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Essence of Judicial Review: Safeguarding Democracy and Constitutionalism in India

Law became the inevitable part of the society. People are vested with the rights and entered into contract with the government, in return government give the people protection against the wrong and injustice. This is known as Social Contract Theory given by Hobbes. As the three organs of government-Legislature (to make law), Executive (to implement law) and Judiciary (to interpret law) are ultimately existed to ensure rights, justice and ensure welfare of the society.

If the powers vested goes monarchy and left unchecked, it will lead to misuse of powers. The concept - Separation of powers by Montesquieu is the doctrine that fits into the frame of 'tale as old as time'.

This doctrine mandates that every organ of the state shall function in its own operational area without hampering and interfering in the functions of the other organs. So, to keep check and balance on the power of each organ of government we have further adopted Judicial Review. We have adopted this feature from the United States Constitution and main feature of Indian Constitution. It is the ultimate power of the judiciary to review and determine the validity of a law or an order may be described as the powers of judicial review.

This system in India has been governed by the principal of 'procedure established by law' under which the test whether the law has been made with procedures of law or not, if not will be declared unconstitutional. Judicial review affirms as well as neglects. This paper focus on the history of judicial review, importance, scope, multi faced dimensions of judicial review and discussion whether the vital play of judicial review is a boon or bane for the Indian Democracy.

Judicial review is the power bestowed upon the judiciary by the constitution, by virtue of which the judiciary can examine legislative enactments and executive orders of the governments, be it state or central. [1] Indian judiciary system drives based on rule of law and considers constitution as the supreme law.

The Indian constitution is the law of the land and if any law passed violates the basic structure of the constitution the Indian judiciary is having the power to nullify that law. The term judicial review is not there in Indian Constitution but many articles are there which gives the clear idea of judicial review in it.

The Indian judiciary are having the powers to examine the actions of legislature, executive, administrative arms of the government and to ensure that such actions should adhere to the provisions of our constitution. If found unconstitutional, the following provision shall be made void. As article 13(2) of Indian constitution states any law made by the parliament that abridges the right conferred to the people under Part 3 of the constitution is void-ab-initio.

To understand what is judicial review in India, one can even compare it to the US Constitution's judicial review, as both are based on similar lines. The Parliament is not held as the supreme authority. Both parliamentary and state legislative laws can be reviewed by the Supreme Court for any constitutional discrepancies. Judicial review is the cornerstone of constitutionalism, which implies limited government. [2]

Background Of Judicial Review:

Judicial review traces its origin to the United States of America where it was put forward in the case of Marbury v. Madison (1803) [3] . Here the President's term period belonging to John Adam of the federalist party came to an end and Thomas Jefferson the Democratic Republic 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 it.

He 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. Court refused to entertain the plea and first opposed the order of the legislature and thus the US Supreme court developed the doctrine of judicial review. Dr. B.R. Ambedkar, characterized judicial review as the 'Heart of the Constitution.'

The concept of Judicial Review of India was discussed for the first time in Emperor v. Burah (1877) [4] , where the Calcutta High Court, as well as the Privy Council, adopted the view that the Indian courts had power of Judicial Review subject to certain limitations. The role of Judicial Review in Indian Constitution is to protect liberty and freedom of the people.

Constitutional Provisions Of Judicial Review:

  • Article 13(2): Confirms that all laws and regulations that are made by the Union or the States conflicting with the Fundamental Rights will be invalid and void.
  • Article 32: Ensures the option to move the Supreme Court for the enforcement of the Fundamental Rights and enables the Supreme Court to give orders or directs or writs for that purpose.
  • Article 131: Affirms the Supreme Court's original jurisdiction in any dispute between Government of India and one or more states, between government of India and any state or states on one side and one or more states on other side and disputes between two or more states.
  • Article 132: Accommodates that Supreme Court has re-appraising and appellate jurisdiction concerning Constitutional cases.
  • Article 133: Ensures appellate jurisdiction of Supreme Court in appeals from high court regarding civil matters.
  • Article 134: Ensures appellate jurisdiction of Supreme Court in appeals from high court regarding criminal matters.
  • Article 135: Enables the Supreme Court to practice the jurisdiction and powers of the Federal Court under any pre-constitutional law.
  • Article 137: Confers an exclusive power to the Supreme Court to review any judgment articulated or order passed by it.
  • Article 143: Empowers the President to seek the opinion of the Supreme Court on any matter relating to the judiciary or fact and any judicial-related doubts before the Constitution.
  • Article 226: Authorizes the High Courts to give orders or directions or writs for the implementation of the Fundamental Rights and any of some other purposes.
  • Article 227: States the power of superintendence over all courts by the High Court.
  • Article 245: Deals with the extension of the territorial scope of laws and regulations made by the Parliament and the Legislature of the States.
  • Article 246(3): States that the powers of both parliament and state legislatures are subject to provisions of the Constitution of India.
  • Article 251 and 254: State that in case of inconsistency between union and state laws, the state laws shall be void.
  • Article 372(1): Authorizes the continuation of pre-existing provisions of the Constitution.

