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Historical and Contemporary Developments of the Doctrine of Judicial Review

Judicial review in its most basic of sense refers to the reviewing of acts issued by the legislature, or the executive, scrutinizing their consistency with the high laws, primarily the Magna Carta of the nation- The Constitution. It even involves the reviewing of any judgment of the Judiciary by pronounced by itself. 

It is a fundamental tenet of judicial power of a nation, with its inception from the United States of America, it gained prominence worldwide due to the beautifully tailored procedure it follows in pursuance of the application of its powers. A crucial cornerstone of judicial review is that, where applicable, the provisions of the Constitution must control judicial decision-making.

The 4th Chief Justice of the Young Nation[1] (referred to the U.S.A), John Marshall first addressed the question whether the Congress, as the federal legislature, has the power to enact a law contrary to the provisions of the Constitution. In [2]Marbury v. Madison, Marshall wrote as if the answer were self-evident; the Chief Justice asserted as a "proposition too plain to be contested" that the Constitution is paramount and a legislative act contrary to its mandates is not law. Some still do not agree with the early Chief Justice's answer.

They would say that the acts of legislative bodies or of the executive are themselves the law of the land. If these acts conflict with the Constitution, then the people-and the courts-must abide by the later wisdom. Additionally, under the purview of safeguards of the canons of the constitution, judicial review protects the fundamental rights through the issuing of writs[3], evidently so, it is an implied responsibility of the government to respect rights and does not necessarily entail legal responsibility for the disregard of a right even if it seems to be a logical necessity. Constitutional pragmatism does always follow logic, especially where tradition supports immunity.

This paper shall provide an equitable glimpse into the interconnection of the Constitution, the Fundamental Rights and the Judicial Review.

The concept of the doctrine of judicial review gained its roots from the judgment of the Marbury v. Madison case in the Supreme Court of the U.S.A, where it created its authority to declare federal statutes unconstitutional. Chief Justice Marshall opined that whether an act repugnant to the constitution can become the law of the land, as a question which deeply intrigued the states, answering the question in the affirmative, he first recognized certain fundamental principles:
The people had come together to establish a government, they provided for its organization, assigned powers to its various departments, and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose if these limits may, at any time, be passed by those intended to be restrained. Claiming the reasoning as the Constitution is a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law.

Another crucially scrutinized question was "If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? The answer, was that, it is emphatically the province and duty of the judicial department to say what the law is. Those tasked with applying a rule to specific instances inherently must clarify and interpret that rule.

When two laws contradict each other, the judiciary is obligated to adjudicate the application of each. In situations where both a statute and the Constitution are pertinent to a particular case but clash, the court must ascertain which rule prevails. This responsibility lies at the core of judicial duty. Given the Constitution's supremacy over any ordinary legislative enactment, it must prevail over such an enactment when both are relevant to a case.

The Constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. To declare otherwise, Chief Justice Marshall[4] said, would be to permit the legislature to pass[ ] at pleasure the limits imposed on its powers by the Constitution.[5]

After a philosophical examining of the justification for judicial review given by Chief Justice Marshall, it becomes evident that the clause of supremacy mentioned in the U.S Constitution[6]  clarifies that the Constitution has precedence over laws and treaties, setting that only laws which are made in pursuance of the constitution shall be the supreme law of land.

The Madison V. Marbury case signified the federal courts scrutiny of a federal statute. Since this pivotal ruling, the Supreme Court of the U.S has wielded its authority of judicial review to assess the constitutionality of state laws as well as federal and state executive actions, with the doctrine being embraced by law in the article 3, section 1 of the U.S Constitution.
The courts have since time immemorial acted as sentinel on the qui vive[7] so far as the constitution is concerned.

Underlining this aspect of the matter, the Supreme Court (hereafter S.C.) stated in State of Madras v. Row[8] that the constitution contains special provisions for judicial review of legislation as to its conformity with the constitution.

The S.C. in the case of A.K. Gopalan[9] emphasized, "In India the Constitution that is supreme" and that a "statute law to be valid, must in all cases be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not" and if the legislature transgresses any constitutional limits, the courts have to declare the law unconstitutional "for the court is bound by its oath to uphold the constitution"

The doctrine of supremacy of the constitution and judicial review has been expounded lucidly but very forcefully by Justice Bhagwati J. in Rajasthan v. UOI:
It is necessary to assert in the clearest terms particularly in the context of recent history, that the constitution is supreme lex, every department of law, be it the executive or legislature derives its authority from the constitution��[10]

Therefore, the courts in India cannot be of usurping the function of constitutional adjudication; it is a function imposed on them by the constitution itself.

