expression and the
Freedom to practice any Profession or carry on any Trade, Business or Occupation
over the medium of internet enjoys constitutional protection under Art 19 (1)
(a) and Art 19 (1) (g). The restriction upon such fundamental rights should be
in consonance with the mandate under Art 19 (2) and Art 19 (6) of the
constitution inclusive of the test of Proportionality.
Although Doctrine of Judicial Review is the basic structure of the constitution
of India, it is not justified in policy matters. However, it is justified in
policy matters provided that the policy is arbitary, unfair or violative of
fundamental rights. In Kerala Bar Hotels Association vs State of Kerala, the
Supreme Court held that the courts must be loathe to venture into an evaluation
of state policy which must be given a reasonable time to pan out. If a policy
proves to be unwise, oppressive or mindless, the electorate has been quick to
make the government aware of its folly.
The Doctrine of Judicial Review is thus, the interposition of the judicial
restraint on the legislative, executive and judicial actions of the government.
It has assumed the status of permanence through judicial decisions laid down
from 1973 till now. Thus, Judicial Review is the basic structure of the
constitution of India and any attempt to destroy or damage the basic structure
Features Of Judicial Review
- Power of judicial review can be exercised by both the Supreme
Court and High Courts, as under Article 226 a person can approach
the High Court for violation of any fundamental right or for any
legal right. Moreover, under the Article 32 a person can move to the
Supreme Court for any violation of the fundamental right or for any
question of law. However, the final power to interpret the
constitution lies with the Supreme Court. The Supreme Court is the
highest court of the land and its decisions are binding all over the
- Judicial Review of both state and central laws which means that
laws made by centre and state both are the subject to the judicial
review, altogether the laws, order, constitutional amendments,
bye-laws, ordinance and all other notifications are subject to
judicial review which are included in Article 13(3) of the
constitution of India.
- Judicial review is not applied automatically which means that
the concept of judicial review needs to be attracted and applied.
The apex court doesn't itself apply for judicial review; it can be
used only when a question of law or rule is challenged before the Hon'ble court.
- Judicial Review is governed by the principle of procedure which
is established by law as given under the Article 21 of the Indian
Constitution. However, the law has to pass the test of
constitutionality if it qualifies then it can be made a law and on
the other side, the court can declare it to be null and void.
- Judicial review of Ordinances, here, Article 123 and 213 of the
Indian constitution gives the president and the governor of the
state to pass an ordinance. And an act of ordinance by the president
or the governor is within the same restrictions which are placed on
parliament which makes any law. This power is used by the president
or governor in exceptional conditions only and this power should not
be used mala fide.
- Judicial review of Money Bill, here, Article 110(3) of the
constitution of India states that whenever a question arises for
whether a bill is a money bill or not the decision of the speaker of Lok Sabha shall be final. In the present
situation, a money bill is beyond the power of Judicial Review.
- Grounds for Judicial Review, where the Constitutional Amendment
Judicial Review in this phase is done for all the constitutional
amendments done by the authority. All the amendments which are in
violation of the fundamental rights are declared to be void and it
is held to be unconstitutional. Altogether, the judicial review for
the constitutional amendments can be traced in history.
The extent of this judicial review in the Indian courts emerged in three
dimensions; first, to establish the fairness in administrative action, second,
to protect the guaranteed constitutional fundamental rights and finally, to rule
on questions of legislative competence between the Centre and the states.
The Judicial Review (As A Part Of The Basic Structure)
In the landmark case of Kesavananda Bharati v. the State of Kerala
AIR 1973 SC
1461, which was decided by a nine judge bench the doctrine of the basic
structure was laid down, which stated that any law that is made should not be in
violation of the fundamental rights and if the amendments are made then it
should be made as such that they do not eradicate the basic structure.
Basically, the legislature has power to amend the Constitution, but such
amendments shall not change the basic structure of the Constitution.
was further noted that the basic structure was built on the foundation of
dignity and freedom of the individual which undoubtedly couldn't be amended. It
was also noted that in this case the above are only illustrative and not
comprehensive of all the limitations on the power of amendment of the
It was also observed that fundamental rights are of utmost
importance and they should be preserved with all due respect by the state and
provisions should be made to protect them and abrogate them. Along with this
notion, this case raised questions on the constitutionality of the 25th
amendment and hence, declared that the basic structure of the fundamental rights
should not be violated by the legislature or the state under the provisions of
the Article 368 and the second part of the Article gave the jurisdiction of the
court, a boot.
In another important case of Minerva Mills Ltd. v. Union of India
AIR 1980 SC
1789, the extended portion of Article 31C was eradicated completely with the
rationale that it attacked the fundamental rights under Article 368. In this the
judgment also stood up for the concept of the judicial review which is not made
available to the people in case of infringement of the fundamental rights.
