Judicial review is the power of Judiciary to review any act or order of Legislative and Executive wings and to pronounce upon the constitutional validity when challenged by the affected person. In other words, the power exerted by the courts to examine the action of the legislative, executive and administrative arms of government and to ensure that such actions are in conformity with written provisions of the national constitution is termed as the power of judicial review. The doctrine of judicial review is a contribution of the American constitutional system. This was acquired by the Supreme Court of the United States in Marbury vs Madison case of 1803 when Chief Justice Marshall announcing the verdict remarked that any law violating the constitutional provisions is null and void. Our constriction contains specific provisions for judicial review of legislation as to its conformity with the constitution, unlike in the United States, where the Supreme Court has assumed extensive powers of reviewing legislative acts under the due process, clause. In India, the powers of judicial review are exercised within the framework of a constitution which guarantees individual fundamental rights, distributed powers between the centre and the states and clearly defines and delimits the power and functions of every organ of the state including Parliament. In Indian constitution, the power of Judicial review of legislation is given in such articles as 13, 32, 131-36, 143,226,245,246,251,254 and 372. According to Prof. Rumki Basu, the constitutional validity of a law can be challenged in India on the following grounds:
• That if is not within the competence of the legislature which has passed it
• It is repugnant to the provisions of the constitution
• It infringes on one of the fundamental rights There are specific provisions in the constitution which provide for judicial review, though the Supreme Court has enumerated certain rules for applying this doctrine.
According to constitutional expert H.M. Secrvai, they are as follows:
• There is a presumption is favour of constitutionality and a law will not be declared unconstitutional unless the case is free from all doubts and onus to prove that it is unconstitutionally with the petitioner who has challenged it.
• When the validity of law is questioned, it should be upheld to protect parliamentary sovereignty.
• The court will not hear an objection as to the constitutionality of a law by a person whose rights are not affected by it.
• A statute cannot be declared unconstitutional merely because it is not consistent with the spirit of the constitution.
• Courts should not pronounce on the validity of an Act or part of an Act which has not been brought into force because till then the question of validity would be merely academic.
The advocates of the Judicial Review have a views that It is for the courts to decide whether any of the constitutional limitation has been over stopped or not because the constitution is the organic law of the land subject to which constitutional amendments and ordinary laws are made by the legislature which itself is set up by the constitution. But extreme supporter of parliamentary sovereignty, J.L. Nehru had different views, ‘No Supreme Court and no Judiciary can stand in judgment over the sovereign will of Parliament, representing the will of the entire community Ultimately, the whole constitution is a creation of Parliament’. Despite the intellectual differences, the process of Judicial Review is going ahead. Literally, both constitutional amendments and parliamentary laws are subject to judicial review. The Process got started with the First Amendment Act, 1951, which abolished the Zamindari System. This act was challenged in the Shankari Prasad vs Union of India (1951) case on the ground that the said Act abridged the right to property and under Art.l3(2) Fundamental Rights could not be amended. The court rejected the petition and stated that Parliament is authorized to amend any part of the constitution including the chapter on Fundamental Rights. This was upheld by a majority judgement in the Sajjan Singh case where the 17th Amendment Act 1964 was challenged on the ground that it violated Fundamental Right under Article 31A. The land¬mark judgement professing judicial activism and reversing earlier judgments were challenged in the Golaknath case (1967). The court by majority of 6-5 held that Parliament does not possess the authority to amend the chapter on Fundament Rights with respect to Article 13(2) embedding the doctrine of Judicial review and giving way to due process of law. Thereafter, within few years, the Golak Nath Judgement was superseded by Mrs. Indira Gandhi, because she had passed the 24th constitutional Amendment that restored to Parliament the powers to amend any part of the constitution, including Fundamental Rights. In 1973, in the Keshvanand Bharti case (issues related to Kerala Land Reforms Act) the constitutional validity of the 24th, 25th and 29th amendments by a 13 Judge Bench chaired by Chief Justice S.M. Sikri, the Supreme Court made a new formation that the amending power in Article 368 does not enable Parliament to alter the basic structure or framework of the constitution. The court upheld the 24th Amendment and ruled that Parliaments amending power could reach any or all parts of the constitution, but it could not alter or destroy its basic structure. Answering a question relating to basic structure, Chief Justice Sikri said, • supremacy of the constitution, • republican and democratic form of Government, • secular character of the constitution and • separation of power and federal division of powers; these are the basic structure of the Indian constitution. Moreover, the mandate to build a welfare state contained in Part IV of the constitution, unity and integrity of the nation, sovereignty of India, democratic character of the polity, essential features of individual freedoms of citizens and the preamble and its elaboration in the rest of the constitution, are also the defined basic structure, of the country. The unique case of Indira Gandhi vs Raj Narain (SC, 1975) illustrates the kind of extension ability of a case law to new principles we alluded to previously. This judgement declared free and fair elections as part of the basic structure of the constitution. In 1980, the Supreme Court declared in Minerva Mills vs Union of India case that the constitution had conferred only a limited amending power on the Parliament and therefore it cannot under the exercise of that limited power enlarge it into an absolute one. Before S.R. Bommai case, there was a confusion that implementation of Article 356 in the states is a matter of Judicial Review or not. But in this case the Supreme Court departed from tradition and made president’s rule subject to judicial review (1994).
Judicial Review of Legislative Enactment and Ordinances
In A.K. Gopalan vs state of Madras (1951), the Supreme Court declared section 14 of the Preventive Detention Act of 1950 invalid and, thus, exercised its right to declare void any parliamentary enactment repugnant to provisions of the constitution. Since then, the Court has had on many occasions to declared central or state legislations, invalid either wholly or partly. For example, in Champakam Dorairajn’s case, the Supreme Court declared that the state governments decision on reservation of seats in medical colleges was unconstitutional. Land Reform Acts were struck down as unconstitutional in many states. In 1970, the Supreme Court declared the Bank Nationalization ordinance as unconstitutional. Even the Presidential order derecognizing Privy Purses was also challenged in the Supreme Court which declared the order as unconstitutional and void. To sum up, the purpose of Judicial review is to act as a constitutionally mandated check on the legislative and executive powers whenever they out-reach the constitutional limitations. Thus a law to be valid must conform to the constitutional norms. Reality is that the role of judiciary is to merely interpret and declare the law was the concept of bygone age. In the era of social Justice the judicial review is the need of the time but it should work harmoniously within the Parliamentary framework.