Scope Of Judicial Review:

The makers of the Constitution very judicially incorporated in it the provisions of Judicial Review to maintain the balance of federalism, to protect the fundamental rights guaranteed to the citizens and to afford a useful weapon for equality, liberty and freedom. Judicial review emerged with three dimensions:
  • Establish fairness in administrative actions
  • To guarantee constitutional fundamental rights
  • To rule on questions of legislative competence between the Centre and the states.

Functions Of Judicial Review:

The two vital functions of judicial review are as follows:
  • Making the actions of government legitimate
  • To secure the Constitution from any undue encroachment by the Government.

Features Of Judicial Review:

  • Exercised By Supreme And High Courts: Article 32 states that a person can move to the Supreme Court for any violation of a fundamental right or for a question of law. Article 226 states that a person can approach the high court for violation of any fundamental right or for any legal right. But the final power to interpret the constitution lies with the apex court i.e.. Supreme Court.
  • Central And State Laws: Laws made by Centre and state both are the subject to the judicial review. As of article 13(3) - All the laws, order, bye-laws, ordinance and constitutional amendments and all other notifications are subject to judicial review.
  • Principle Of Procedure Established By Law: Judicial Review is governed by the principle of "Procedure established by law" as mentioned in Article 21. The law must pass the test of constitutionality, if it qualifies it can be made as a law. On contrary effect, the court can declare it as null and void.
  • Not Suo Motu: The Supreme Court or the high court for that matter do not use their authority to conduct a judicial review by a suo motu action. However, such power is utilized when there is a question of law that comes before the courts or during the court proceedings.
  • Not Automatically Applied: The concept of judicial review needs to be attracted and applied. The Supreme Court cannot itself apply for judicial review. It can be used only when a question of law before the court.

Why Judicial Activism Is Prime?

The Black's Law Dictionary defines judicial activism as "judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies." The active role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism.

The reasons why judicial activism is considered as prime are as follows:
  • Verifies the credibility of the expression "Procedure Established by Law."
  • Checks whether the law concerned has been judiciously enacted according to the ethos of the Constitution.
  • Serves as the supervisory entity ensuring that the laws passed by the legislative, executive and administrative organs of the government comply with constitutional ideals.
  • Validates the lawfulness and appropriateness of an administrative decision.
  • Protects the Fundamental Rights of the citizens.
  • Prevents misuse and exploitation of power.
  • Resolves controversial discrepancies in laws and acts.
Some ancillary reasons include the growing consciousness among the laity for their social, legal, constitutional rights, well-being, establishment of various civil rights group etc. which also accounts for judicial activism.

Kesavananda Bharati v. State of Kerala (1973) [5]: The judgement defined the basic structure of the Constitution. The Supreme Court held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament's amending power, the basic structure of the Constitution could not be abrogated even by a constitutional amendment. This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament those conflicts with the basic structure of the Constitution.

Golaknath & Ors vs State of Punjab & Anrs (1967) [6]: The questions, whether the amendment is a law and whether Fundamental Rights can be amended or not. Supreme Court contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required. Also added that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.

Vishaka v. State of Rajasthan (1997) [7]: The important case that reminds the need of Judicial activism. Here, the Supreme Court laid down guidelines that ought to be followed in all workplaces to ensure proper treatment of women. It further stated that these guidelines should be treated as a law until Parliament makes a legislation for enforcement of gender equality.

A.K. Gopalan v. State of Madras (1950) [8]: Supreme Court rejected the argument that to deprive a person of his life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure must be fair, reasonable, and just.

How Judicial Activism Manifested?

  • Judicial review
  • Constitutional interpretation
  • Public Interest Litigation
  • Access to international statutes for ensuring constitutional rights

Pros Of Judicial Review:

  • Judicial Activism sets out a system of balances and controls the other organs of the government.
  • It accentuates required innovation by way of a solution.
  • In cases where the law fails to establish a balance, Judicial Activism allows judges to use their personal judgment.
  • It places trust in judges and provides insights into the issues.
  • The oath of bringing justice to the country by the judges does not change with judicial activism. It only allows judges to do what they see fit within rationalized limits. Thus, showing the instilled trust placed in the justice system and its judgments.
  • Judicial Activism helps the judiciary to keep a check on the misuse of power by the state government when it interferes and harms the residents.
  • In the issue of the majority, it helps address problems hastily where the legislature gets stuck in taking decisions.

Cons Of Judicial Review:

Judicial Review surpasses its power to stop and misuse or abuse of power by the government as it limits the functioning of the government.