Justifying judicial review, Ramaswami J observed in SSS Bola v B.D. Sharma[11] that the founding fathers incorporated in the constitution itself the provisions of judicial review so as to maintain the balance of federalism�.[12] availment and enjoyment of equality, liberty and fundamental freedoms�Judicial review is a part of constitutional interpretation itself. It adjusts the constitution to meet new conditions and needs of time.

In Keshvananda Bharti v. UOI, Justice Khanna emphasized, "[13]As long as fundamental rights exist and are a part of the constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these rights are not contravened�. judicial review is an integral part of our constitution.

In the Minerva Mills case CJI[14], Chandrachud observed that the judges have a duty to pronounce the validity of laws and if this power is denied then the fundamental rights conferred on people will mere be adornments.

Ahmadi CJ speaking on behalf of a bench of seven judges in L Chandra Kumar v UOI[15], observed that judges of S.C.  have been entrusted with the task of upholding the constitution to this end, have been conferred the power to interpret it.

Thus, the jurisdiction conferred on the S.C. under article 32 and on the High Courts under article 226/227 has been held to be a part of the inviolable basic structure of the constitution which cannot be ousted by any constitutional amendment.

Article 13 of the constitution of India, further goes on to mention "The state shall not make any law which takes away or abridges the rights conferred by this part [ PART 3] and any law made in contravention of this clause, to the extent of contravention, be void.

The Status Quo Of Judicial Review
The guardian of the constitution, interpreter, applier of laws and the defender of the rights of people, the Judiciary, is of late subjected to a perception of being perceived as the most convenient mechanism of arbitration, accommodation and conflict resolution. A written constitution analogous to that of India does provide a necessary condition but not a sufficient safeguard against the temptations of violating the canons of the federal system.

This gives necessary rise to the creation of an institution to act as an independent arbiter in the situation of imbalances in the authority of various constitutional or statutory bodies. Only an independent judiciary which is insulated from political control or external factors can match up with the aforementioned criteria, with judicial review being its core.

The scope of judicial review in India is somewhat circumscribed as compared to that in the USA. The Fundamental rights are less broadly worded in the Indian Constitution as compared to the USA, and limitations thereon have been stated in the Constitution itself and this task has not been left to the courts. The constitution-makers adopted this strategy as they felt that the courts might find it difficult to work out the limitations on the Fundamental Rights and the same better be laid down in the Constitution itself. The constitution-makers also felt that the judiciary should not be raised to the level of the super-legislature.

Whatsoever be the justification for the methodology adopted by the constitution-makers, the inevitable result of this has been to restrict the range of judicial review in India. The Indian Constitution does not afford the same scope of judicial creativity to the courts as does the U.S Constitution. Further, over the years, the scope of some of the Fundamental Rights has been curtailed by constitutional amendments, thus, the scope of judicial review has been further restricted.'

This process can be seen very clearly in the context of the right to property. In spite of all this, the Supreme Court does play a significant role in the Indian constitutional process. Since the commencement of the Constitution, the Supreme Court has rendered hundreds of decisions expounding various provisions of the Constitution, and, thus, a distinct constitutional jurisprudence has come into existence. In many cases, the Supreme Court has displayed judicial creativity of a very high order, example, in [16]Keshvananda case and in expanding scope of article 21.

As of recent times, the law minister in the central government once stated that the courts through the exercise of power of judicial review retarded the process of socio-economic development of the country, justifying the restrictions on powers of courts to declare a law unconstitutional.[17]

In spite of these barriers, the institution of judicial review has a vibrancy of its own, being declared as the basic feature of the constitution.

Even recently, in 2020 in [18]Kantaru Rajeevaru v. Indian Young Lawyers Association, the later held that devotees of Lord Ayyappa did not constitute separate religious denomination and therefore could not claim benefit of Article 26 of Constitution of India - This Court also concluded that exclusion of women between ages of ten to fifty years from entry into temple was violative of Article 25 of Constitution of India - Several review petitions were filed in which bench was of opinion that scope of freedom of religion guaranteed under Articles 25 and 26 of Constitution needs authoritative pronouncement by larger bench of not less than seven Judges - Therefore, reference was made to this larger bench - Preliminary objection raised by parties regarding reference of questions of law to larger bench in review petition - Whether this Court could refer questions of law to larger bench in review petition.

