Abstract:
The doctrine of separation of power that was given by Baron de Montesquieu in 1748 is still prevalent in democracies around the world. To uphold the idea of the Constitution and the essence of constitutionalism, it is crucial to have this ‘doctrine of functional specialization’[1]. In order to have a proper mechanism of checks and balances instigated in the system, each organ, legislature, executive, and judiciary have to work harmoniously. One such means of checks and balances in this horizontal division of power is with the judiciary through Judicial Review. Hence, this article discusses the meaning and scope of Judicial review and the provisions where this power is vested with the Judiciary. Further, it highlights different types of judicial review and how this helps ensure that legislature and executive do not become arbitrary and are held accountable for their actions. Later it explains the development of Judicial Review in India through precedents and also emphasises the importance of it in our Indian Legal System. Therefore, this article aims to establish the concept and significance of Judicial Review in the Indian Legal System by delving deeper into its dimensions.
Keywords:
Judicial Review, Judiciary, Separation of Power, Constitution, Kesavananda Bharti Case
Introduction:
“There is no greater tyranny than that which is perpetuated under the shield of law and in the name of justice.”[2] A famous quote by Montesquieu highlights that the biggest tyranny is that which is committed under the justification of law, and with the false pretence of justice. This can only be curbed if there is separation of power with a proper system of checks and balances by all the organs of the government. Legislature, executive, and judiciary are the three pillars of any democracy, and it is of utmost importance that all three work independently and fearlessly. Out of these, the power vested with the judiciary to hold the other two organs accountable for their actions is by the tool of Judicial review.
Montesquieu describes that it is of utmost importance to have a moderating authority that analyses the actions of the legislature and the executive, and decides whether the action is an outcome of due procedure or just a means to fulfill their interests.
On that note, Judicial Review is the power of a court to review the actions of other branches or levels of government and to invalidate the legislative and executive actions that are unconstitutional[3]. It is a tool used by the judiciary to ensure that the ideals of the constitution are not infringed by law-making or law-executing authorities to fulfill their personal interests. Judicial Review is a measure by which the judiciary keeps a check on the other two organs and sees that they act per their functions.
The provisions present in the Indian Constitution that ensure judicial review are Article 13 (1), and Article 13(2), Article 32, and Article 226.
Article 13(1) specifies that any laws in the country in contravention of Part III shall be void. Article 13(2) highlights that the state shall not make any law which takes away or abridges the rights conferred to the citizens under Part III of the constitution, and such law shall be declared void. Article 32 vests the Supreme Court with the power to conduct judicial review, and Article 226 gives the High Courts this power to conduct judicial review. These provisions analyze the laws passed by the state and check whether those are in sync with the constitutional values. These provisions are the explicit examples of the presence of judicial review in India. Fundamental Rights form the basic essence, and giving the judicial review for the same shows the strong role of the judiciary in ensuring that no one organ supersedes its limits, and makes arbitrary legislations, with no accountability[4].
Scope of Judicial Review:
When legislature and executive formulate such laws that are not in accordance with the Constitutional ideals and values and infringe those, resulting in detriment to the very concept of law, the last resort present in such a situation is the judiciary. The judiciary, through its power to conduct judicial review, helps in striking down those provisions that:
- Infringes any provisions of Fundamental Rights present in Part III of the constitution.
- Those made by such an authority that did not have valid jurisdiction.
- Those which are darn against the constitutional provisions.
Under these circumstances, judicial review can be invoked by the judiciary, where the provision in question will be scrutinized on several levels to ensure that it does not oppose constitutionalism in society. Consecutively, judicial review is conducted by the judge to assess the lawfulness of any law, decision, legislation, etc. passed by the public body.
Here, the concept of law can be understood in two ways, ‘Procedure established by law’ sees whether or not proper procedures have been followed to enact a particular law, whereas ‘due process of law’ ensures that the law does not infringe on individual life and liberty and that such a law is just and fair. Both of these concepts of law become important when a judicial review is conducted, and it is based on these, that the validity of any law is tested.
