The judiciary is the third organ of the government and it has the function of interpreting the laws and to declare any law as unconstitutional.  Judicial Review is a power given to the Supreme Court or high court to check that if any law is inconsistent with the provisions of the Constitution, then such law would be declared as unconstitutional and inapplicable. By this power, courts can examine the actions of the other two organs of the government that is executive and legislative actions. Judicial Review is considered as part of the Basic Structure Doctrine of the Constitution. Judicial review can also be said as a constitutional review and it will have an impact on the constitutional interpretation. This research paper attempts to give a proper analysis of how judicial review will have what type of impact on the Constitution and constitutional interpretation. This paper attempts to give a holistic view of judicial review to its readers.

KEYWORDS:

Judiciary, judicial review, constitutional interpretation, justice, separation of powers.

INTRODUCTION:

The judicial review power court is very important for the court because it can keep a check on legislative, executive, or administrative actions and if any law passed by them violates the constitution then courts have full power to declare such laws as null and void. By doing this it acts as a Guardian of the Constitution as any law cannot surpass the Constitution. As per article 13 (2), of the constitution, the union or state shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the constitution than it shall to the extent of its contravention, be void. With the power of judicial review fundamental rights of the citizens which are guaranteed to them in the Constitution will be protected.  If any citizen believes that his fundamental rights are violated then as per Article 32 of the constitution they can directly approach the Supreme Court for the violation of these rights. There are three different organs of the government in India the Legislature, Executive, and Judiciary. The legislature is responsible for the law-making function, the executive is responsible for implementing those laws which are made by the legislature and the judiciary is responsible for checking these laws are not void or in contravention to the Indian constitution as a constitution is the rule of law. To make sure that these three organs do not interfere with each other’s work and don’t cross their limits there was a feature of separation of power mentioned under article 50 of the constitution. In the rule of law, to make sure that a law is not arbitrary and void there is a check and balance system between these three organs of the government and also the power of judiciary review entrusted with the judiciary to declare any law as void if it is in contravention to the constitution. The concept of separation of power is not followed in a strict sense in India whereas in the U.S.A.. it is followed in a strict sense.  The judicial review concept has also been taken from the American Constitution. The doctrine of judicial review entrusts with judiciary to examine the executive and administrative actions and to review their actions. 

In India, Judicial review can done by both the High Court and the Supreme Court. The power of judicial review to the high court is under Article 226 and Article 227 of the Indian constitution, and for the Supreme Court, it is under Article 32 and Article 136 of the Indian constitution. This research paper will help you to better understand the concept of judicial review, how it has evolved, its limitations, procedure, criticism and its impact on constitution.

RESEARCH METHODOLOGY:

This paper is descriptive and the research is based on secondary sources for a proper and better understanding of Judicial review and its constitutional interpretation. Secondary sources of information like websites, journals, and constitution books are used for the research. 

REVIEW OF LITERATURE:

The concept of Judicial review came from the doctrine of separation of power which was given by Aristotle and he said that it must be followed in a strict sense to reduce the conflict of powers between the three organs of the government which are the Legislature, Executive and the third pillar is the judiciary but in India, we do not follow the doctrine of separation of power in a strict sense rather we follow flexible separation of power. The process of judicial review is an institutionalised process that will strengthen the democratic process and while exercising the power of judicial review judiciary must act with caution and the decision taken should be based on principles of law.  In India, we don’t follow the concept of absolute supremacy parliament in legislation and this concept has evolved through many constitutional decisions. Mauro Cappelletti’s book Judicial Review in the Contemporary World used an excellent method of study by doing a comparison of their evolution and development in different legal systems. 

In P.B. Vijaya Kumar’s, Dynamics of Justice a La Supreme Court Of India the author has talked about the role of the judiciary in the country. The judicial review power court has declared human rights as meaningful to the vulnerable section of society, also recognized the right of speedy trial, created an independent judiciary, and re-examined the provisions relating to the death sentence.

HISTORY OF JUDICIAL REVIEW:

The judicial review concept first originated in the United States in which the Court decided its authority to strike down any laws that violate the American constitution. Coming towards the concept and history of judicial review in India were taken from the American constitution, this concept in India was adopted because it is important for many complexities that can arise in this dynamic and changing society. This concept was for the first time addressed in the case of Shankari Prasad v. Union of India (1951) where it was held that parliament has unlimited amending power but this was later overruled in Keshavanand Bharti v. State of Kerela 1973 where it was held that Parliament while exercising its amending power cannot alter the Basic Structure of the constitution. So with the concept of judicial review came in India. (Rana, 2022)

NEED FOR JUDICIAL REVIEW 

Judicial review is very important to uphold the supremacy of the constitution, as it will prevail only over those laws in the country that are valid as per the provisions of the constitution and would declare other laws that are inconsistent with the constitution as null and void.  

Judicial review is also important for safeguarding the fundamental rights of the citizens that are guaranteed to them under part III of the Indian constitution.

It is also very important for protecting the independence of the judiciary from the other two organs the executive and legislative.

With the power of judicial review, there is a balance between the center and the state so that they both are not competing for more power.

