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Judicial Review in India: Safeguarding Rights and Balancing Powers

Judicial review in India

Judicial review is a fundamental aspect in any of the present democratic societies, including India. It serves as a crucial mechanism for checking the constitutionality of government actions and safeguarding the rights of citizens. Although the power of judicial review in India is extensive and has been a cornerstone of the legal system, it has its imitations.

Judicial review is the process by which the judiciary, or more particularly, the higher courts, assess the constitutionality of government actions, such as legislation, executive orders, and administrative decisions. In India, the power of judicial review primarily is vested mainly in High Courts and the Supreme Court.

The main concept of judicial review in India can be traced to its adoption of the American legal system. The Supreme Court of India, established under the Constitution of India in 1950, was empowered to exercise this significant authority. This power is embodied in Articles 13, 32, and 226 of the Indian Constitution, which grants the judiciary the ability to strike down the laws and government actions that are deemed unconstitutional.

Why the judicial review is important?

Judicial review is significant for the reasons mentioned as under:
  • It prevents the abuse of power by the executives.
  • It safeguards the fundamental rights of the citizens.
  • It is important for shielding the independence of the judiciary.
  • It is a necessity for maintaining the supremacy of the Constitution.
  • It also helps to keep a check on the misuse of power by the legislature and the executive.
  • It maintains an equilibrium between the centre and the state, thus keeping a federal balance.

Process of Judicial Review

Initiated by a petition from an aggrieved party, the judicial review process in India entails initial scrutiny, thorough hearings, and a concluding judgment. This meticulous process underscores the judiciary's dedication to protecting constitutional governance and the rights of citizens. The steps involved in the judicial review process in India include:
  • Initiation: The process of the judicial review begins when a person or a group of persons aggrieved by a law or executive action file a petition before a court of law.
  • Preliminary Scrutiny: The court at first examines the petition to determine whether if it is admissible. At this stage the court may reject the petition at this stage if it finds that the petitioner does not have the necessary standing to challenge the law or executive action in question.
  • Hearings: If the court finds out that the petition is admissible, it will conduct the hearings to examine the merits of the case. During the hearings, the petitioner puts forth arguments to bolster their case, while the government or the agency responsible for the law or executive action presents a defense.
  • Judgment: After hearing the arguments, the court will deliver its judgment. If the court finds that the law or executive action is constitutional and within the powers granted by the Constitution, the judiciary will uphold it.
  • Implementation: Once the court has delivered its judgment, the government or the agency responsible for the law or executive action is required to comply with it. If the court invalidates a law or executive action, the government may be compelled to amend or repeal the law, or to take other measures to ensure compliance with the court's judgment.
Categories of Judicial Review
The Indian Judiciary can exercise its judicial review authority in the following areas:

Reviewing Legislative Actions:

The judicial review in India has the power to assess whether the laws or decisions passed by the Legislature are in accordance with constitutional provisions or not.

Reviewing Administrative Actions:
The judicial review in India has the power to examine whether the laws or decisions passed by the Legislature comply with the constitutional provisions.

Reviewing Judicial Actions: Under the provision of judicial review the authority can make amends or improve any inconsistencies in previous judgements by the courts. This ensures minimum chances of such conflicts arising in the future.

Reviewing Constitutional Amendments:
Judicial review holds the power to declare any unconstitutional amendment as null and void.

Constitutional provisions in India
The Indian Parliament has adopted a system of judicial review from the Constitution of US and the powers of Parliament are not supreme. But the power is divided into Centre and states. The Supreme Court also has power of reviewing the enactment of both state legislatures and Parliament. This makes court more powerful and grants the instrument of judicial review. Some provisions of the system of judicial review have been granted by a Constitution in various articles. These articles include article 13, 32, 131 to 136, 143, 226, 145, 246, 254, 251 and 372.

Article 13
states that it provides the right to constitutional remedies that means a person has a right to move to the Supreme Court for getting his or her fundamental rights protected by the court that have been given to him by the Constitution.

Article 32
This article provides the right to constitutional remedies. That means that a person has a right to move to the Supreme Court in order to get his fundamental rights protected.

Article 226
It empowers the High Court to issue directions rates, orders in the natures of heaviest, corpus mandamus, certiorari and quo warranto. Such directions rates or orders may be issued for the enforcement of fundamental rights for any other purposes.

