Judicial review is a vital component of modern constitutional governance. It refers to the power of the judiciary to examine the constitutionality of legislative enactments and executive orders. If any such action is found to be in conflict with the Constitution, it can be declared null and void by the courts. In the Indian context, judicial review acts as the watchdog of the Constitution and the protector of fundamental rights. Although the phrase “judicial review” is not explicitly mentioned in the Indian Constitution, its essence is firmly rooted in several constitutional provisions and judicial interpretations. Judicial review plays a key role in maintaining the balance of power among the three organs of government: the legislature, the executive, and the judiciary. It ensures that the rule of law prevails, and arbitrary use of power is prevented.
This article seeks to examine the origin and evolution of judicial review in India, its constitutional foundation, scope, key judicial pronouncements, and the contemporary challenges it faces in the rapidly changing legal and political environment.
Constitutional Provisions Empowering Judicial Review
Even though the term “judicial review” is not explicitly mentioned in the Indian Constitution, multiple provisions implicitly confer this power on the higher judiciary:
1. Article 13
This article forms the cornerstone of judicial review in India. It states that any law that contravenes the fundamental rights guaranteed under Part III of the Constitution shall be void to the extent of such contravention. This enables courts to review the constitutionality of both pre-constitutional and post-constitutional laws.
2. Article 32 and Article 226
Article 32 provides the right to constitutional remedies and empowers individuals to approach the Supreme Court directly for the enforcement of fundamental rights.
Article 226 empowers High Courts to issue writs not only for the enforcement of fundamental rights but also for any other legal right.
These two articles give teeth to judicial review by ensuring that the judiciary can check any violation of fundamental rights.
3. Articles 131 to 136
These articles collectively deal with the original, appellate, and discretionary jurisdictions of the Supreme Court, allowing it to adjudicate matters of constitutional importance.
4. Article 143
This article allows the President of India to seek the advisory opinion of the Supreme Court on questions of law or fact of public importance, reflecting the Court’s interpretative supremacy.
5. Article 368
This article lays down the procedure for amending the Constitution. However, through judicial pronouncements, it has been held that even constitutional amendments are subject to judicial review if they alter the “basic structure” of the Constitution.
Evolution of Judicial Review in India
The concept of judicial review in India has evolved through several landmark judgments. Initially, the judiciary accepted the supremacy of Parliament, but gradually it asserted its role as the guardian of the Constitution.
1. Shankari Prasad v. Union of India (1951)
In this case, the Supreme Court upheld the power of Parliament to amend any part of the Constitution, including Fundamental Rights. The Court ruled that constitutional amendments were not “law” under Article 13.
2. Golaknath v. State of Punjab (1967)
This was a turning point. The Court overruled its earlier decision and held that Parliament could not amend Fundamental Rights. It considered constitutional amendments as “law” within the meaning of Article 13.
3. Kesavananda Bharati v. State of Kerala (1973)
This landmark judgment introduced the Basic Structure Doctrine. The Supreme Court ruled that while Parliament has wide powers to amend the Constitution, it cannot alter its basic structure. Judicial review was declared to be a part of this basic structure and hence, could not be taken away.
4. Indira Nehru Gandhi v. Raj Narain (1975)
The Court applied the basic structure doctrine to invalidate provisions that barred judicial review of elections.
5. Minerva Mills v. Union of India (1980)
This case further cemented judicial review as part of the basic structure. The Court struck down amendments that gave unlimited amending power to Parliament, reaffirming that judicial review is essential to preserve the Constitution.
6. L. Chandra Kumar v. Union of India (1997)
The Court ruled that the power of judicial review is an integral part of the Constitution’s basic structure and cannot be ousted by any tribunal or other authority.
Scope of Judicial Review
Judicial review in India encompasses three major dimensions:
1. Review of Legislative Actions
The courts can strike down laws enacted by the legislature if they are found to be unconstitutional. For example, laws that infringe upon fundamental rights or exceed legislative competence can be invalidated.
2. Review of Administrative Actions
The judiciary also examines the legality of executive and administrative decisions. If these actions are arbitrary, irrational, or violate natural justice, the courts can quash them.
3. Review of Constitutional Amendments
Though constitutional amendments are a legislative function, they are subject to judicial review if they violate the basic structure doctrine. This ensures that core constitutional principles such as democracy, federalism, secularism, and the rule of law remain intact.
The scope has been broadened through doctrines like:
- Doctrine of Proportionality
- Doctrine of Legitimate Expectation
- Doctrine of Arbitrariness
Contemporary Challenges
While judicial review is a powerful mechanism to safeguard the Constitution, it is not without its criticisms and challenges in present times.
1. Judicial Overreach
There have been instances where the judiciary is perceived to have encroached into the domains of the legislature and executive. Some PILs lead to directions on policy issues that are best left to elected representatives, raising concerns about separation of powers.
2. Backlog of Cases
Indian courts face a massive backlog of cases. This delays the resolution of constitutional and human rights matters, undermining the effectiveness of judicial review.
3. Ambiguity in Basic Structure Doctrine
While the basic structure doctrine protects core constitutional values, its undefined nature allows subjective interpretation, which can sometimes lead to unpredictability in judgments.
4. Politicization and Pressure
Increased media scrutiny, political commentary, and public pressure can influence or challenge the perception of judicial impartiality.
5. Misuse of PILs
Public Interest Litigation, though noble in intention, has sometimes been misused for personal or political gains. Frivolous PILs burden the judiciary and distract from genuine matters of constitutional importance.
6. Infrastructure and Manpower Issues
A shortage of judges, lack of proper case management systems, and outdated infrastructure significantly hamper the judiciary’s efficiency.
The Way Forward
To strengthen judicial review and ensure it serves its constitutional purpose effectively, the following steps can be considered:
- Judicial Restraint: Courts must exercise restraint and avoid interfering in areas where the legislature and executive are better equipped.
- Strengthening PIL Guidelines: Stricter scrutiny of PILs can prevent misuse while ensuring that genuine public concerns are addressed.
- Faster Appointments and Increased Judges: Timely appointment of judges and increasing the sanctioned strength can reduce pendency.
- Infrastructure Modernization: Digitalization and improved infrastructure can enhance efficiency and access to justice.
- Judicial Accountability and Transparency: Regular publication of judgments, judicial conduct codes, and open court hearings can foster public trust.
- Codifying Basic Structure Elements: An academic or institutional effort to list basic structure elements may bring more consistency in judicial review.
Conclusion
Judicial review is one of the most significant features of the Indian constitutional framework. It ensures the supremacy of the Constitution and protects the rights of citizens from arbitrary actions by the legislature or executive. The doctrine has evolved significantly, adapting to changing societal needs and political realities. From upholding fundamental rights to striking down unconstitutional amendments, judicial review has played a pivotal role in shaping Indian democracy.
Contributed by: Vanshika Dhiman (Intern)