Types of Judicial Review:
Based on the nature and scope of the review, this can be categorized as the following:
- Constitutional Judicial Review: This refers to the review of the laws regarding the changes made in the Constitution. The constitution of any country is the speaking document that shows what the rights guaranteed to its citizens are and what the ideal of that country is. Hence, it is essential to review those provisions that might be contrary or detrimental to the rights of the citizen. With the help of this review, the judiciary ensures that constitutional values are upheld in any circumstances.
- Statutory Judicial Review: Here the judiciary uses its power to conduct a judicial review to analyze and uphold the validity of different specific statutes passed by the legislature and/or executive. The sole purpose here with the judiciary is again to make sure that any law is not contrary to the values of the constitution, and it does not detriment the life and liberty of any individual.
- Administrative Judicial Review: It is not just the law that is made, but also the agency making it, and the procedure they follow, constitute an important part of the law-making process. Each organ is vested with appropriate and well-designated power; hence it is important that the work is as per the power conferred to them. By way of judicial review, the Judiciary also ensures that each organ works within its limits and does not breach those limits.
- Procedural Judicial Review: Here, the judiciary analyses the due process. Whether the concerned law was passed through the due process which is fair, just, and reasonable. Not just the law, but the process too has to be analyzed and needs to be just, fair, and reasonable. This validates the authenticity and authority of the law. If a proper process is followed to make law, then the law becomes more acceptable and holds water throughout.
- Substantive Judicial Review: By this, the judiciary goes deeper into analyzing the concept of law, by making sure that none of the provisions infringe on the rights of the individual. Here the courts determine on the levels, whether the law is reasonable, at par with the fundamental rights given to the citizens, and enforceable in practice or not. After analyzing this the courts also see whether the concerned law ultimately is in the direction of achieving justice or not.
It is to be noted that laws are made in society with the concepts of justice, equity, and good conscience in our minds. It is these guiding lamps that guide our ways to identify what all laws are correct, and what all are in contravention of those.
Development of Judicial Review in India:
Judicial Review have always been a powerful tool that has struck down many provisions made by the legislature on the grounds of it being unconstitutional, unfair, unjust, unreasonable, and so on. This is obviously, not so much liked by the law-making authorities and hence several attempts have been made to limit the Judiciary’s power to conduct judicial review. The following shows the development of judicial review in India, and adopting the unwavering authority of this tool.
The 1st Amendment Act 1951[5]:
The very first amendment of our constitution was in 1951, and it was to limit the judicial review power of the Judiciary. This amendment was introduced by the then-government of India. The right to property at that time was a fundamental right, however, the government needed large land areas to carry out development programs. Now upon requesting the Kings, and the princely states to give them their lands, they used this fundamental right to property to shield their property. Hence, to curb this problem, this first amendment act was made, that was introduced by way of Article 31-B. This article mentions that any act introduced by the centre or the state, if they are kept under the 9th Schedule of the Constitution, then they is exempted from judicial scrutiny. Hence protecting certain provisions from judicial review. This in itself appeared to be a really draconian amendment giving the legislature the power to make any law and place those under the 9th Schedule, thus protecting it from judicial review.
Kesavananda Bharti vs. State of Kerala 1973[6]:
This is a landmark judgment, where the court propounded the ‘Basic Structure’ Doctrine in India. The court here limited the power of the legislature to the extent, that they can only amend the constitution as long as they do not surpass the basic structure of the Constitution. Now Basic Structure was not defined by the Court anywhere, however said that it was with the Supreme Court to decide what constitutes as a basic structure, and what does not. By referring to this First Amendment act, the court mentioned that the legislature can continue to put certain acts in the 9th Schedule only with the condition that those acts do not violate the basic structure of the Constitution. This was by far a progressive step in ensuring that the legislature does not misuse its power to make laws, and there is some restriction on this power so that they do not work arbitrarily.
