Introduction
Judicial review refers to the power of the Supreme Court and the High Courts to strike down a statutory law that violates the basic structure of the Indian Constitution. Supreme Court, in the Kesavananda Bharati case,1973, declared that any law passed by the Parliament cannot violate the basic structure of the Constitution. With the passage of time, the apex court has explained these basic structures as supremacy of the constitution, rule of law, independence of the judiciary, secularism, etc. This judicial review keeps a check on arbitrary power, safeguarding federalism, fundamental rights, and the separation of powers. To put it in one line, "In India's constitutional democracy, the Constitution is the supreme legal authority."
Constitutional Basis of Judicial Review in India
Though Judicial review is not explicitly mentioned in the Constitution, it is a basic structure that the apex court has uttered on several occasions. But there are constitutional provisions that indirectly give the apex court and High Courts the power of judicial review. Key provisions include:
Article 13 - Any law that infringes on Part III, i.e., the fundamental rights guaranteed under the Constitution, is void. The 24th Amendment Act later added that Article 13 does not apply to constitutional amendments.
Article 32 (Remedies for Rights) - The Supreme Court has the power to issue directions, orders, or writs, including writs such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any Fundamental Right. This makes Article 32 a Fundamental Right in itself.
Article 226 - Every High Court can issue writs (habeas corpus, mandamus, prohibition, quo warranto, certiorari) “for the enforcement of any of the rights conferred by Part III” and “for any other purpose.” The jurisdiction of the High Courts over writs is broader than that of the Supreme Court.
Article 368 (Constitutional Amendments) - Parliament’s power to amend “by way of addition, variation or repeal” any provision is subject only to the procedure in Article 368. After the Kesavananda Bharati v. State of Kerala case, the Court put limits. Subsequently, the 24th Amendment Act added that “nothing in Article 13 shall apply to any amendment made under Article 368”, while the 42nd Amendment (1976) attempted to bar any judicial review of amendments and declared Parliament’s amending power unlimited. (These latter clauses were struck down by the apex court in Minerva Mills (1980), reaffirming that even constitutional amendments are subject to judicial scrutiny as part of the basic structure.)
Doctrine, Scope and Types of Review
Judicial review in India comes from the Constitution's supremacy. Legislative review allows courts to strike down statutes that violate Fundamental Rights or other constitutional provisions. For example, any amendment made to Article 14 (equality before law), which is, in the court's eye, beyond the power of the legislative body, can be invalidated by the court. Not only do the legislative come under the purview of the court, but also the administrative actions as well. The court can intervene if executive action breaches constitutional or legal norms. The principles of natural justice and fairness underlie review.
Remedy available in the Judicial Review
Under Articles 32 and 226, writs are principal remedies: habeas corpus for unlawful detention, mandamus compels the entity to perform a specific legal or public duty that was unlawfully neglected or refused to carry out, prohibition or certiorari to control lower tribunals and authorities, and quo warranto to challenge unlawful office-holders. Courts may also grant declarations or injunctions. For example, in Minerva Mills, the Supreme Court struck down parts of the 42nd Amendment and declared certain acts of Parliament unconstitutional. In the S.R. Bommai case, the Supreme Court ruled that the Centre cannot misuse Article 356 to dismiss state governments, and such actions can be examined by courts through judicial review.
Contemporary Debates and Critiques
There has been a long debate on what is the extent of the apex court's intervention in the legislative and administrative system. In Shalini Shyam Shetty v. Rajendra Shankar Patil, the Supreme Court ruled on the limits of High Courts intervening in private civil disputes. It established that writ petitions are typically not maintainable against private landlords without direct state involvement. However, it regularly rejects or refuses to entertain Public Interest Litigations (PILs) and petitions, directing individuals to approach their respective High Courts instead. On the other hand, in Maneka Gandhi vs Union of India, it declared that “procedure established by law” must be just, fair and reasonable. Thus, even procedural laws are subject to basic rights scrutiny. This explained the ambit of Article 21.
Conclusion
The Kesavananda Bharati v. State of Kerala (1973) case changed the Indian legal system by introducing judicial review in India. This has, in its ambit, controlled the legislature from surpassing its power. As India is a developing nation, new legal and political challenges arise in front of it. It is usual or expected that developments in both fields may clash. But it's the judicial review that reduces the chances of such a clash. New laws will be made and implemented; hence, as a nation, we need a watchdog to keep a check on them.
FAQs on Judicial Review in India
1. Is judicial review mentioned in the Indian Constitution?
Yes, though, it is not mentioned explicitly. It was developed in the Kesavananda Bharati v. State of Kerala (1973). From thereon, the ambit of judicial review has been explained by the apex court in different cases.
2. Which Article provides judicial review?
Article 13 of the Indian Constitution empowers the High Courts and the Supreme Court with judicial review.
3. Which case established the Basic Structure Doctrine?
Kesavananda Bharati v. State of Kerala (1973) established the Basic Structure Doctrine.
4. Can Parliament remove judicial review?
No, parliament’s power to amend Article 13 is limited by the "basic structure doctrine," meaning no amendment can remove Article 13's provision for judicial review or undermine the core principles of the Constitution.
5. What is the difference between judicial review and judicial activism?
Judicial review is the power of courts to examine laws and government actions, while judicial activism is the active role taken by courts to protect rights or fill legal gaps to ensure social justice.
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