Judicial Review is the power and discretion of Courts to decide upon the
constitutionality of legislative and executive actions of the government which
fall within their jurisdiction.
If any provision of any statute is found to be violative of any of the Articles
of the constitution which is the vital parameter for validating laws, the
Supreme Court and the High Courts have the power to strike down the said
If any harm caused by the actions of the legislative, executive, and judiciary,
to the constitutional values or rights guaranteed under the Indian constitution
then the role of the judicial review comes into play.
There are many changes that were brought to the doctrine of judicial review in
India through very important judgments by the apex court (the Supreme court of
India), Which has changed the scope as well as nature of the judicial review in
History and Background
The doctrine of Judicial review was initially brought by the Supreme court of
the United States of America. However, the constitution of the United States did
not contain a provision relating to judicial review but in the case of Marbury v
Madison, chief justice Marshall stated that the constitution and fundamental
rights are of paramount importance. It is the duty of the judiciary to protect
the essence of the constitution through the doctrine of judicial review.
In India, the power of judicial review was exercised by the courts prior to the
enforcement of the Indian constitution. During the colonial period, the British
parliament has introduced a federal system in India through the Government of
India Act, 1935. Under this Act, both the central and state legislatures were
given complete powers in their respected jurisdiction. the power of judicial
review was not specifically granted but the federal court was given the
discretion to interpret the constitution and to determine the constitutionality
of the legislative actions.
After the commencement of the India constitution, the Federal court was replaced
with the Supreme court of India. The constitution of India foresees a very
healthy system of judicial review and it is upon the discretions of judges to
act and take decisions in a way as to preserve the spirit of democracy.
Evolution of Judicial review after the commencement of the Indian
The courts have the power of judicial review in India but courts must exercise
this power with great caution and judicial assessment. The Indian constitution
provides an express provision for judicial review under Article 13, 32,131-136,
143, 226, 145, 246, 251, 254 and 372.
The constitution of India allows judicial review for all laws in India, prior to
commencement of the constitution, present, as well as future laws. These powers
are given to High courts and the Supreme court of India which can declare a law
unconstitutional if it is inconsistent with any Fundamental rights under part
III of the Indian constitution.
After the independence land reforms have become more important aspect in view of
DPSP's. The four main judicial pronouncements mainly deal with the fight between
Fundamental Rights and Directive principles of state policies. These judgments
not only discuss the fight between FR's & DPSP's but also brings the doctrine of
basic structure in the light of Judicial review.
At the time when the Indian constitution came into force, the right to property
(Article 31) was one of the fundamental rights. In 1950's most of the lands were
concentrated in the hands of Zamindars. DPSP's talks about land distribution, in
the view that there shouldn't be any inequality in the land resources. In the
view of the land distribution scheme to landless citizens, many states have
introduced this policy for recovery of lands from these zamindars under
In the case of Shankari prasad v. Union of India
, one of the zamindars
has filed a petition that Land-reforms are inconsistent with the right to
property (fundamental right) and 1st amendment act, in which land reforms are
kept under 9th schedule, provisions in the 9th schedule cannot be subjected to
judicial review. The petition was filed against the 1st amendment act under
Article 13. The supreme observed that the term ‘law' in Article 13 only talks
about ordinary law but not constituent law, so the 1st amendment was said to be
valid and no judicial review is required.
In 1965, the legislative has brought many laws into the 9th schedule through the
7th amendment act. In the case of Sajjan Singh v. the State of Rajasthan
Zamindar's of Rajasthan have approached the Supreme court against the 7th
amendment which is also violative of the right to property and Article 13. The
court struck down the case and held that the government has the power to change
the fundamental rights and it won't be subjected to judicial review.
In I.C. Golak Nath v. the State of Punjab
, the 1st, 4th & 17th
constitutional amendments were challenged whether these amendments are part of
Article 13(2). The supreme court stated that the Fundamental rights are
sacrosanct, which cannot be amended. The Court also said that there will be ‘prospective
overruling' which means, this judgment will only be applicable to the amendments
in the future but not to the one's which is already existing.
