Open Access Research Article
JUDICIAL REVIEW: CONSTITUTINAL GROWTH IN INDIA IN JUDICIAL REVIEW AND IT’S IMPACT BY: RUPALI VIJAY KUMBHAR
Published Paper
Article Details
JUDICIAL REVIEW:
CONSTITUTINAL GROWTH IN INDIA IN JUDICIAL REVIEW
AND IT’S IMPACT
AUTHORED BY:
RUPALI VIJAY KUMBHAR
ABSTRACT
This paper explores the profound impact of judicial
review on the constitutional growth of India. Moving beyond a static
document, India's journey
of constitutional growth under judicial review has been transformative,
shaping the nation's legal landscape
and societal dynamics. This paper delves into the evolution of judicial review in India, tracing its origins,
milestones, and impact on governance,
rights, and democracy. From the seminal case of Kesavananda Bharati
to recent judgments
on fundamental rights and governmental powers, the judiciary has played a pivotal role in upholding
the Constitution's supremacy and ensuring accountability. The paper examines
the mechanisms of judicial review,
including writ jurisdiction, PILs (Public Interest
Litigations), and judicial
activism, highlighting their effectiveness and limitations. Furthermore, it discusses the
socio-political implications of judicial review, such as its role in safeguarding minority rights, promoting
social justice, and addressing institutional deficiencies. Through case
studies and comparative analyses, the paper
elucidates how judicial review has fostered a culture of constitutionalism, balancing the powers of different
branches of government and reinforcing the rule
of law. However, challenges persist, including judicial overreach, delays in justice delivery, and tensions between
the judiciary and executive. The paper concludes
by proposing strategies for enhancing the efficacy of judicial review, including
reforms in judicial appointments, procedural
reforms, and public education on constitutional principles. Ultimately, the evolution
of judicial review in India reflects the nation's
commitment to democracy, pluralism, and constitutional
values, while continually adapting to the evolving needs of its diverse
populace.
INTRODUCTION
The
Constitution of India, adopted in 1950, laid the foundation for a vibrant democracy and a rule of law
society. One of the key features embedded within its framework is the provision
for judicial review,
empowering the judiciary to interpret the Constitution and ensure the supremacy of its principles. This paper explores the trajectory of constitutional growth in
India under the mechanism of judicial
review and assesses its profound impact on the nation's legal, social, and political landscape. India's judiciary,
particularly the Supreme Court, has
played a pivotal role in shaping the course of the nation's governance and
upholding the fundamental rights enshrined in the Constitution. The principle of judicial review, though not
explicitly mentioned in the Constitution, has been judiciously exercised by the courts
to scrutinize legislative and executive actions,
ensuring their conformity with constitutional provisions.
Despite these challenges, the institution of judicial review remains indispensable to India's democratic fabric, serving as a bulwark
against arbitrary state action and safeguarding the rights
and liberties of its citizens. As India continues
to grapple with complex socio-political realities and emerging legal paradigms, the role of judicial review will remain central to ensuring constitutional governance and fostering
a more just and equitable
society.
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.
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. In India, the judiciary is the guardian
of the Indian Constitution, the democratic atmosphere and individual’s 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 to 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.
·
With the power to the judiciary of judicial review
there are some limitations as well as on the judiciary upon exercising the
power of judicial review as when exercising its power if it tries to interfere
in their work, it can be changed into Judicial overreach.
·
The power of judicial review can only be exercised by
the upper courts like the Supreme Court and High Court and the lower courts
don’t have any of this power.
·
The power of judicial review limits the functioning of
the government as it is only used for finding the procedure for reaching a decision.
·
When the court exercises the power of judicial review then
the opinion of the judges in any case becomes the standard for ruling other cases.
·
The repeated interventions of the court can diminish
the faith of the people in the integrity and efficiency of the government.
·
The judiciary’s power of judicial review cannot interfere
with political questions unless necessary the judgments of the court can be
influenced by personal and selfish motives, hence it can cause harm to the public
at large.
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.
1. REVIEW OF
JUDICIAL DECISIONS:
Reviewing or
examining a court's decision basically refers to examining it in such a way to determine whether
the Supreme Court's decision was correct or
not in simple terms, it also refers to the court's authority to determine the constitutionality of the measures
taken by state, federal legislatures and courts.