It clearly violates the limit of power set to be exercised by the Constitution when it overrides any existing law.

The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases. Judicial activism can harm the public at large as the judgment may be influenced by personal or selfish motives.

Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.

Judicial Restraint:

Judicial Restraint is the opposite of judicial activism where it puts obligation to follow constitutional laws while implementing its duties. It encourages the judiciary to respect the laws or rules set out in the constitution. Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. In short, the courts should interpret the law and not intervene in policy making.

S.R. Bommai v. Union of India (1994) [9]:
Explicit how restraint practiced by Judiciary. The judgement stated that in certain cases the judicial review is not possible as the matter is political. According to the court, the power of article 356 was a political question, thus refusing judicial review. The court stated that if norms of judiciary are applied on matters of politics, then it would be entering the political domain and the court shall avoid it.

Judicial Overreach:

When Judicial Activism goes overboard, becomes Judicial Adventurism, referred to as Judicial Overreach. In simpler terms, it is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government.

Judicial Overreach is undesirable in a democracy as it breaches the principle of separation of powers. It is an extreme form of judicial activism whereby the judiciary oversteps its jurisdiction and makes arbitrary and impractical intrusion in the executive or the legislative domain, thereby usurping its power; as such it is undesirable for democracy as it disrupts the finely balanced sharing of power structure enjoined by the constitution.[10]

Famous case of Judicial Overreach is censorship of the Film Jolly LLB 2 [11]. The case was filed as a writ petition, and alleged that the film portrayed the legal profession as a joke, making it an act of contempt and provocation. The Bombay High Court appointed a three-person committee to watch the movie and report on it.

This was viewed as unnecessary, as the Board of Film Certification already exists and is vested with the power to censor. Based on the report of the committee, four scenes were removed by the directors. It was seen as violative of Article 19(2), as it imposed restriction on freedom of speech and expression.

Judicial Review A Boon To Way Forward:

When the legislature fails to make the necessary legislation to suit the changing era and governmental agencies fails to perform their administrative functions sincerely, it leads to an erosion of the confidence of the citizens in the constitutional values and democracy.

In such a scenario, the judiciary steps into the areas usually earmarked for the legislature and executive and the result is the judicial legislation and a government by judiciary. In case the fundamental rights of the people are trampled by the government or any other third party, the judges may take upon themselves the task of aiding the ameliorating conditions of the citizens.

The greatest asset of the judiciary is the confidence of commanding and the faith it inspires in the minds of the people in its capacity to do even-handed justice and keep the scales in balance in any dispute.

Judicial activism is a product fabricated solely by the judiciaries and not backed by the Constitution. When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could be rightly said that the judiciary then begins to invalidate the concept of separation of powers set out in the Constitution.

If judges can freely decide and make laws of their choices, it would not only go against the principle of separation of powers but will result in chaos and uncertainty in the law as every judge will start writing his own laws according to his fads and quirks.

Judicial exercise must be respected to maintain a clear balance. Making laws is the function and duty of the legislature, to fill the gap of laws and to implement them in a proper manner. So that the only work remaining for the judiciary is interpretations. Only a fine equilibrium between these government bodies can sustain the constitutional values.

As the Chief Justice of India, N.V. Ramana, has rightly stated, "If the judiciary does not have the power of judicial review, then the functioning of democracy in this country would be unthinkable."[12] Judicial review is a boon for the society in so far as it protects the rights of the citizens and promotes well-being.

Additionally, judicial review keeps the legislature in check. The process of judicial review functions as a guardian of the Constitution and safeguards the fundamental rights enshrined under the Constitution also distributes power between the union and the states and clearly defines the functions of every organ functioning in the nation.

However, it should not be a regular phenomenon and should not result in judicial overreach as it would be counter-productive and destructive for other organs of the government and autonomous institutions of democracy. Transcending the line of power would nullify the concept of power sharing. Thus, judicial discipline and abstention from over-activism is necessary to maintain the equilibrium.

  1. India today, < What is judicial review: Importance, scope, and types - India Today >
  2. P. Sharan, Constitution of India and judicial review, the Indian journal of Political Science, vol. 39, No. 4, 526.
  3. 5 US 137
  4. (1878) ILR 3 Cal 64
  5. (1973) 4 SCC 225
  6. 1967 AIR 1643
  7. AIR 1997 SC 3011
  8. AIR 1950 SC 27
  9. 1994 AIR 1918
  10. Anurag Choudhary, Judicial activism and its overreach in India, Lex Repository,
  11. Vrindha Bhandari, Courts and contempt powers in India: The case of Jolly LLB 2, Oxford Human Rights Hub, Courts and contempt powers in India: The case of Jolly LLB-2 | OHRH ( >
  12. Unacademy, < Judicial Review in India and its categories (

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