In the case of S.P. Sampath Kumar v. Union of India
(1987) 1 SCC 124 at 128
relying on Minerva Mills Ltd. Case it was stated that it was well settled and
established that judicial review was a basic and essential feature of the
Constitution. Moreover, if the power of judicial review was absolutely
eliminated, the Constitution would lose its basic structure.
Judicial Review With Refrence To Articles 31-A, 31-B, 31-C
Article 31-A was added to the Constitution of India by the First Amendment,
1951. The fourth amendment substituted various clauses in it. This Article of
Indian Constitution gave the people of India the right to hold and dispose of
their property as they see fit. According to which, the government can acquire
the property of the people and by doing so, the fundamental rights mentioned in
Article 14 and 19 of Indian Constitution should not be violated.
other words, Article 31 A of Indian Constitution was immune to Article 14 and 19
of Indian Constitution that provide for right to equality and the right to
freedom respectively, and this amendment helped in the abolition of the Zamindari system as the government took the land from the Zamindars and used it
for public welfare by either redistribution or agriculture.
The government also
took control of different private companies in order to use them for enhanced
growth. However, this could be done for a fixed amount of time after which, the
control had to be returned and the government redistributed the mining rights
from mine lords and took control of the production and the distribution of
various other resources.
In Waman Rao & ors v. UOI & ors. and I R Coelho v. State of TN case
first amendment in which the Article 31A was introduced and the fourth amendment
was held to be constitutional, which substituted the new clauses to this
Article. Hence, relying on the judgments of Minerva Mills case and Waman Rao
case and I R Coelho case Article 31A can be stated as constitutionally valid.
Article 31-B is also the result of the 1st Amendment Act of 1951, it was added
as a constitutional device to protect the specified statutes from any attack on
the basis that they infringe Part III of the Constitution. Moreover, it has
retrospective effect which is clear from the words ever to have become void. It
is in reference with the acts and laws mentioned in the IX Schedule of the
Indian Constitution, moreover, the IX Schedule of Indian Constitution is a list
of acts and laws which in the court of law cannot be challenged.
In other words,
basically any such acts mentioned in this schedule are out of the reach of the
Indian judiciary. Article 31b of the Indian Constitution states that the
provisions mentioned in Article 31a are immune from Indian judiciary and
therefore cannot be invalid on the basis that they might violate the fundamental
rights under the Articles 14, 19 and 31 of Indian Constitution.
Article 31-C of Indian Constitution was included through the 25th amendment
act of 1971 through which the government tried to give primacy to some Directive
Principles of State Policy over the fundamental rights. It also provides
immunity from any challenge on the basis of violation of the Articles 14, 19 and
31, and any law enacted for implementing the directives in clause (b) and (c) of
The Supreme Court in the case of Sanjeev Coke Manufacturing Company
v. M/s. Bharat Coking Coal Ltd.
AIR 1983 SC 239, struck down article 31C as
unconstitutional (Amended portion in 42nd Amendment Act) on the ground that it
destroys the basic features of the Constitution. The objectives were set out in
the Part IV has to be achieved without abrogating the means provided for by Part
III. Thus, there's no conflict between the directive principles and the
fundamental rights as these are meant to supplement one another and the Court
held that article 31C as originally introduced by the 25th Amendment is
There are two conditions which must be fulfilled for the execution of the
Article 31 C; firstly, a law for giving affect to the policy of the state to
implement a Directive Principle in Article 39(b) or (c). Secondly, the
Legislature made a declaration to that effect.
However, the question that whether or not the act is meant to secure the aim
contained in Article 39(b), (c) doesn't depend on the declaration made by the
legislature but on the contents of the act as found by the court.
A Legal Outlook In Regard To Constitutional Amendments
Judicial Review in this period is done for all the constitutional amendments
done by the authority and all those amendments which are in violation of
fundamental rights are declared to be void and it is held to be
unconstitutional. All the judicial review for the constitutional amendments can
be traced in history. We have already seen in the above-mentioned case laws that
the constitutional amendments were challenged and all those against the
constitution are declared unconstitutional and held void. We can trace the marks
of judicial review of the constitutional amendment in the above-mentioned cases.
The role of Judicial Review in Indian Constitution is to protect and provide
liberty and freedom to the people. Some thinkers of India have observed that the
scope of judicial review in India is very limited and the courts in India do not
enjoy as wide jurisdiction as the courts in America.
The right to constitutional
remedies is itself a fundamental right and can be enforced in the form of writs
evolved in common law such as first, habeas corpus which is to direct to release
a person who is detained unlawfully, second, mandamus which is to direct a
public authority to do its duty, third, quo warranto which is to direct a person
to leave an office assumed wrongfully, fourth, prohibition which is to prohibit
a lower court from proceeding on a case and lastly, certiorari where the power
being given to the higher court to remove a proceeding from a lower court and
bring it before itself.