The 24th amendment was introduced in 1971, through this amendment the judgment
of I.C. Golak Nath case was nullified, and also it is said that the
constitutional amendments are part of constituent law.
25th amendment was introduced in 1971, this amendment says that if there is a
clash between DPSP's & FR's, if Article 39(b) & 39(c) supersedes Article 14, 19,
31 then it is acceptable. In this situation, the Supreme court will not have the
power of judicial review.
29th Amendment was introduced in 1972, through this amendment the land reform
laws in the State of Kerala was included into the Ninth Schedule to the
The government of Kerala has taken lands belonging to Hindu monk (Keshavananda
Swamy) under land-reforms Act. The petition was filed by the Keshavananda in the
supreme court against the 24th, 25th, & 29th amendment.
The judgment by the supreme court in the Keshavananda Bharati v. Union of
, 24th &25th constitutional amendments was struck down as
unconstitutional and the 29th amendment was upheld. There was a new concept
called the doctrine of Basic structure which was brought in this case, which
means parliament should use this doctrine of basic structure while making laws
or amendments and also judiciary has the power of judicial review on these laws
and amendments passed by the legislature.
In 1978, Right to property was removed by the 44th amendment and it was made a
legal right under Article 300A.
42nd amendment was brought by the legislature in 1976, through this there was a
nationalization process of industries throughout India and also through this
amendment, a clause was added to Article 368 of the constitution that any
constitutional amendment which is made under Article 368 will not be subjected
to judicial review.
By challenging the 42nd amendment, there was a case Minerva Mills v. Union of
, the Court held that the said amendment should be subjected to
judicial review, According to Keshavananda Bharati case
is the part of the doctrine of Basic Structure. The court said that the part
which added a clause to Article 368 will not be valid and it should be struck
In this case, the court also stated that there should be harmony between
Fundamental rights and Directive principles of state policies. Supreme court in Waman
Rao v. Union of India
, Held that amendments made to 9th schedule until
Keshavananda judgement were valid. However, amendments to 9th schedule made
after Keshavanada judgement were subjected to scrutiny.
The state of Tamil Nadu has added many provisions related to a reservation in
the 9th schedule which means, these provisions cannot be subjected to judicial
review. In the light of this, there was a recent case in the year 2007, I.R.
Coelheo v. State of Tamil Nadu
, this case is about whether the provisions
in the 9th schedule will be subjected to judicial review or not. The court held
that any amendments or laws which are passed by the legislature after the
Keshavananda Bharati case
will be subjected to judicial review. And also,
any amendments or laws which are passed by the legislature should not violate
the golden triangle (Article 14, 19, 21) along with the Basic structure.
Judicial review has taken its inevitable role in India after the I.R. Coelheo
. The Keshavananda Bharati case
is the most important judgment in
the history of the Indian judiciary which has brought enormous changes in the
process of constitutional amendments. Any amendments or laws which are passed by
the legislature after the Keshavananda Bharati case will be subjected to
judicial review. And also, that any amendments or laws which are passed by the
legislature should not violate the golden triangle (Article 14, 19, 21) along
with the doctrine of Basic Structure.
- Marbury v. Madison, 5 U.S. 137
- Shankari prasad v. Union of India, 1951 AIR 458
- Sajjan Singh v. the State of Rajasthan, 1965 AIR 845
- I.C. Golak Nath v. the State of Punjab, 1967 AIR 1643
- Keshavananda Bharati v. Union of India, AIR 1973 SC 1461
- Minerva Mills v. Union of India, 1980 AIR 1789
- Waman Rao v. Union of India, AIR 1981 SC 271
- I.R. Coelheo v. State of Tamil Nadu, AIR 2007 SC 861