2. REVIEW OF
LEGISLATIVE ACTIONS:
Article 13 of the Indian constitution, talks about the judicial review
of all the enacted laws, and such an authority may promulgate
unconstitutional laws, regulations, statutes, ordinances, rules, and ordinances, which granted to the High Courts and Supreme Court of India All those actions which violate the Fundamental Rights or other important provisions of the constitution, are declared as void
and it is declared to be unlawful. We can trace the marks of judicial
review of the legislative actions
in the landmark cases like; I. C. Golaknath and Others. v. State of Punjab and Another 1967.
Kesavananda Bharti and Others. v. State of Kerala and Another, 1973.
3. REVIEW OF ADMINISTRATIVE ACTIONS:
The actions
carried out, by authorities under the administrative law are understood as administrative actions It is
a lawful action concerned with the conduct
of the public administrative authorities. The constitutionality of the administrative action is verified
by a test introduced by Lord Diplock,
which was in the case of Council of Civil Services
Union v. Minister
of Civil Services
1984 The tests include:
·
Illegality:
The acts and verdicts
of the decision makers can be declared as illegal if they do not follow
the law, or if they act beyond
their stipulated powers.
·
Irrationality:
The courts can also interfere for quashing any decision if they think
that it is arbitrary, henceforth, making the move of the decision makers
as "unreasonable" or "perverse"
·
Procedural Impropriety:
The onus is on the authority to act impartially before taking and
deciding any matter, since, any
public body must not act unethically since, it amounts to the abuse of power.
·
There is no direct
and express provision
in the constitution empowering the courts to invalidate laws, but
the constitution has imposed definite
limitations upon each of the organs, the transgression of which would make the law void.
·
The
court is entrusted with the task of deciding whether any of the consti- tutional
limitations has been transgressed or not.
·
Some provisions in the constitution supporting the process
of judicial review
are:
o
Article 372 (1) establishes the judicial
review of the pre-constitution legislation.
o Article 13 declares that any law which contravenes any of the provisions of the part of Fundamental Rights shall be void.
o Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
o Article 251 and 254 states that in case of inconsistency between
union and state laws, the state law shall be void.
o Article 246 (3) ensures the state legislature’s exclusive
powers on matters
pertaining to the State List.
o Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.
o Articles 131-136 entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state, between
the states and the union; but the court may be required to interpret the provisions of the
constitution and the interpretation given by
the Supreme Court becomes the law honored by all courts of the land.
o Article 137 gives
a special power to the SC to review any judgment pronounced or order made by it. An order passed
in a criminal case can be reviewed
and set aside only if there
are errors apparent
on the record.
Judicial
review plays a significant role as it declares any actions of legislature,
executive, and administrative actions as unconstitutional if it denies the
rights to the people and is in contravention of the constitution. In India, we follow
a parliamentary system where the people of the country are also involved, so
the citizens elect their representative who in turn is answerable to the
citizens for their actions, and all those officers who hold public office and
have to work within the ambit of constitutional provisions. The concept of
judicial review is developed because of the rule of law and the separation of
powers between the three organs of the government. Judicial review evolved for
three reasons, first to maintain fairness in the actions of the government,
second to safeguard the fundamental rights guaranteed to citizens under part III
of the Indian constitution, and third to maintain legislative competency
between the center and the state. Different articles in the constitution cover the
concept and give power to the judiciary of judicial review.
ARTICLE 13
This
article confers the power of judicial review
and it states that all those laws that are inconsistent with the
fundamental rights under part III shall be declared
as void. This means
all the laws,
rules regulations, and ordinances issued
and any amendments in the constitution by the center or state can be
challenged if it violates any
fundamental rights or violates any part of the basic structure of the constitution. So, by this provision of the constitution, the Supreme Court can strike
down and declare
it unconstitutional.
ARTICLE 21
This
article states that “no person shall be deprived of his life or personal
liberty except by procedure established by law” In the Maneka Gandhi
case the Right to travel abroad was
included under personal liberty under this article, so by this, there was an expansion in the concept
of personal liberty
and it was also said any type of government restraint on personal liberty
should be Just,
fair and non-arbitrary and reasonableness
mentioned under Article 14, 19 and 21 of the
constitution.
ARTICLE 32
This article is also called Right to
Constitutional Remedies. As per this, any person can move to the Supreme
Court for the enforcement of the Fundamental Rights conferred to the citizen
by the constitution means any person whose fundamental rights
have been violated
can directly approach
the Supreme Court and High Court to enforce their
fundamental rights. The Supreme Court can issue orders or writs like Habeas Corpus,
Mandamus, Certiorari, Prohibition, and quo warranto
to enforce fundamental rights. These remedies
are provided to the citizens
to reinforce their infringed rights.