Article 143
It confirms the power upon the Supreme Court advisory jurisdiction. The President may seek the opinion of Supreme Court on the question of law or fact of public importance on which the person thinks it expedient to obtain such opinion.

Article 372(1)
the article says that all the law in force in the territory of India before the commencement of Constitution immediately shall be forced therein until altered , amended or repealed by a competent legislature or an authority.

Article 131-136
This article entrusts the courts with the power to adjudicate disputes between state between state and union between individuals, but the court may be required to interpret the provisions of the Constitution and such interpretation given by Supreme Court becomes law honoured by quotes of the land

Article 246(3)
This article states that the power of both Parliament and state legislature or subject to the provisions of Constitution of India.

Article 251 and 254
It states that in case of inconsistency between the union and state laws, the state laws shall be void.

Also, there is one thing to be kept in mind that there is no express provision in Indian constitution which empowers the court to invalidate laws. They are only entrusted with the task of deciding whether the law which is to be implemented is not unconstitutional then that particular part of the whole provision would be repealed from Indian constitution. When a law is found to be unconstitutional, it seizes to operate from the date of judgement given by the court. All the privy decisions which were taken before the date of declaration shall continue to remain valid.

Cases of judicial review in India

Judicial review can be conducted in both state and Centre existing laws and the ordinances of both the constitutional and executive amendment. Judicial review cannot be conducted in laws present in the ninth schedule of Indian Constitution. The interpretation of Supreme Court is honoured by every court of the land there is there is no appeal that lies against the judgement of Supreme Court

In Shankarin Prasad v. Union of India the first amendment act of 1951 being challenged before the Supreme Court on the ground that right to property was being abridged by the act and was argued that it could not be done as the fundamental rights under article 13(2).

Supreme court rejected the contention and said that terms of article 368 are perfectly general and King power in the Parliament to amend the Constitution without any exception.

The landmark case of Golaknath versus State of Punjab, three constitutional amendments were challenged where which 1st , 4th and 17th. The Supreme Court revised its decision and the Parliament under article 368 has no power to amend or to take away or abridge the fundamental rights guaranteed under our Constitution. The Supreme Court observed that:
  • Article 368 only provides a procedure to be followed regarding amendments of the Constitution.
  • Article 368 does not actually contain the power to amend the Constitution. The powers to amend the Constitution are derived from Article 245, 246, 248, and entry 97 of the Union List.
In Minerva mills case the supreme court by a majority of decisions struck down section 4

42nd amendment act which gave power to the directive principles over article 24, 19, 31 of our Constitution. As it would destroy the harmony of Indian constitution and stated that part III and IV of our Constitution were equally important and absolute primacy of one over the other is not permissible.

Thus, interpreting the various provisions of the Constitution and helps in proper implication of laws in the country.

Limitations of Judicial Review
The judiciary's power of judicial review comes with several limitations. When the judiciary exceeds its boundaries and interferes with the executive's responsibilities, it is termed judicial activism, which can escalate into judicial overreach. Some of the key limitations of judicial review include:
  1. Government Functioning Restriction: Judicial review can restrict government operations, as it primarily checks whether the correct procedures were followed in decision-making, not the decisions themselves.
  2. Precedent Setting: Judicial decisions establish precedents, which become standards for future rulings.
  3. Higher Court Domain: Judicial review is reserved for higher courts, such as the Supreme Court and High Courts.
  4. Non-interference in Political Matters: The judiciary generally avoids involvement in political questions and policy issues unless absolutely necessary.
  5. Constitutional Limits: Judicial review can breach constitutional limits when it overrides existing laws.
Interpreting various constitutional provisions ensures the proper application of laws in India. Judicial review, a fundamental aspect of the Indian Constitution, is one of its most potent tools. This doctrine is well-embedded in India, with clear constitutional backing. The Indian Constitution underscores the judiciary's role in overseeing the legislative and executive branches at both central and state levels. Judicial review acts as a protector of the Constitution, safeguarding individual fundamental rights, maintaining the balance of power between the union and the states, and delineating the authority of each government branch. This mechanism legitimises government actions and defends the Constitution against any improper encroachment by the government.


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