It also helps in preventing the tranny of the executives.

Judicial review is important for checking the possible misuse of power by the executives and the legislature.

CLASSIFICATION OF JUDICIAL REVIEW:

Judicial review can be classified into three types:

1. Reviews of Legislative Actions: In this type of judicial review it has to make sure that laws passed by the legislature are not in contravention of the constitution otherwise that law would be declared void. It can be challenged and reviewed on the ground that there is any law is passed that violates the fundamental rights under part III or any other limitation like in the case of the President’s assent.

2. Review of Administrative Actions: In this, there should be constitutional discipline when administrative authorities are exercising their powers. This can be challenged on the ground that if the principles of Natural Justice are not exercised, in case of fraud, ill- will or if there is non-application of mind. 

3. Review of Judicial Decisions:  The court has reviewed their earlier decisions and overruled the judgment. Lile it was done in the Golaknath case.

4. Review of Constitutional Amendments: while exercising the power of judicial review can declare any constitutional amendment as null and void if it is in contravention to the provisions of the constitutions and it can be challenged on this ground and would be declared void.

LIMITATIONS OF JUDICIAL REVIEW 

With the power to the judiciary of judicial review there are some limitations as well as on the judiciary upon exercising the power of judicial review as when exercising its power if it tries to interfere in their work it can be changed into Judicial overreach.

The power of judicial review can only be exercised by the upper courts like the Supreme Court and High Court and the lower courts don’t have any of this power.

The power of judicial review limits the functioning of the government as it is only used for finding the procedure for reaching a decision.

When the court exercises the power of judicial review then the opinion of the judges in any case becomes the standard for ruling other cases.

The repeated interventions of the court can diminish the faith of the people in the integrity and efficiency of the government.

The judiciary’s power of judicial review cannot interfere with political questions unless necessary  The judgments of the court can be influenced by personal and selfish motives, hence it can cause harm to the public at large.

PROCEDURE OF JUDICIAL REVIEW:

The process of judicial review shows the judiciary’s commitment to protecting the citizens’ rights and safeguarding the Constitution.  The process of judicial review is initiated when a person or group of persons is aggrieved by any action of administrative and executive so first they need to file a petition for the action, then the court will examine and check whether the petition will be admissible or not if the petition is admitted then the hearing will be conducted and then will decide the case based on merits and will deliver its final judgment if the administrative or executive action is unconstitutional means if it is a violation of the constitution then the judiciary will strike it down but if it is not unconstitutional then it will not declare such action as void. After passing of final judgment then the government has to comply with the order of the court by modifying and repealing a law

IMPACT ON CONSTITUTIONAL INTERPRETATION:

Judicial review plays a significant role as it declares any actions of legislature, executive, and administrative actions as unconstitutional if it deny the rights to the people and and is in contravention of the constitution. In India, we follow a parliamentary system where the people of the country are also involved, so the citizens elect their representative who in turn is answerable to the citizens for their actions, and all those officers who hold public office and have to work within the ambit of constitutional provisions. The concept of judicial review is developed because of the rule of law and the separation of powers between the three organs of the government. Judicial review evolved for three reasons, first to maintain fairness in the actions of the government, second to safeguard the fundamental rights guaranteed to citizens under part III of the Indian constitution, and third to maintain legislative competency between the center and the state. Different articles in the constitution cover the concept and give power to the  judiciary of judicial review

Article 13 

This article confers the power of judicial review and it states that all those laws that are inconsistent with the fundamental rights under part III shall be declared as void. This means all the laws, rules regulations, and ordinances issued and any amendments in the constitution by the center or state can be challenged if it violates any fundamental rights or violates any part of the basic structure of the constitution. So by this provision of the constitution, the Supreme Court can strike down and declare it unconstitutional.

Article 21 

This article states that “no person shall be deprived of his life or personal liberty except by procedure established by law”  In the Maneka Gandhi case the Right to travel abroad was included under personal liberty under this article, so by this, there was an expansion in the concept of personal liberty and it was also said any type of government restraint on personal liberty should be Just, fair and non-arbitrary and reasonableness mentioned under Article 14, 19 and 21 of the constitution.

 Article 32

This article is also called Right to Constitutional Remedies.  As per this, any person can move to the Supreme Court for the enforcement of the Fundamental Rights conferred to the citizen by the constitution means any person whose fundamental rights have been violated can directly approach the Supreme Court and High Court to enforce their fundamental rights. The Supreme Court can issue orders or writs like Habeas Corpus, Mandamus, Certiorari, Prohibition, and quo warranto to enforce fundamental rights.  These remedies are provided to the citizens to reinforce their infringed rights.

Article 226 & 227

These articles confer the power of judicial review to all the High courts So as per Article 226 the High courts can issue writs for enforcing the fundamental rights as well as for any other purposes.  Article 226 is the discretionary power of the High Court means the court must listen to the petitioner if they have approached them and had no alternative remedy. Whereas as per Article 227 of the Constitution, High Courts have the superintendence power over subordinate courts and tribunals. (Rana, 2022)

Article 131 – 135

This article empowers the power of the Supreme Court to hear disputes between the center and states and conflicts between two states. 