The review of constitutional Amendments by judiciary in relation to
Fundamental Rights and its legal Validity has been a debatable Political issue.
The doctrine of basic Structure has allowed the application of judicial review
to Constitutional amendments involving Fundamental Rights also.
evolved in Kesavananda Bharati case, 1973,
moreover, the parliament can amend
the constitution under the Article 368 but such amendments should not take away
or violate the fundamental rights and any law made in contravention with this
rule shall be made void (Article 13).
As we have seen in the Kesavananda Bharati
case the constitutional validity of 24th amendment (Enables Parliament to dilute
Fundamental Rights through Amendments of the Constitution, and empowers it to
amend any provision of the Constitution), 25th amendment (The amendment also
exempted any law giving effect to the article 39(b) and (c) of Directive
Principles of State Policy from judicial review, even if it violated the
Fundamental Rights) and 29th amendment was challenged. The Court upheld the 24th
Amendment Act and held that even though the Parliament is entitled to amend any
provision of the Constitution it is void since it takes away invaluable
Even in the case of Golak Nath vs. State of Punjab
SC 1643, the Validity of three constitutional amendments (1st, 4th and 17th) was
challenged and it was upheld that Amending power and legislative Power of the
Parliament were essentially the same. Which means that the Amendment Acts under
Article 368 Cannot amend Fundamental Rights, as it Would Violate Article 13. In
this case it for the first time the doctrine of prospective overruling was
applied and it was held that the 17th amendment will be valid.
The court regarding the judicial review process has evolved few guidelines which
are to be used as guide in the process, which are;
- Doctrine of Severability:
While interpreting the impugned law, the court needs to see whether or not the law as a whole or some parts of it is unconstitutional. The Court can declare the impugned law, as an entire or a part of it, unconstitutional as the case may be.
- Doctrine of Progressive interpretation:
The Indian judiciary has been guided by the doctrine of progressive interpretation, which means that the Courts have interpreted the provisions of the Constitution in the light of the Social, economic and legal Conditions present at that point of time.
- Doctrine of Prospective Overruling:
It is based on the premise that judicial invalidation or a new view of interpretation of law won't affect the past transactions or the vested rights but will be effective regarding future transactions only.
- Doctrine of Empirical Adjudication:
While exercising the power of judicial review, the Courts should make sure that they are not dealing with hypothetical cases, and therefore, it is necessary that the matter brought before the court must be of a concrete nature. The court between the parties concerned in a particular case seeks to confine its decisions as far as practicable within the narrow limits of the controversy.
- When the Constitutional validity of any law is challenged, the court will not hold it to be ultra vires unless the invalidity is obvious from all doubts, for there is always a presumption in favor of its validity. The court always begins with this presumption that the legislature doesn't exceed its powers, nor does it make any law that's inconsistent with the spirit of the Constitution.
Limitations Of Judicial Review
- Violation of fundamental rights
- Violation of various other constitutional restrictions embodied in the constitution
- Enactment of legislative act in violation of constitutional mandates regarding distribution of powers
- Delegation of essential legislative power by the legislature to the executive or any other body
- Violation of implied limitations and restrictions
When we talk about come judicial review of administrative action though the
presumption of validity is not as strong in the case of administrative action as
in the case of statutes. However, when the legislature expressly leaves a matter
to the discretion of an administrative authority the courts have adopted an
attitude of restraint.
It is also said that the question the legality of the
exercise of discretionary power cannot be questioned unless and until it is an
abuse of discretionary power, which includes mala fide exercise of power or,
exercising the power for an improper motive or, decision based on irrelevant
considerations or in disregard of relevant consideration, and in some cases the
unreasonable exercise of power and the non-exercise of discretion which comes
when the power is exercised without proper delegation and when it is acted under
- The observer describes the judicial review as an undemocratic system; it empowers the court to make a decision on the fate of the laws passed by the legislature, which represent the sovereign will of the people.
- The Constitution of India doesn't clearly describe the system of judicial review; it rests upon the idea of several articles of the constitution.
- When a law is struck down by the Supreme Court as unconstitutional, the decision becomes effective from the date on which the judgment is delivered. Moreover, a law can face judicial review only when an issue of its constitutionality arises in any case being heard by the Supreme Court. As such, when the court rejects it as unconstitutional, it creates administrative problems, and the judicial review decision can create more problems than it solves.
- Moreover, many critics of the judicial review system see it as a reactionary system, as they say that while determining the constitutional validity of any law, the Supreme Court often takes a legalistic and conservative approach, thus it can also reject progressive laws enacted by the legislature.
