The judiciary plays a crucial role in the protection of the constitutional values that have been given to us by the constitution or by the court of law. India has a parliamentary form of democracy where every section is involved in the making of policies and also for decision making. So every point which has been reflected under the section has a fair representation to the people in every body of the constitution. The judiciary plays an important role to review and determine the validity of the law and order that has been made and this power can also be described as Judicial Review. The rule of the law has been followed in India for a long time which means the constitution is the supreme law of land and any law which is consistent in nature is void. The supreme law of the land means that the court has the power to inquire that whether the law of the executive order is conflicting with the written constitution or not. If the order is conflicting with the constitution then the court has to declare it unconstitutional and void. The court has the powers to enquire about the legislature and executive functions of the government and they have to ensure that whatever they have done, they have done under the laws and provisions of the constitution. The judicial review has two aspects on which the court works on, firstly they legitimize the government action and on the other side they protect the constitution against any conflictions or undue actions that have been done against the constitution.
The most important object of the judicial review is to ensure that the authority does not abuse the power and people will receive just and fair treatment of the law. The notion of the judicial review is to justify the alleged rights of the person by granting them into litigation and helps them to grant relief to the aggrieved party by declaring the enactment void if it is unconstitutional. As there was no specific provision was present for the judicial review but it has to be taken as the wider perspective because when questions were raised before the court of law relating to the constitutionality of some provisions then the judicial review has been taken into context with wider perspective. Article 13 of the constitution seeks for the judicial review for pre and post constitutional laws of the nation. Basically this article specifically declares that any law which contravenes any provision of the fundamental rights shall be held null or void. The Supreme Court has also observed that even without this provision the court has the power to declare any enactment invalid which is unconstitutional. The Supreme Court and high court are the guarantors and protector of the fundamental rights under Article 32 and 226 of the constitution. If the question of consistency arises between the union and state laws then under article 251 and 254 it has been declared that state laws will be declared void. In the case of Annie Besant vs Govt. of Madras the Madras high court has stated and observed based on the Privy Council decision that there was the fundamental difference between the legislative powers of imperial parliament and authority of the Indian legislature. The enactment of the Indian legislature has been done in the excess of the delegated powers and in the violation of the limitation that has been imposed by the imperial parliament will be null or void. Article 13 of the constitution has also been inherited with the various doctrines that have been described as the doctrine of eclipse and doctrine of severability.
The doctrine of eclipse has been applied at the stage of pre constitutional statutes. As mentioned under article 13(1), all the pre-constitutional statutes that have been enacted at the time of pre-constitution and are inconsistent with Part III of the constitution which becomes unenforceable after the enactment. When these statutes were enacted as they were fully valid under the provision but they were hidden under article 13 and have lost their validity. In the case of Bhikaji Narain vs. State of MP the court has stated that they were authorized by the state law to the government to exclude all the private motor transporters from the field of transport business. As the court said the part of the law is void as it is unconstitutional in nature and also infringed the parts of article 19(1) of the constitution. The Supreme Court also stated after the amendment of clause 6 of the said article the constitutional impediment was removed and they have stated it unconstitutional. Then under Doctrine of severability it has been stated that this doctrine gives direction to the court of law for the separation of an unconstitutional part from the legislation and the rest of the part which is not violating the fundamental right nor is it unconstitutional in nature remains to be operative. So from this doctrine the entire legislation should not be held void rather than the part of it. In A.K Gopalan vs State of Madras it was stated by the court when section 14 of the Prevention Detention act was found to be violative in nature in relation with article 14 of the constitution then court stated that only section 14 of the act that has to be struck down or has to be modified so it cannot be unconstitutional in nature rather than diminishing the whole act.
Judicial Review under Constitutional Amendments
The constitutional amendments are the crucial aspect as these amendments are rigid in nature and as we know the parliament has the supreme power in the amendment of the constitution but does not abrogate the structure of it. Regarding this, the conflict was held between the Supreme court and Parliament for the constitutional amendment and regarding the conflict, question was raised whether the fundamental rights can be amended under Article 368 of the constitution or not. The first question of the amendment was raised in the case of Shankari Prasad vs Union of India in which validity of the constitution during the first amendment of 1951 act regarding the Right to property was challenged under article 31. The argument was raised against the validity of Article 13 of the constitution that prohibits the enactment of the law and abrogating fundamental rights. It has been stated in the argument that Article 13 would include “Any Law” then law is amending the constitution and then the validity of such law could be judged and the fundamental right would not be infringed. the court rejected the argument relating to the addition of word law under article 13 as held the power to amend the constitution includes the fundamental that has been contained in article 368 and the word law that has been mentioned under article 13(2) consist of the ordinary meaning which means ordinary law made in the exercise of the legislative powers does not include the constitutional amendment.
After the first, fourth and seventeenth amendments the question regarding the constitutional amendment was again raised as in the case of GolakNath vs State of Punjab which was including the three of the amendments and also Shankari Prasad and Sajjan Singh judgement and stated that the fundamental right was unconstitutional. Court also stated the word “law” under Article 13(2) includes any kind of law which will be mean the statutory and constitutional law hence the amendment which contravenes article 13(2) would be declared void. Court also observed that the power of the constitution to amend the constitution is derived from article 245 of the constitution not from article 368 because it only tells about the procedure of the amendment to the constitution and the amendment is known as the legislative process so article 368 cannot be held sufficient to be used for amendment. But the minority has changed the view of the case and has stated that the word law only refers to ordinary law and it is not stating anything which relates to constitutional amendment. From Shankari Prasad and Sajjan Singh case it has been stated that they were rightly decided and article 368 contains both the power and the procedure for the amendment.