ARTICLE 226 & 227
These articles confer the power of
judicial review to all the High court’s So as per Article
226 the High courts can issue writs for enforcing
the fundamental rights as well as for any other purposes. Article
226 is the discretionary power of the High Court means the court must listen to the petitioner if they have approached them and had no alternative remedy. Whereas as per Article 227 of the Constitution,
High Courts have the superintendence power over subordinate courts and tribunals. (Rana, 2022)
ARTICLE 131 – 135
This article empowers the power of
the Supreme Court to hear disputes between the center and states and conflicts between
two states.
ARTICLE 136
The
first-ever Public Interest
Litigation was filed in the case Hussainara Khatoon v. State of Bihar also
through this case Right to Speedy Trial came
and from that time it has evolved in India in issues of Consumer
protection, preventing environmental
destruction and pollution and for disadvantaged and vulnerable groups of the society.
ARTICLE 137
This
article provides an important power to the Supreme Court
to review any judgment or order passed
by them, but a criminal
case will only be reviewed
if the error is on the face of the record.
ARTICLE141
As per this, the Decisions of the
Supreme Court are binding on all the courts in India.
ARTICLE 143
In this president can ask for the
advice of the Supreme Court if the question is of public
importance.
9TH SCHEDULE OF INDIAN CONSTITUTION
As per Article 31-B, all acts that
come under the ninth schedule of the Indian constitution cannot be challenged on grounds that it is in contravention to the fundamental rights guaranteed
under the constitution but this was later changed in the IR Coelho case where it was
held that laws under 9th scheduled
are open to challenge if they are in contradiction to the fundamental
rights or Basic structure of the constitution.
CASE LAWS
1.
Golaknath v. State of Punjab (1967)[8]:- 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.
2.
Kesavananda Bharati v. State of
Kerala (1973)[9]:- 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.
3.
Maneka Gandhi v. Union of India
(1978)[10]:- In this
case, the Supreme Court held that the
night 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.
4.
Vishaka v. State of Rajasthan (1997)[11]:- 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.
5. LR. Coelho v State of Tamil Nadu and others (2007)[12]:- 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 Article 14, 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.
CONCLUSION
India's
constitutional journey has been intricately intertwined with the evolution of judicial review. This
mechanism, though not explicitly enshrined, has
served as a cornerstone for the nation's legal and social development. From interpreting fundamental rights to ensuring governmental accountability, judicial review
has fostered a dynamic Constitution that adapts to the needs of a growing democracy.
Landmark cases
like Kesavananda Bharati established
the power of judicial review to
safeguard the Constitution's core principles. Mechanisms like writs and PILs have empowered citizens to
seek justice and hold institutions accountable.
The impact extends beyond legalities, shaping social progress by protecting minority rights and promoting social
justice.
However,
challenges remain. Judicial overreach and delays in justice delivery
necessitate ongoing reforms.
Nevertheless, India's commitment to judicial
review reflects its dedication to a vibrant
democracy governed by the rule of
law. By continuously refining this vital tool, India can ensure a future where its Constitution remains a living
document, responsive to the aspirations of its
people.
[1]
https://www.centurylawfirm.in/blog/judicial-review-in-
india/#:~:text=Judicial%20review%20is%20a%20crucial,of%20the%20citizens
[3]
https://theamikusqriae.com/judicial-review-and-its-impact-on-constitutional-interpretation/
[4]
https://www.centurylawfirm.in/blog/judicial-review-in-
india/#:~:text=Judicial%20review%20is%20a%20crucial,of%20the%20citizens%20are%20prot
ected
[7]
https://theamikusqriae.com/judicial-review-and-its-impact-on-constitutional-interpretation/
[8] 1967
AIR 1643; 1967 SCR (2) 762
[9]
AIR 1973 SC 1461, 1973
4 SCC 225
[10] AIR
1978 SC 597
[11]
AIR 1997 SC 3011
[12]
AIR 2007 SC 861
Article Information
JUDICIAL REVIEW: CONSTITUTINAL GROWTH IN INDIA IN JUDICIAL REVIEW AND IT’S IMPACT BY: RUPALI VIJAY KUMBHAR
Authors: RUPALI VIJAY KUMBHAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/27
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.