Introduction:
The Constitution of India provides for an independent judiciary that acts as a guardian of the Constitution and protects the rights of the citizens. One of the key functions of the judiciary is to ensure that the laws passed by the legislature and the actions of the executive are in line with the Constitution. This is known as judicial review, and it is an essential feature of the Indian Constitution.
Judicial review in India stands as a cornerstone of the Constitution, ensuring that both legislative and executive actions conform to the constitutional framework. This vital process, inspired by the U.S. system yet uniquely tailored to the Indian context, serves as a guardian of citizens’ rights and a bulwark against arbitrary governance. In this exploration, we delve into the multifaceted nature of judicial review, tracing its historical origins, understanding its expansive scope, and appreciating its profound impact on India’s legal landscape.
In this blog post, we will provide an overview of the concept of judicial review in India, including its history, scope, and limitations.
History of Judicial Review in India
The concept of judicial review originated in the United States, where the Supreme Court established its authority to strike down laws that were in violation of the US Constitution. In India, the concept of judicial review was borrowed from the US Constitution, but it was adapted to suit the Indian context. US Constitution is one of the Sources of Indian Constitution. The genesis of judicial review in India can be traced back to the influence of the U.S. Constitution. However, India has adapted this concept to fit its unique constitutional and societal fabric. This historical journey reflects India’s commitment to a dynamic and evolving judicial system, capable of addressing the complexities of a diverse and populous democracy.
The power of judicial review was first established by the Supreme Court in the case of Shankari Prasad v. Union of India (1951), where it was held that the Constitution did not provide for any limitation on the amending power of the Parliament. However, in the case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that there were limitations on the amending power of the Parliament, and that the basic structure of the Constitution could not be altered.
Scope of Judicial Review in India
The scope of judicial review in India is quite broad, and it covers not only the laws passed by the legislature but also the actions of the executive. The courts have the power to strike down any law that is in violation of the Constitution, and they can also issue writs like Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto to protect the fundamental rights of the citizens.
The Constitution provides for five types of writs, which are:
- Habeas Corpus – a writ that is issued to produce a person who has been detained unlawfully.
- Mandamus – a writ that is issued to compel a public official to perform a duty that they are required to perform by law.
- Prohibition – a writ that is issued to prevent a lower court or tribunal from exceeding its jurisdiction.
- Certiorari – a writ that is issued to quash the order of a lower court or tribunal.
- Quo Warranto – a writ that is issued to inquire into the legality of a person holding a public office.
Limitations of Judicial Review in India
While the scope of judicial review in India is quite broad, there are certain limitations to this power. The Constitution provides for certain immunities and privileges for the President, Governors, and Judges of the Supreme Court and High Courts. The courts cannot inquire into the acts of these individuals unless they have acted in their personal capacity.
In addition, the courts cannot interfere with the policy decisions of the executive unless they are in violation of the Constitution. The courts also cannot question the wisdom or correctness of a policy decision taken by the executive, as long as it is within the framework of the Constitution.
Significance of Judicial Review
Judicial review is a crucial aspect of the Indian Constitution as it allows the judiciary to act as a check on the legislative and executive branches of the government. It ensures that the government functions within the limits set by the Constitution and that the rights of the citizens are protected.
Judicial review also promotes the rule of law and helps to maintain the balance of power between the three branches of the government. It is an essential mechanism to protect the Constitution and its principles, and to ensure that they are upheld in the face of changing circumstances and challenges.
Process
Initiated by an aggrieved party’s petition, the judicial review process in India encompasses preliminary scrutiny, comprehensive hearings, and a final judgment. This rigorous procedure reflects the judiciary’s commitment to safeguarding constitutional governance and citizens’ rights. The process of judicial review in India involves the following steps:
- Initiation: The process of judicial review is initiated when a person or a group of persons aggrieved by a law or executive action files a petition before a court of law.
- Preliminary Scrutiny: The court examines the petition to determine whether it is admissible or not. The court may reject the petition at this stage if it finds that the petitioner does not have the necessary standing to challenge the law or executive action in question.
