In order that the legislature or executive cannot abuse its powers, the judiciary has a special power, which is called the power of judicial review.
In this article, we will discuss the judicial review in India in a simple and easy way, and understand its various important aspects, So to understand this article well, definitely read till the end, you will get to know a lot.
Why is judicial review needed?
We know that our country is a parliamentary democracy and three major institutions were established as the basis of this democracy – legislature , executive and judiciary. Now the special thing about democracy is that freedom is available here but with some necessary restrictions. That is, everyone has a limit within which everyone has to work. But if these institutions, which are called the pillars of democracy, violate this limit, then what will be done?
So overall, the supremacy of the constitution should be maintained, the federal balance should be maintained, the basic rights of the citizens should be protected or overall, democracy should be saved; For this, it was necessary that such a system should be brought which would either eliminate this type of problem or make it minimal. For this the system of checks and balances was adopted. That is, all the three institutions were designed in such a way that all three remain independent of each other and depend on each other.
That is, if one organization is violating its limits, then the other should stop it. In this sequence, if the Parliament violates its limits, that is, makes such rules and regulations, etc., which violate the constitutional limit, then the Supreme Court can stop that rule and law. The method used by the Supreme Court for this is called judicial review .
Meaning of Judicial Review
Judicial review is the power of the judiciary to examine the constitutionality of legislative acts and executive orders that apply to the central and state governments. After review, if it is found that they violate the constitution, then they can be declared illegal, unconstitutional and invalid and the government cannot implement them. Generally, jurists classify judicial review into three categories:
1. Judicial review of constitutional amendments.
2. Review of laws and subordinate laws passed by Parliament and a legislature
3. Judicial review of administrative proceedings by the authorities under the Union and State and State.
The Supreme Court has so far exercised the power of judicial review in various cases, for example, Golaknath case 1967 , Bank Nationalization case 1970 , Kesavananda Bharati case 1973 , Minerva Mills case 1980 etc. [Know it in details]
Even in the year 2015, the Supreme Court declared both the 99th Constitutional Amendment 2014 and the National Judicial Appointments Commission Act 2014 as unconstitutional.
But remember one thing here that the word judicial review is not directly used in the constitution, but still the Supreme Court has the power of review. Why so? Because it has been indirectly discussed in many articles of the constitution. What are those articles, let’s take a look at them.
Constitutional provision for judicial review
1. According to Article 13, laws inconsistent with or in derogation of the Fundamental Rights shall be void. That is, any law which was made before independence or after independence, if that law or any provision thereof violates the fundamental rights, then the Supreme Court can review that law and void that law or provision in that amount. The amount may be infringing on the Fundamental Rights. There are two more articles to support this article (1) Article 32 and (2) Article 226.
(1) Article 32 allows citizens to directly approach the Supreme Court in case of violation of fundamental rights and at the same time empowers the Supreme Court to issue orders or writs for the same .
(2) A similar arrangement is available to the High Court from Article 226. The only difference is that the High Court can issue writs for matters other than Fundamental Rights.
2. Article 131 determines the original jurisdiction of the Supreme Court for central-state and inter-state disputes. Article 132 ensures the appellate jurisdiction of the Supreme Court in constitutional matters. Article 133 ensures the appellate jurisdiction of the Supreme Court in civil matters. Article 134 ensures the appellate jurisdiction of the Supreme Court in criminal matters. Article 134(a) deals with certificates for appeal from High Courts to the Supreme Court.
▪️ Article 135 empowers the Supreme Court to exercise the jurisdiction and power of a Federal Court under any pre-constitutional law. In other words, the Supreme Court can also hear cases that do not come under Article 133 and Article 134 but before the Constitution came into force, those jurisdictions were with the Federal Court. However, the thing to remember here is that the Parliament can abolish it if it wants.
▪️ Under Article 136 , the Supreme Court may, in its discretion, make special orders to appeal against any judgment, sentence or order passed or made in any suit or matter by any court or tribunal within the territory of India. (except military courts)
Article 143 authorizes the President to seek the opinion of the Supreme Court on the facts of any question of law or on any pre-constitutional legal matter.
[To understand all the above articles in detail, must read the article on the Jurisdiction of Supreme Court]
3. Article 227 empowers the High Courts to superintend all courts and tribunals within their respective territorial jurisdiction.
6. Article 245 deals with fixing the territorial limits of laws made by Parliament and state legislatures. In other words, subject to the provisions of the Constitution, Parliament can make laws for the whole or any part of the territory of India, while the Legislature of any State can make laws for the whole or any part of that State.
7. Article 246 deals with the subject matter of laws made by Parliament and state legislatures which are divided into 3 lists (Union List, State List and Concurrent List) under the 7th Schedule.
8. Articles 251 and 254 provide that in case of conflict between the central law and the state laws, the central law shall prevail over the state law and the state law shall stand repealed.
9. Article 372 of the Constitution deals with the continuation of the earlier laws. That is, the existing law will remain in force until it is changed, repealed or amended.
All this is a law that proves that the Supreme Court has the power of judicial review. But to what extent? So let’s understand it now.
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Judicial Review of higher courts in india
The constitutional validity of any legislative act or executive order in India can be challenged in the Supreme Court or the High Court; If it
1. It violates fundamental rights, or
2. It is beyond the competence of the authority which created it, or
3. Due constitutional procedure has not been followed for making it , or
4. It Violates the basic structure of the Constitution.
To put it in other words, the power of judicial review in India is based on the procedure established by law. What happens in this process is that the Supreme Court can only see whether the law is made according to the norms set by the constitution or not. Whether the substance underlying a particular law is good or bad is immaterial to the court.
While the US Constitution provides for due process of law in the matter of judicial review. In this system, the Supreme Court not only reviews the procedures but also reviews the substance underlying those laws.
After independence, judicial review in India more or less followed the procedure established by law, which included some elements of due process of law, but things changed completely after the Kesavananda Bharati case of 1973. For how it has changed, you have to understand the Kesavananda Bharti case .
But let me tell here that after that a new system was started which is – the principle of basic structure of constitution. Under this, the Supreme Court got immense powers of judicial review.
Now the Supreme Court works just like due process of law. In many cases, it appears as if the Supreme Court of India has more review powers than the US courts.
Now a question remains here whether the Supreme Court can do a judicial review of the Ninth Schedule? This is an interesting matter, we will understand it in a separate article – Can there be judicial review of the Ninth Schedule?