Judicial review originated in the United States but is now accepted as one
of the basic and essential feature of our Constitution and no law passed by
the parliament in exercise of its constitutional power can abrogate it or
take it away.
The power of judicial review over legislative action vested in the High
Courts and the Apex Court under Article 226 and 32 respectively, is an
integral part and essential feature of the Constitution. The power of the
constitutional courts viz. the High Courts and the Supreme Court of India to
judicially review the constitutional validity of legislation can never be
ousted or excluded.
The power extends to examining the validity of even a constitutional
amendment. It has been held that no constitutional amendment that violates
the basic structure of the constitution, sustains.
The practice of judicial review in India comprises of three aspects:
- Judicial Review of legislative action
- Judicial Review of administrative action
- Appellate review of judicial decisions
To ensure an effective implementation of the principle of judicial review,
it is necessary to keep in mind the history of our own constitution, our
geographical conditions, social structure, economic development, social and
religious composition, needs of the time, history of impugned legislation,
necessity of its enactment, as well as its impact on individual citizens.
Judicial review serves the following purposes:
- Upholding the Constitution
- Protecting individuals
- Interpretation of statutes
- Establishing general legal principles
- Structuring deliberative and administrative processes
- Nurturing core values of good governance
- Encouraging fruitful and effective Public Interest Litigations (PILs)
- Elaboration and vindication of fundamental rights
The above list is just an example of many things that come within the
purview of judicial review. A distinction must be made between judicial
review and justifiability of a particular action. Power of judicial review
is implicit in a written constitution, unless expressly excluded by a
provision therein. Justifiability relates to a particular field falling
within the purview of judicial review.
Constitutional interpretation as a dimension of the court practice
The interpretative role of the constitutional courts in India is closely
connected with the working of the Constitution. All interpretations are
mediated by respective social, political, economic, religio-cultural factors
in a country, while universal features of some rights transcend the barriers
of nation and territory.
Constitutional interpretation is also valued as an indispensable element
ensuring constitutional efficacy. Constitutional interpretation in India
happens at two levels viz., the High Court under Article 226 and the Supreme
Court under Article 32.
Some statements made by the honourable apex court in some matters before it,
are listed below as:
- That the court will creatively use precedents for delineation of new
dimensions of fundamental rights.
- That the court may explore these new dimensions even occasionally by
delving into fields of history, anthropology, science and psychology of
people and countries.
- That the courts may undertake such explorations of new dimensions,
in order that the machinery of law is not oppressive or should be open
to social, moral and more liberal views relating to gender.
- That the courts will not hesitate to strike down even legislations
of long history, if they are plainly and blatantly discriminatory.
- That the courts may fine tune constitutional provisions suggesting
mature political action, in order that the constitutional guarantee is
not perceived as excessively invoked or utilised by some sections of the
Judicial review is an important power vested in the honourable courts and
apart from some reasonable restrictions necessary to maintain the balance of
power, this right cannot be take away considering that it is the backbone of
a democratic and progressive society.
- Union of India v. Raghubir Singh (Dead) by LRs., AIR 1989 SC 1933
- A.K. Kaul v. Union of India, AIR 1995 SC 1403 (India).
- Indian Young Lawyer’s Association v. State of Kerala, 2018 SCC
Online SC 1690 (India).
- Navtej Singh Johar v. Union of India, WP (Crl.) No. 76/2016, order
- Supra Note 3.
- Joseph Shine v. Union of India, WP (Crl.) No. 194/2017, order dated
- Jurnail Singh v. Lachhmi Narain Gupta, WP (C) No. 30621/2011, order