- Hearings: If the court finds that the petition is admissible, it will conduct hearings to examine the merits of the case. During the hearings, the petitioner presents arguments to support their case, and the government or the agency responsible for the law or executive action defends it.
- Judgment: After hearing the arguments, the court will deliver its judgment. If the court finds that the law or executive action is unconstitutional or beyond the powers granted by the Constitution, it will strike it down. If the court finds that the law or executive action is constitutional and within the powers granted by the Constitution, it will uphold it.
- Implementation: Once the court has delivered its judgment, the government or the agency responsible for the law or executive action is required to comply with it. If the court has struck down a law or executive action, the government may be required to modify or repeal the law, or to take other steps to ensure compliance with the court’s judgment.
It is important to note that the process of judicial review in India can be a time-consuming and expensive process. However, it is a crucial mechanism that ensures that the government functions within the limits set by the Constitution and respects the fundamental rights of citizens.
Landmark Cases of Judicial Review in India
Indian judicial history is replete with landmark cases where judicial review has played a pivotal role. From the assertion of the Parliament’s amendment power in ‘Shankari Prasad v. Union of India’ to the seminal ‘Kesavananda Bharati v. State of Kerala’ case, which established the ‘Basic Structure’ doctrine, these cases exemplify judicial review’s transformative impact. Over the years, there have been several landmark cases where the Indian judiciary has exercised its power of judicial review to strike down laws that were in violation of the Constitution. Some of these cases are:
- Golaknath v. State of Punjab (1967): In this case, the Supreme Court held that the Parliament did not have the power to amend the Fundamental Rights enshrined in the Constitution. This decision was later overturned by the 24th Amendment to the Constitution, which allowed the Parliament to amend any part of the Constitution, including the Fundamental Rights.
- Kesavananda Bharati v. State of Kerala (1973): This case is considered to be one of the most significant cases in the history of judicial review in India. In this case, the Supreme Court held that there were limitations on the amending power of the Parliament and that the basic structure of the Constitution could not be altered.
- Maneka Gandhi v. Union of India (1978): In this case, the Supreme Court held that the right to travel abroad was a part of the right to personal liberty under Article 21 of the Constitution. This decision expanded the scope of the right to personal liberty and protected it from arbitrary restrictions by the government.
- Vishaka v. State of Rajasthan (1997): In this case, the Supreme Court recognized sexual harassment at the workplace as a violation of the fundamental rights of women. The court laid down guidelines for employers to prevent and redress such harassment at the workplace.
Criticism of Judicial Review
While judicial review is an essential aspect of the Indian Constitution, it has also been subject to criticism from various quarters. Some of the common criticisms of judicial review in India are:
- Unelected Judges: One of the primary criticisms of judicial review is that it gives unelected judges the power to strike down laws enacted by the elected representatives of the people. Critics argue that this undermines the democratic process and leads to a situation where a small group of judges can veto the decisions of the elected representatives.
- Judicial Overreach: Another criticism of judicial review is that it can lead to judicial overreach, where the judiciary starts encroaching upon the domain of the legislative and executive branches of the government. Critics argue that this can lead to an imbalance in the separation of powers and lead to a situation where the judiciary becomes too powerful.
- Delay and Expense: Critics also argue that the process of judicial review can be time-consuming and expensive, which can result in delayed justice for the citizens. This can be particularly problematic in cases where the government is trying to implement urgent policy measures.
- Lack of Accountability: Critics argue that the judiciary is not accountable to the people in the same way as the elected representatives of the people. They argue that since the judges are appointed through a collegium system, they are not accountable to the citizens, and their decisions cannot be easily challenged.
- Limited Expertise: Critics argue that judges may not have the necessary expertise to make decisions in certain complex policy areas, such as economics or science. This can result in suboptimal policy outcomes and can limit the government’s ability to implement effective policies.
