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Judicial Review under the Indian Constitution

Updated: Feb 12, 2022


The term Judicial review in general means the power of a court to review and potentially strike down an act of legislature as unconstitutional and invalid. The court's force of legal audit has been separated from the standard of balanced governance.

There have also been significant changes in the concept of judicial review since the Constitution of India was enacted.

Judicial Review under the Indian Constitution

The arrangement of governing rules between the law-making body and the leader from one perspective and the legal executive then again gives how mistakes committed by one are corrected by the other and vice versa.

For every civilized and democratic society, it becomes necessary that all the three organs of the State are working in complete harmony. Every organ will undoubtedly act inside its own area. And the entirety of their activities must be tried on the Constitutional and vote based standards.

From a broad perspective, Judicial review also envisions in itself, the power of cognizance over administrative as well as executive actions, abiding on the principles of natural justice.

Additionally, the Supreme Court and the High Courts, also possess the power to review and check the omissions and decisions of public authorities, to ascertain any abuse of power or violation of the principles of natural justice.

Judicial review is different from the right of appeal. An appeal is a statutory right. However, the statutory power of an appellate body such as the High Courts, and the Supreme Court can change or overrule the decision of the lower courts and can re-decide or re-visit the previous verdict.

Contrary to this, in the event of judicial review, the courts have restricted forces. The courts don't go about as a re-appraising position while doing a legal survey. If there should be an occurrence of judicial review, the courts ask how the choice was reached.

The superior courts scrutinize the whole decision-making process and check whether the decision was made lawfully or not. Unlawful decisions cannot be replaced by fresh decisions of the higher courts, but they are rather reverted to the lower courts.

To understand the concept of judicial review, the present module has discussed the position of judicial review in the United States and the United Kingdom. While examining its Constitutional situation in India, the module has likewise broken down its force of investigation in the issue identifying with the State's regulatory and administrative activities.


However, in general, the Kings had their own judges to administer justice.

The commissions of four law and other committees appointed during the years 1834 to 1947, give proper structure to then the justice system in India.

Judicial Review under the Indian Constitution

In India, the judiciary is the guardian of the Indian Constitution, the democratic atmosphere and individuals fundamental rights. An independent and impartial judiciary fights against Legislative Arbitrariness. Indian judiciary is empowered with the power of judicial review.

The Constitution of India layout provisions for judicial review through Articles 13, 32, 131-136, 143, 226 and 246. The power of judicial review includes in its ambit the actions of the Executive as well as statutes passed by the Parliament of India.

According to Dr B. R. Ambedkar, the provisions for judicial review, in particular, the writ jurisdiction would provide quick relief to the individuals against the abridgement of fundamental rights.

In A.K.Gopalan v State of Madras, the court held that the Constitution is supreme and every statute has to conform with the constitutional requirements. Moreover, the binding duty of the courts is to decide whether any law or statute is constitutional or not.

The Supreme Court in State of Madras v Row stated that the Indian Constitution provides express provisions for judicial review of legislation. The determination of the constitutional validity of any impugned statute is the foremost responsibility of the Court.

Justifying judicial review, in S.S. Bola v B. D. Sardana Sharma, Justice Ramaswami held that the founding fathers wisely added the provision of judicial review for maintaining federalism, protecting fundamental rights, and strengthening the concept of liberty and equality in India.

The court held that the Chief justice of India should play an active and major role in the process of appointment of judges of the High court and Supreme Court. Justice Bhagwati in Sampath Kumar v Union of India held that Judicial Review cannot be abrogated by the Parliament since it is an essential feature of the Indian Constitution.

Without the provision of judicial review, the enforcement of fundamental rights would be meaningless and the same was observed by Justice Chandrachud in the Minerva Mills case.

A controlled constitution will be under no control. In the same case, Bhagwati, J observed that without the power of judicial review there will be no Government of laws and the rule of law would become an illusion.

The Supreme Court in L. Chandra Kumar v Union of India held that High Court's jurisdictional power under Article 226, and the Supreme Courts power under Article 32 are the basic structure of the Indian Constitution.

Therefore, the Supreme Court declared clause 2(d) of Article 323A and clause 3(d) of Article 323B unconstitutional to the extent they excluded the jurisdiction of High Courts under Article 226 and Supreme Court under 32 of the Constitution of India.

Furthermore, the Supreme Court in State of West Bengal v Committee for Protection of Democratic Rights again reiterated that the power of judicial review of the High Courts and Supreme Court is considered to be a part of the basic structure of the Constitution of India and cannot be abrogated by any legislation of the Parliament of India.

