Judicial Review

Polity

Judicial Review is the power of Courts to pronounce upon the constitutionality of legislative and executive acts of the government which fall within their normal jurisdiction. It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

Timeline

Shankari Prasad vs Union of India (1951)

In this case, the Zamindars challenged the constitutional validity of the first amendment Act 1951 on the ground that it violates fundamental rights and Article 13(2) of the Constitution of India and contended that Article 31 is unconstitutional. The court held that any amendment made under Article 368 is not a law under Article 13 of the constitution. So, the First Amendment Act is constitutionally valid.
NOTE: Fourth Amendment Act added Article 31(2A) which stated that unless the ownership of property acquired is transferred to state there would be no compensation and adequacy of compensation which is to be fixed by law is not non-justiciable. Further 17th Amendment came in 1964 which was given retrospective effect.

Sajjan Singh vs State of Rajasthan (1965)

In this case, the constitutional validity of the 17th Amendment Act of 1964 was challenged. Hon’ble court by the ratio of 3:2 rejected the contention and held that Article 368 gives the power to amend 13(2). The judgement made in Shankari Prasad was upheld in this case.

Golak Nath vs State of Punjab (1967)

Validity of the 17th Amendment Act of 1964 was challenged again and was referred to a larger bench of 11 Judges. Court by the ratio 6:5 overruled the earlier judgement made in Shankari Prasad and Sajjan Singh and held that the word Law in Article 13 includes constitutional amendment made under Article 368.
NOTE: After this landmark case 24th Amendment of 1971, came to neutralize the effect of Golaknath case. It gave us Article 13(4), which says that any amendment made under Article 368 is not a law under Article 13. It also changed the note of Article 368 to Power of parliament and procedure to amend the constitution.
Soon the 25th Amendment of 1971 came which changed the word “compensation” in Article 31(2) to “amount” to remove the obligation that the government is bound to give compensation.
It added Article 31C to the constitution which stated that Article 14,19,31 won’t apply to a law enacted to effectuate policy underlying Article 39(b) and (c).

Kesavananda Bharti vs State of Kerala case (1973)

24th and 25th Amendment Act of 1971 was challenged. A Judge Bench of 13 Judges was constituted. With the ration of 7:6 held that:
Power to amend the constitution is to be found in Article 368. Parliament can’t destroy or amend the basic structure of the constitution.
Supreme Court gave the list of the Basic structure:

Indira Nehru Gandhi vs Raj Narain (1975)

In this case, the 39th Amendment Clause 4 was challenged as it puts a bar to challenge the election of Speaker and Prime Minister. It was struck down in this case and the court declared it unconstitutional.
Judicial review is considered a basic structure of the constitution.

Minerva Mills vs Union of India (1980)

In this case, further Judicial Review was added to the list of Basic Structure of the constitution along with the balance between Fundamental Rights and Directive Principles.

I.R. Coelho vs State of Tamil Nadu (2008)

Court held that any act inserted in Schedule 9 can be judicially scrutinized but only those enactments which are inserted after 24th April 1973.

Constitutional Provisions

There is no direct and express provision in the constitution empowering the courts to invalidate laws, but the constitution has implicitly mentioned power of judicial review.

Importance

Issues

Grounds for Judicial Review

Constitutional Amendment

Judicial Review in this phase is done for all the constitutional amendments done by the authority. All those amendments which are in violation of Fundamental Rights are declared void and it is held to be unconstitutional.

Administrative Actions

The doctrine of Judicial Review is the basic feature of our Constitution in India. These tests were as follow:

If the courts presume full and arbitrary power of judicial review it will lead to the poor performance of work by all the organs of government.
When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could be rightly said that the judiciary then begins to invalidate the concept of separation of powers set out in the Constitution.
So to keep all the functions work properly each has to work in its provided sphere.
In India, we have the concept of judicial review embedded in the basic structure of the constitution. It helps the courts to keep a check and balance upon the other two organs of government so that they don’t misuse their power and work in accordance with the constitution.

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Subject: Polity

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