- Judicial review may cause delay and inefficiency. The people in general and the law-enforcing agencies, especially sometimes plan to go slow or keep their fingers crossed in respect of the implementation of a law. However, they too prefer to attend and let the Supreme Court first decide its constitutionality during a case which will precede it at any time.
- It has been noted that on several instances the Supreme Court reversed its
earlier decisions. The judgment in the Golaknath case reversed the earlier
judgments and the judgment in the Kesavananda Bharati case reversed the judgment
in the Golaknath case. Same way the enactment was held justifiable, and then
invalid and then again justifiable and such reversals also reflect the element
of subjectivity within the judgments.
A large number of the supporters of judicial review don't accept the arguments
of the critics; they argue that judicial review is an essential and very useful
system for Indian liberal democratic and federal system. It has been playing an
important role and desired in the protection and development of the
It is observed that Judicial Review is essential for maintaining the supremacy
of the Constitution and for checking the possible misuse of power by the
legislature and executive. It is also a device for protecting the rights of the
The grant of judicial review power to the judiciary is also important for
strengthening the position of judiciary. It is also important for securing the
independence of the judiciary. It was noted that the power of Judicial Review
has helped the Supreme Court of India in exercising its constitutional duties.
As we know the judicial review is very important but at the same time absolute
power to review cannot be granted and by observing the judicial review as a part
of basic aspect of the Indian Constitution and the courts in India have given
altogether a different meaning to the theory of checks and balances. Judicial
review also plays a vital role as protector of the values of the constitutional
and over the legislative action is vested in the high court's and Supreme Court
under Articles 226 and 32 of the Indian constitution respectively. It is
observed that the Constitution of India, the supreme law of the land believes
that amend your procedures and doings to improve in the future.
The Constitution 44th Amendment Act, 1978, signifies the demise of the
fundamental Right to Property, where the property right turned out to be the
most controversial right with lots of reforms and criticism along with it. With
the Article 31, Article 19(1) (g) and Article 31C being stated as
unconstitutional and its second part being shifted to Article 300A for making
the fundamental right a constitutional right, the property law kept diminishing.
Ultimately, we have developed the concept of judicial review and it has become
the part of basic structure in case of Minerva Mills v. Union of India
and the basic structure doctrine also helps in preserving and protecting the
spirit of the constitution and to preserve the nature of democracy of India and
protect the right of the people.
Moreover, we also see that any amendment or law which is violative of the rights
of the people are struck down by the court on the basis of the basic structure
doctrine and thus any law that tries to change the basic structure of the
constitution is therefore invalid. So, it is correct to say that judicial review
has grown to safeguard the individual right, to stop the use of arbitrary power
and to prevent the miscarriage of justice.
- Lavanya Kaushik, 'The place of judicial review in Indian Constitution & its history'
- K.K Ghai, 'Judicial Review in India: Meaning, Features and Other Details'
- L.Chandra Kumar v. Union of India AIR 1997 SC 1125
- Brij Bhurshan vs. State of Delhi AIR 1950 SC 129
- Shankari Prasad vs Union of India AIR 1951, SC 455
- Sajjan Singh vs. State of Rajasthan AIR 1965 SC 845
- Keshvananda Baharti's case AIR 1973 SC 1461
- ADM Jabalpur vs. Shivakant Shukla AIR 1976 SC 1207
- Minnerva Mills Ltd vs. Union of India AIR 1980 SC 1789
- S.P Sampat Kumar v Union of India AIR 1987 SC 386 and L.Chandra Kumar v Union of India AIR 1997 SC 1125
- Supreme Court of India in P.U.C.L. & others v. Union Of India AIR 2003
- Kerala Bar Hotels Association vs State of Kerala AIR 2016 SC 163
- Diganth Raj Sehgal, 'Articles 31A to 31C of Indian Constitution'
- Waman Rao & ors v. Union of India & ors (1981) 2 SCC 362 and I R Coelho v. State of Tamil Nadu 2007 (1) SC 137
- Dev, 'Ninth Schedule Article 31A-31B of the Constitution through the Kaleidoscope of the Principles it stands on'
- Mohammad Moin Uddin and Rakiba Nabi, 'Judicial Review Of Constitutional Amendments In Light Of The Political Question Doctrine: A Comparative Study Of The Jurisprudence Of Supreme Courts Of Bangladesh, India And The United States'
- Amogh Dabholkar & Vaishnavi Kamble, 'Fundamental Duties as a mean to achieve responsible Citizenry'
- Negi Mohita, 'The Significance of the 24th Amendment to the Constitution of India'
- Laxman Singh Dudi, 'Emergence of Article 31 A, B and C and its validity'