The court again viewed that judicial review gives the practical shape to the objectives of the Indian Constitution. The Court said that the Supreme Court and High Courts can invalidate a legislative action that violates the federal structure of our nation.

More importantly, in the Golak Nath case, Chief Justice Subba Rao upheld the law-making role of the judiciary. He said that Articles 32, 141 and 142 of the Indian Constitution enable the Supreme Court to formulate legal principles to reach the ends of justice. Therefore, all such constitutional provisions strengthen the Indian Judiciary, which in consequence attracts people’s trust.

Widening the scope of judicial review, the Supreme Court in Gridco Limited v Sadananda Doloi held that power of judicial review under Article 226 exercised even in those cases where the government is involved in contractual transactions.

It was observed that a writ Court has the power to review the administrative action on grounds of illegality, unreasonableness, unfairness or irrationality. There is, however, no appellate authority imbued to the writ courts, in their exercise of the power of judicial review.

Similarly, the writ court cannot sit as an Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances.

Judicial Review of Legislative Action in India:

Prima facie, the Article deals with the provisions and procedure for judicial review. This power consequently allows and empowers judicial authorities to analyze statutes passed by the Parliament or the State legislatures.

Judicial Review under the Indian Constitution

It enables the courts to examine the constitutional validity of laws passed by the Parliament and the state legislatures.

In India, Judicial review of legislative action is being done by using some basic principles of Constitutional Law i.e. doctrines of Pith and Substance, Colourable Legislation, Severability, Liberal Interpretation, Limitations of Stare Decisis, Unconstitutionality and Eclipse, and Waiver.

The doctrine of Basic Structure is one of the most reliable grounds for judicial review. Only the statute laws i.e the law passed by the Parliament or State legislatures are eligible for review under Article 13 and it does not encompass the orders, decisions or judgments given by the Supreme Court under Article 142.

The Constitution has distributed the legislative powers between the centre and the states. Both of them have to exercise their powers within their assigned domain. They cannot interfere with the powers of each other.

The courts decide whether a legislature or an executive has acted beyond its jurisdiction or against the constitutional requirements or not.

  • Article 13 provides that, fundamental rights will prevail over all laws in force before the commencement of the Constitution. It also prohibits the making of any law, rule, regulation, etc that violates or diminishes the fundamental rights.

However, this provision does not impose restrictions on the process of the constitutional amendment. Parliament may amend any Constitutional provision while exercising its constituent power following the procedure mentioned under Article 368 of the Indian Constitution.

In Golaknath v Punjab, the Supreme Court of India categorically held that the Parliament cannot amend the fundamental rights. The Court held that the procedure laid down for the constitutional amendments in Article 368 was, law within the meaning of Article 13.

In Kesavananda Bharti v State of Kerala, the Supreme Court observed that the Parliament is empowered to amend provisions of the Constitution. However, the Parliament is not empowered to alter the basic structure of the Constitution of India.

In this case, the Supreme Court ruled that the 24th, 25th, and 29th Amendments were unconstitutional to the extent that they violate the basic structure of the Constitution. In doing so the court overruled the majority opinion of Golaknath’s case. Again, to prevent any kind of chaos, the Supreme Court applied the doctrine of prospective overruling.

  • However, the nature and character of the basic structure were elaborated in many other cases. The court in many pronouncements has declared that democracy, secularism, rule of law, federalism, judicial review, separation of powers, and the like, are the core principles of the Constitution of India.

The Supreme Court for the first time faced the issue of the applicability of the Basic Structure in Indira Gandhi v Raj Narain. The Court decided by a majority that ordinary laws are not subject to the test of the Basic Structure of the Constitution. The doctrine of basic structure is applied only to determine the validity of Constitutional Amendments.

  • The dispute over the power of judicial review was again discussed in Minerva Mills Ltd. v. Union of India. The Court was requested to assess the constitutionality of the Forty-second Amendment, which provided that no amendment would be challenged in any court of law on any ground.

The Court unanimously held that the provision was void since it violates the basic structure of the Constitution.

Another interesting case is of State of Rajasthan v Union of India in which the scope of judicial review was discussed. In this case, the Supreme Court held that the Proclamation of emergency under Article 356(1) does not have any kind of immunity from judicial review.

The Supreme Court or the High Court can strike down the Proclamation if the court finds that it was settled on mala fide or unessential or incidental grounds.