In conclusion, while judicial review is a crucial aspect of the Indian Constitution, it has also been subject to criticism from various quarters. Critics argue that it undermines the democratic process, can lead to judicial overreach, and may be time-consuming and expensive. However, supporters of judicial review argue that it is necessary to protect the fundamental rights of citizens and ensure that the government functions within the limits set by the Constitution. Ultimately, the balance between these two perspectives will depend on how well the judiciary can strike a balance between protecting the Constitution and respecting the democratic process.
Conclusion:
In conclusion, judicial review is an essential feature of the Indian Constitution that ensures that the laws passed by the legislature and the actions of the executive are in line with the Constitution. The courts have the power to strike down any law that is in violation of the Constitution, and they can also issue writs to protect the fundamental rights of the citizens. While the scope of judicial review is quite broad, there are certain limitations to this power, which are necessary to maintain a balance between the three organs of the state – the legislature, the executive, and the judiciary. Judicial review is a crucial aspect of the Indian Constitution that allows the judiciary to act as a check on the legislative and executive branches of the government. It ensures that the government functions within the limits set by the Constitution and that the rights of the citizens are protected. While the scope of judicial review is quite broad, there are certain limitations to this power, which are necessary to maintain a balance between the three organs of the state – the legislature, the executive, and the judiciary. Judicial review has played a significant role in shaping the Indian legal system and protecting the rights of its citizens.
Frequently Asked Questions (FAQs) on Judicial Review:
Q: What is judicial review in India? A: Judicial review is the power of the judiciary to review and potentially invalidate laws or executive actions that are deemed unconstitutional or beyond the powers granted to the government by the Constitution.
Q: Why is judicial review important in India? A: Judicial review is important in India because it acts as a check on the legislative and executive branches of the government, ensuring that they do not exceed their constitutional limits and infringe upon the fundamental rights of citizens.
Q: What are some landmark cases related to judicial review in India? A: Some landmark cases related to judicial review in India include the Kesavananda Bharati case, the Indira Gandhi v. Raj Narain case, and the Minerva Mills v. Union of India case.
Q: Can the judiciary strike down any law or executive action it deems unconstitutional? A: No, the judiciary can only strike down laws or executive actions that are found to be unconstitutional according to the provisions of the Constitution.
Q: Is judicial review an exclusively Indian concept? A: No, judicial review is a concept that is practiced in many countries around the world, including the United States, Canada, and Australia.
Q: What is judicial review in the context of the Indian Constitution? A: Judicial review is a process where the judiciary ensures that laws passed by the legislature and actions of the executive are in line with the Constitution. It’s a key function of the judiciary, acting as a guardian of the Constitution and protecting citizens’ rights​​.
Q: What are the types of writs issued by courts in India under judicial review? A: The Indian Constitution provides for five types of writs: Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto, each serving a specific legal purpose to protect citizens’ rights and maintain judicial oversight​​.
Q: How did judicial review originate and develop in India? A: The concept originated in the United States and was adapted for India, borrowing from the US Constitution. In India, it was first established in the case of Shankari Prasad v. Union of India (1951) and further defined in Kesavananda Bharati v. State of Kerala (1973)​​.
Q: What are the limitations of judicial review in India? A: Judicial review in India is subject to limitations, such as immunities for the President, Governors, and Judges of higher courts. Additionally, courts cannot interfere with executive policy decisions unless they violate the Constitution​​.
Q: Why is judicial review significant in the Indian legal system? A: Judicial review is crucial as it allows the judiciary to check the legislative and executive branches, ensuring government actions stay within constitutional limits and protecting citizens’ rights. It upholds the rule of law and maintains a balance of power among government branches​​.
Q: What is the process of judicial review in India? A: The process involves initiation (filing a petition), preliminary scrutiny (admissibility check), hearings (examining case merits), judgment (court decision), and implementation (government compliance with the court’s decision)​​.
Also Read:
Writ Petition – Types, Important Judgements, How and When to File | Lawyer for Writ Petition
Fundamental Rights and Duties in Indian Constitution: Explained in Detail
In-Depth Analysis of Article 14 of the Indian Constitution