Waman Rao vs. Union of India, 1981[7]:
This judgment analyses the validity of Article 31-B, along with other things, and goes through the provisions thoroughly. The constitutional validity of Article 31-B was raised in this case, regarding a provision that was introduced in the state of emergency, when Articles 14 and 19 were restricted, and that provision was further placed under the 9th Schedule, this action was challenged before the court. The Supreme Court held that since before the Kesavananda Bharti Case, we did not have the basic structure doctrine all the laws hence included in the 9th Schedule will continue to be in practice, however, laws included in the 9th Schedule after the Kesavananda Bharti case should have to be in accordance with the basic structure doctrine, and only then could that law be valid. Here, even though the court upheld the validity of Article 31-B, still they mentioned that those laws have to be at par with the basic structure doctrine.
R. Coelho vs. State of Tamil Nadu, 2007[8]:
This judgment reiterated the Waman Rao’s judgment by emphasising that those acts which were added in the 9th schedule after 24th April 1973 are not shielded from judicial review just by the virtue of being part of 9th Schedule. This judgment highlighted the importance of Judicial Review and held that no matter what, any law if added in the 9th Schedule after the pronouncement of Kesavananda Bharti Case, that is after 24th April 1973, all of those laws shall be open to judicial scrutiny if they abridge the fundamental rights. Hence, the court in this case have widely discussed the importance of Judicial Review in our legal system and have upheld the constitutional values.
Importance of Judicial Review:
- Maintaining the Constitutional Authority:
In India, the Constitution is the supreme law, and we follow the authority of the Constitution. The fundamental rights guaranteed to the citizens puts the state under a duty to fulfill those rights. The state thus, could make certain laws which infringe those rights of the individuals to lower their duties. But judicial review thus becomes very important in that regard to upheld the validity of the constitution in ensuring that legislature by no means violates any fundamental rights guaranteed to the citizens.
- Checks and Balances:
Our system of governance is based on a checks and balances mechanism, where each organ checks the action of the other to ensure that all work as per the constitution, and no one organ becomes more powerful than the other. Thus, to have a proper mechanism of checks and balances, the tool that the judiciary use is this power of Judicial Review.
- Protecting the minority rights:
By reviewing the laws passed by the legislature, the judiciary also makes sure that the rights of minority are not violated. It is widely known, that judiciary is the last resort for the people to upheld their rights, hence on this very principle, judiciary uses its power to conduct judicial review on such laws that may appear to be contrary, or violative of the rights of minority segment of our country.
- Ensuring transparency and accountability:
Since, judicial review is not only on substantial matter, but also on the procedural and administrative matters, it makes sure that from which authority is the law emanating from, whether that authority is valid or not, and what are the costs and benefits of the said law. Through Judicial Review, judiciary tries to establish a transparent law-making procedure, and also makes the concerned authority accountable for their actions.
- Ensuring Independence of Judiciary:
The most important feature of this judicial review is that it makes the judiciary independent. Independence of Judiciary is very important in a democracy. It ensures that the law-making authority does not become powerful so as to fulfill their personal interests, neglecting individual rights.
Conclusion:
Therefore, by analysing all the above discussion it highlights the importance of judicial review. The separation of power shall only be practiced if each organ has a check on other organs. Judiciary can ensure this check through the tool of judicial review. Independence of judiciary is of paramount importance and this helps in ensuring the validity of any law made by the legislature.
[1] Bruce Ackerman, The New Separation of Powers, 113 Harv. L.
Rev. 633, 688 (2000), https://doi.org/10.2307/1342286.
[2] Charles Montesquieu, The Spirit of Laws (1955).
[3] Henry Campbell Black, Law Dictionary (Black’s Law D
ictionary) (5th ed. 1981).
[4] Constitution of India, 1950.
[5] 1st Amendment Act, Indian Constitution, 1951.
[6] Kesavananda Bharti & Ors. vs. State of Kerala & Anr.,
U.S., Apr. 24, 1973, AIR 1973 SC 1461, (India).
[7] Waman Rao vs. Union of India, U.S., Nov. 13, 1980, (1
981)2SCC362, (India).
[8] I.R. Coelho vs. State of Tamil Nadu, U.S., Jan. 11, 200
7, 1999) 7 SCC 580, (India).
This article has been written by Lakshita Mahajan, currently in Semester 3, 2nd Year in BA.LLB(Hons. ) at Institute of Law, Nirma University.