The two recent decisions are of utmost importance where basic structure doctrine and fundamental rights review under Article 13 have been combined.

In M. Nagraj v Union of India, four constitutional amendments i.e. the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-first Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000, and the Constitution (Eighty-Fifth Amendment) Act, 2001, were challenged.

The amendments enlarged the scope of reservation. It was contended that such amendments were made by the government to override the effect of previous Supreme Courts decisions.

The Apex Court believed that the concepts of consequential seniority or catch-up rule were not similar to the concepts of secularism or federalism under the Indian Constitution.

The Supreme Court said that deletion or addition of such concepts does not change the equality principle embedded under Articles 14, 15 and 16 of the Constitution.

The basic structure of the Constitution was not affected by such amendments.

Another recent decision of the Supreme Court came in the year 2007. This case was I.R. Coelho v State of Tamil Nadu and others.

The Supreme Court held that all Constitutional amendments made on or after 24th April 1973 by which the 9th Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic features of the Constitution enshrined under Article14, Article 19 and Article 21.

To clarify the situation, the court further declared that even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would still be tested on the ground that they destroy or damage the basic structure if the fundamental right or rights are taken away or abrogated pertains or pertain to the basic structure.

Judicial Review of Administrative Action in India:

Judicial review of administrative action in India has been developed to regulate every action of the administrative authorities. In the process of judicial review of an administrative decision, the writ court does not sit as an appellate court.

Again, it is not for the writ court to replace its own decision against the decision of the administrative authorities. The court scrutinises the whole administrative action and sees how the whole action was reached.

Upon arrival on the arbitrariness of such action, the Court can set aside the whole action taken and revert the issue or matter to the original administrative authority for re-scrutinization.

Judicial Review under the Indian Constitution

If the court finds an administrative action as arbitrary or irrational, the court sets aside the whole action and sends back the matter to the administrative authority for re-examination.

In Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd., the Supreme Court said that illegality, irrationality, and procedural impropriety are grounds for judicial review of administrative action. Courts do not interfere in an administrative decision unless the decision is an outcome of an unfair procedure.

Mere suspicion of unfairness would not be sufficient. The claimant has to prove the unfairness in the administrative action in any of its forms including abuse or misuse by the authority of its powers.

The above-said grounds were recognised for the first time infamous decision of Lord Greene in Associated Provincial Picture Houses Ltd. v Wednesbury Corpn. The court said that the administrative action is unreasonable if the action is based on wholly irrelevant material or wholly irrelevant considerations or if the action is irrational.

The Doctrine of Proportionality is a well-recognized concept of judicial review.

If the administrative authority awards disproportionate punishment, it becomes necessary for the judicial court to intervene.

Award of punishment which is grossly disproportionate to the allegations cannot claim immunity and remains open for interference under a limited scope of judicial review.

No uniform code in India directs the administrative authorities to adopt a minimum procedure for taking any of its actions. But Indian courts have recognised the principles of natural justice i.e rule of fair hearing and the rule against bias, as a precondition for administrative adjudication.

Indian judiciary has also widened the scope of these principles by making the authorities more accountable and answerable in their actions. The courts emphasise its application in all cases irrespective of the fact that whether it is compulsory under some statute or not.

Moreover, the principles of natural justice are very wide in scope and, include various modes of fairness. Similarly, the observance of principles of natural justice is necessary in cases of quasi-judicial functions and other kinds of administrative action.

With the development in administrative law, principles of natural justice have also changed. Earlier, the notion was that the enquiries were administrative in nature, therefore it attracts no principles of natural justice. But now, the time has changed.

Currently, administrative authorities are supposed to conduct enquiries in good faith and without any kind of business. In the modern welfare state, it is no more significant to classify any of public authority’s actions while applying principles of natural justice.

Under the Indian Constitution, every organ of the State is regulated and controlled by the rule of law. The concept of rule of law requires the State to discharge its functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously.

The doctrine of legitimate expectation as another ground of judicial review was originated in the case of Schmidt v Secretary of State. In this case, an alien was allowed entry into the UK by the Secretary of State and it was held by the Court that upon the allowance of such entry, the permission to stay in the UK was a legitimate expectation.

This doctrine is now being extensively used by Indian courts although it is not a legal right. While dealing with the nature and scope of legitimate scope, the Supreme Court in Union of India v Hindustan Development Corporation explained that the legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence.

The expectation must be justifiably legitimate and protectable. Also, every such real assumption doesn't help anyone else fructify into a right; hence, it doesn't add up to one side in the regular sense.

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