Moreover, in the recent case of 2023, Babulal Marandi Vs. The Tribunal of the Speaker under Schedule-X of the Constitution, Jharkhand Vidhan Sabha and [19]Ors. Justice Rajesh Shankar stated "I am of the considered view that if the power of judicial review is exercised at this stage, the same will amount to interfering with the power of the Speaker conferred by Para 6 of the Tenth Schedule of the Constitution." Since in W.P.(C) No. 3687 of 2020, the vires of sub-rule (1) of rule 6 of the Rules, 2006 was under challenge which required detailed hearing, learned Division Bench had granted interim protection to the petitioner having seen the prima facie case, balance of convenience and irreparable losses and injuries to him.
Judicial Review, Constitution and Fundamental rights can be claimed to be similar to one whorled phyllotaxy, which refers to the growing of two or more leaves at each node, because they flourish as the soul of the judiciary.

For any successful nation to exist independence of judiciary is expedient to keep in check the functioning of the executive and legislature.

The duty of judicial review remains always, as a national imperative to the judge.

 As Professor Herbert Wechsler has said: "Judicial review is not that of policy or advising legislatures or executives, nor even, as the uninstructed think, of standing as an ever-open forum for the ventilation of all grievances that draw on the Constitution for support. It is the duty to decide the litigated case and to decide it in accordance with the law, with all that implies as to a rigorous insistence on the satisfaction of procedural and jurisdictional requirements."

If judges were paralyzed by the enormity of this task, our constitutional system would break down. The duty must be performed and the results of the process measured ultimately by what each person, making his own assessment of the nation's needs, would call "good judgment."

A good decision is a decision that ought to command respect whether or not it is conclusively correct, ordinarily manifests certain recognizable characteristics. The first might be described as a seriousness of purpose.

Judicial Review is a critical part of the constitution which effectively ensures the protection of the fundamental rights of the citizens, in its absence or with an excessive interference with the powers of the judiciary to carry out this review, the essence of the democratic system of India will be put to question. It is crucial that judicial review is particularly insulated from the politics of the nation, primarily because the hegemony of the legislature will eventually give rise to the creation of a non-pragmatic paradigm leading to a subsequent decline of the nation's prosperity.

  1. Supreme., (last visited February 9th, 2024).
  2. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
  3. INDIA CONST. art. 32, cl.2 & art. 226, cl.1.
  4. Herbert Brownell Jr., John Marshall the Chief Justice, 41 Cornell L. Rev. 93 (1955)
  5. Supreme., Historical Background on Judicial Review | Constitution Annotated | | Library of Congress (last visited February 11th, 2024).
  6. U.S Const, art.6
  7. Alert/ lookout
  8. State of Madras and Ors. vs. V.G. Row, MANU/SC/0013/1952.
  9. Gopalan, AIR 1950 SC27.
  10. Rajasthan v UOI, AIR 1977, SC 1361.
  11. SS Bola V BD Sharma, AIR 1997.
  12. M.P. Jain, Indian Constitutional law, 1674, (8th edition. 2022).
  13. M.P. Jain, Indian Constitutional law, 1675, (8th edition. 2022).
  14. Minerva Mills V. UOI 1980, SC 1789
  15. L Chandra Kumar V UOI, AIR 1997
  16. kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
  17. Awsika Das, Kiren Rijiju : Law Minister Who Crossed The Line Too Far With Rhetoric Against Judiciary, Live, (Feb.11, 2024, 19:16 PM)
  18. Kantaru Rajeevaru* vs. Indian Young Lawyers Association and Ors, MANU/SC/0443/2020.
  19. Babulal Marandi vs. The Tribunal of the Speaker under Schedule-X of the Constitution, Jharkhand Vidhan Sabha and Ors, MANU/JH/0041/2023.

Award Winning Article Is Written By: Mr.S.M.Ayaan Rizvi
Awarded certificate of Excellence
Authentication No: MR409018244991-30-0324

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