The constitutional validity of these amendments was challenged in these amendments in the way of the fundamental rights case. The government has also challenged that they had the right to challenge or destroy the entire entity of the constitution through the instruments of parliaments amending power. After this argument the court was again questioned on the amendment of the rights in the case of Keshavananda Bharati v. State of Kerala popularly known as the fundamental right case. The Kerala reforms act 1963 was challenged but due to the pendency of petition in the court the Kerala act 1971 was amended and it was placed in the 9th schedule of the 20th amendment. The petitioner challenged that at what extent article 368 can be conferred for the amendment. The court overruled the golaknath case judgement and said that under article 368 the parliament can amend the fundamental rights but cannot take the basic structure of the constitution or cannot violate it.
Judicial Review by Parliamentary and Administrative actions
The legislative powers to state and parliament have been given under Article 245 and 246 of the constitution. As parliament makes laws for the part of the state or any territory or for the whole nation but the state legislature make laws for the state or for the specific part of the state. The subject to the provision for the constitution has been provided under article 245(1) but some limitations have been imposed on the state and parliament to make legislation. The court ensures that legislation that has been made by parliament or by the state should be under the limitations of constitutional provisions. Various observations have been given by Supreme Court through judgments on the working of the parliamentary and state legislatures. In the case of SP Sampat Kumar vs. Union of India the constitutional validity of the administrative act has been challenged that the specific act has excluded the jurisdiction of the High court under article 226 and 227 in the service matters and has collated the powers of judicial review which plays an important role in the judiciary. The court also observed that they have also ignored the judicial review of the supreme court under article 323 A of the constitution, and if they have ignored the judicial review under the specific act then they have to provide an alternative mechanism of it rather than ignoring the judicial review. The court also state in the arguments that judicial review is an important aspect of the constitution and it can be taken away from the particular area if some separate mechanism has to be given to the court of law.
Administrative actions also the important aspect in the field of public law as it aims to protect the citizens from the discretionary power that has been used by any branch of the state of Centre. If the legislature confers discretion on the court of law then it has to be noticed by the court of law that the power has to be used in a fair and reasonable manner. In a general way it has been said that the court has no discretion to interfere with the administrative actions but court can interfere in the actions of there is any illegality has been done on the individual. The judicial review can be done on two basis if the administration has failed to exercise the discretion in a reasonable way or they have used it in an abusive manner. The various nature on which judicial review can be done is Illegality, proportionality or unreasonableness. It has been observed in the case of Ajay Hasia v. Khalid Mujib as the Regional engineering college was making admissions based on oral test and the higher marks were allocated in it but the reasonable time period for the test were not given to every individual. As the discretion was done between the individuals for giving the test and marking them based on short time period of test. The court diminished the rule and said only one third marks should be allocated for the oral interview was plainly arbitrary and unreasonable and it is violating article 14 of the constitution. In the case of Air India v. Nargesh Meerza the Air India regulations were questioned as they have said in their regulations that women can retire at the age of 35 years or marriage if it took place in the four year of service. These regulations were also stated that if the women get pregnant after the marriage then she is not capable of the service. When the court asked the regulatory authority then they have said they are not prohibiting the marriage of the air hostess within four years and if the first condition has been fulfilled then why the pregnancy is becoming a question of fact in her service. Supreme Court struck down the regulations by saying that it is unreasonable and arbitrary as they cannot put restriction on the pregnancy of women as it is unconstitutional.
The concept of judicial review has made on the ideological foundations of the constitution. The inappropriate use of the concept leads to its failure and the judicial interpretation of the various cases has not been satisfied by the individuals. The concept was made to protect the rights of the citizens whether it is civil or natural. It also limits the parliamentary sovereignty of the legislature. The Supreme Court has left many debate endless because the recent judgments that has been made and the new trend of making laws has raised many doubts by the individuals which has to be resolved. When the judiciary thinks to solve all the problems of the society and they start performing legislative and executive functions but due to the lack of resources and expertise in the various fields they are unable to resolve most of the issues of society. But the judiciary at its extent has done most of it and has changed and modified various rights that would be in the favor of the legislation and also for the individuals. The paper has concluded all the reconsiderations that has been taken by the judiciary and what other things has to be done in the coming scenario.
Name: Rahul Sodhi
Title: Judicial Review in India
Institutional Affiliation: The NorthCap University
Year of Study: 4th Year
Degree Pursuing: B.B.A L.L.B (Hons)
Article 13 of Indian Constitution: Laws inconsistent with or in derogation of the fundamental rights
Article 32 of Indian Constitution: Remedies for enforcement of rights
Article 256 of Indian Constitution: Obligation of States and the Union
Article 251 and 254 of Indian Constitution: Inconsistency between laws made by Parliament and laws made by the Legislatures of States.
(1918) AIR 1210
(1955) 2 SCR 589
(1950) SC 27
Article 14 of Indian Constitution: Equality Before the law
Section 14 of Preventive Detention Act, 1950: Temporary release of prisoners detained.
Article 368 of Indian constitution: Power of Parliament to amend the Constitution.
AIR 1951 S.C. 455
Id at 1
AIR 1967 S.C. 1643
Extent of laws made by Parliament and by the Legislatures of States
A.I.R. 1973 S.C. 1461
(1987) 1 S.C.C. 124
Article 226 and 227 of Indian constitution: Power of the High court are defined.
Article 323A of Indian constitution: adjudication of disputes and complaints with respect to recruitment and Administrative Tribunals.
A.I.R. 1981 S.C. 487