Article 136

The first-ever Public Interest Litigation was filed in the case Hussainara Khatoon v. State of Bihar also through this case Right to Speedy Trial came and from that time it has evolved in India in issues of Consumer protection, preventing environmental destruction and pollution and for disadvantaged and vulnerable groups of the society. 

Article 137: this article provides an important power to the Supreme Court to review any judgment or order passed by them, but a criminal case will only be reviewed if the error is on the face of the record.

Article 141
As per this, the Decisions of the Supreme Court are binding on all the courts in India.

Article 143 

In this president can ask for the advice of the Supreme Court if the question is of public importance. 

9^th  Schedule of  Indian Constitution

As per Article 31-B, all acts that come under the ninth schedule of the Indian constitution cannot be challenged on grounds that it is in contravention to the fundamental rights guaranteed under the constitution but this was later changed in the IR Coelho case where it was held that laws under 9^th scheduled are open to challenge if they are in contradiction to the fundamental rights or Basic structure of the constitution.

CASE LAWS:

Golaknath v. State of Punjab 1976:  

In this case, the court held that parliament cannot amend the fundamental rights given in the constitution but it was later overruled in the 24^th Amendment.

Keshavanand Bharti v. State of Kerela 1973:

In this case, the court held that there is unlimited power of the parliament to amend the constitution but this case was one of the most historic cases as it was held the power is unlimited but they cannot amend the basic structure of the Indian Constitution. In this case the doctrine of Basic Structure was introduced and parliament cannot alter it.

Maneka Gandhi v. Union of India 1978:

In this case, it was held that the Right to travel abroad comes under Article 21 of personal liberty so by this decision of the court the scope of personal liberty was expanded.

Vishaka v. State of Rajasthan 1997: 

In this case, also court while exercising its power of judicial review has laid down several guidelines for employers to prevent such harassment at the workplace and redress it.

Minerva Mills v. Union of India

In this case, the court held that parliament does not have absolute and unlimited amending powers of the constitution.

Waman Rao v. Union of India:

In this case Supreme Court held the constitutional validity of Articles 31A, 31B, and 31C these were related to the acquisition of property and so there was an amendment in these laws.

So in these above cases, the judiciary has exercised its Judicial review power and has upheld the Constitution’s integrity and has tried to strive for a proper balance between the three organs of the government, and has also made sure that the citizen’s Fundamental rights which are guaranteed to them under part III of our constitution are not violated by any action of the government.

CRITICISM:

The concept of judicial review has faced so many criticisms in India the process of judicial review is very expensive and very time-consuming process which will lead to delays is delivering justice to the aggrieved person and would not be effective in problematic and urgent situations.

The judicial review is also criticized on the basis that there are chances that it complex problems judges may not have proper expertise on that particular topic so there are chances that they may not be able to deliver effective and beneficial judgment.

Other criticisms of judicial review include that the judges who decide the case are not answerable to the people like the elected representatives as they are not directly elected by the people. Another criticism is that while exercising the power of judicial review the judiciary is encroaching on the domain of the other two organs of the government. So these are some of the criticisms faced by the process of judicial review

SUGGESTIONS & CONCLUSION:

The concept of judicial review is very important as it acts as a safeguard and protects citizens of the country from arbitrary laws and actions of the other two organs of the government and acts as a guardian of our Indian Constitution. The power of judicial review with judiciary will help protect the citizens from arbitrary rule and there will not be any misuse of power. Hence the power of judicial review is the most powerful tool of the judiciary as the higher courts of the country like the Supreme Court and the High Court can deliver justice effectively on the actions of the other two organs of the government so that they function properly and effectively within their domain without encroaching the domain of the other organs. So Judicial Review can be termed as a most important requirement in this dynamic society where continuous changes is occurring and with this, it is also a part of the Basic Structure Doctrine of the Indian Constitution hence it cannot be amended or altered by the parliament. So this has absolute roots in India so yes the function of judicial review is one of the most important and powerful systems in the Indian Constitution. Some of the suggestions are that the judiciary should decide the matter impartially based on facts and evidence in the cases, the independence of the judiciary should not be hampered and all organs should respect its independence, the interference done by the judiciary should not be misused or for wrong purposes and also there should be a trial of every citizen in ordinary court and no special court should be there for any special group of persons. Also, there should be some relaxation in approaching the court for judicial review by PIL so at last all three organs of the government should work independently without encroaching into each others domain to protect the citizens from arbitrary powers.

References

1. (Rana, 2022) https://blog.ipleaders.in/all-about-judicial-review/
2. (MOHD FAIZ KHAN1 AND SYED UMAM FATIMA HASAN, 2020) https://www.ijlsi.com/wp-content/uploads/Doctrine-of-Judicial-Review-in-Indian-Constitution.pdf
3. (Majumdar, 2023) https://lawctopus.com/clatalogue/clat-pg/power-of-judicial-review-in-india
4. (Drishti IAS, 2021) https://www.drishtiias.com/daily-news-analysis/judicial-review-1
5. D.D Basu, Introduction to The Constitution Of India

Vaishali Samadhia

Amity University, Madhya Pradesh