The power of Judiciary to review and determine validity of a law or an order may be described as the power of "Judicial Review."
It means that the constitution is the Supreme law of the land and any law in consistent there with is void. The term refers to "the power of a court to inquire whether a law executive order or other official action conflicts with the written constitution and if the court concludes that it does, to declare it unconstitutional and void."
Judicial Review has two prime functions:
(1) Legitimizing government action; and (2) to protect the constitution against any undue encroachment by the government.
The most distinctive feature of the work of United States Supreme Court is its power of judicial review. As guardian of the constitution, the Supreme Court has to review the laws and executive orders to ensure that they do not violate the constitution of the country and the valid laws passed by the congress.
The power of judicial review was first acquired by the Supreme Court in Marbury vs. Madison case. 1803.
The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary enactment invalid. On the contrary every court is constrained to enforce every provision" of the law of parliament.
Under the constitution of India parliament is not Supreme. Its powers are limited in the two ways. First, there is the division of powers between the union and the states. Parliament is competent to pass laws only with respect to those subjects which are guaranteed to the citizens against every form of legislative encroachment.
Being the guardian Fundamental Rights and the arbiter of-constitutional conflicts between the union and the states with respect to the division of powers between them, the Supreme Court stands in a unique position where from it is competent to exercise the power of reviewing legislative enactments both of parliament and the state legislatures.
This is what makes the court a powerful instrument of judicial review under the constitution. As Dr. M.P. Jain has rightly observed: "The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution."
In the framework of a constitution which guarantees individual Fundamental Rights, divides power between the union and the states and clearly defines and delimits the powers and functions of every organ of the stat^ including the parliament, judiciary plays a very important role under their powers of judicial review.
The power of judicial review of legislation is given to the judiciary both by the political theory and text of the constitution. There are several specific provisions in the Indian constitution, judicial review of legislation such as Act 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.
Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly. Article 13 specifically declares that any law which contravenes any of the provision of the part of Fundamental Rights shall be void. Even our Supreme Court has observed, even without the specific provisions in Article 13.
The court would have the power to declare any enactment which transgresses a Fundamental Right as invalid. The Supreme and high courts are constituted the protector and guarantor of Fundamental Rights under Articles 32 and 226. Articles 251 and 254 say that in case of in consistent if between union and state laws, the state law shall be void.
The basic function of the courts is to adjudicate disputed between individuals and the state, between the states and the union and while so adjudicating, the courts may be required to interpret the provisions of the constitution and the laws, and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land. There is no appeal against the judgement of the Supreme Court.
In Shankari Prasad vs. Union of India (1951) the first Amendment Act of 1951 was challenged before the Supreme Court on the ground that the said Act abridged the right to property and that it could not be done as there was a restriction on the amendment of Fundamental Rights under Article 13 (2).
The Supreme Court rejected the contention and unanimously held. "The terms of Article 368 are perfectly general and empower parliament to amend the constitution without any exception whatever.
In the context of Article 13 law must be taken to mean rules or regulations made in exercise of ordinary legislative power and amendments to the constitution made in exercise of constituent power, with the result that Article 13 (2) does not affect amendments made under Article 368."
In Sajan Singh's case (1964), the corupetence of parliament to enact 17th amendment was challenged before the constitution. Bench comprising of five judges on the ground that it violated the Fundamental Rights under Article 31 (A).
Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when article 368 confers on parliament the right to amend the constitution the power in question can be exercised over all the provisions of the constitution, it would be unreason about to hold that the word law' in article 13 (2) takes in amendment Acts passed under article 368.
Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and could not be struck down by the application of article 13 (2).
The historic case of Golak Nath vs. The state of Punjab (1967) was heard by a special bench of 11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged.
The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed.
(1) Article 368 only provides a procedure to be followed regarding amendment of the constitution.
(2) Article 368 does not contain the actual power to amend the constitution.
(3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list.
(4) The expression 'law' as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power. ,
(5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) of it takes away or abridges the rights conferred by part III of the constitution.
(6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution.
(7) Parliament will have no power from the days of the decision to amend any of the provisions of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined there in.
The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of law to change or destroy the entire fabric of the constitution through the instrumentality of parliament's amending power.
In Minerva Mills case (1980) the Supreme Court by A majority decision has trunk down section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24, 19 and 31 of part III of the constitution, on the ground that part III and part IV of the constitution are equally important and absolute primacy of one over the other is not permissible as that would disturb the harmony of the constitution.
The Supreme Court was convinced that anything that destroys the balance between the two part will ipsoTacto destroy an essential element of the basic structure of our constitution.
Judicial Review of Legislative Enactment and ordinances:
One of the first major case A.K. Gopalan Vs. State of Madras. 1951 that came up before the Supreme Court in which the preventive Intention Act, 1950 was challenged as invalid.
The court by a unanimous decision declared section 14 of the Act invalid and thus manifested its competence to declare void any parliamentary enactment repugnant to the provisions of the constitution.
In Champakan Dorairajan's case, the Supreme Court held that the order of the state government fixing proportionate scales, for different communities for admission to medical colleges was unconstitutional.
The presidential order de-recognising privy purses was also challenged in the Supreme Court which declared the order as unconstitutional and void. Between 1950-1980 parliament passed as many as 1977 Acts and out of them, the Supreme Court invalidate laws passed on 22 occasions.
Principles of Judicial Review:
Justice VS Deshpande in his book propounded a thesis that Judicial Review of legislation in India should rest merely on Article 245 (1) and not on Article 13. According to him, Article 245 (1) interpreted broadly would ensure the supremacy of the constitution over all kinds of laws.
Thus, a law to be valid must conform with the constitutional forms. The grave responsibility of deciding upon the validity of laws, is laid up on the judges of the Supreme Court. If a statue isn't within the scope of legislative authority or it offends some constitutional restriction or prohibition, that statue is unconstitutional and hence invalid.
The Statue is not held unconstitutional by the court in a light vein. Both the 'felt necessities of the time' and 'constitutional fundamentals' are balanced by the court. Accordingly, the Supreme Court has evolved certain canons, making and norms. H.M. Leervai has enumerated following rules in this regard.
(1) There is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and the on us to prove that it is unconstitutional lies upon the person who challenges it.
(2) Where the validity of a statue is questioned and there are two interpretations, one of which would make the law valid, and the other void, the former must be preferred and the validity of the law upheld.
(3) The court will not decide constitutional questions of a case is capable of being decided on other grounds.
(4) The court will not decide a larger constitutional question than is required by the case before it.
(5) The court will not hear an objection as to the constitutionality of a law by a person whose rights are not affected by it.
(6) Ordinarily, courts should not pronounce on the validity of an Act or part of an Act, which has not been brought into force, because till then the question of validity would be merely academic.
Indian judiciary has been able to overcome the restrictions that were put on it by the 42nd amendment, with the help of the 43rd and 44th amendments.
Now the redeeming quality of Indian judiciary is that no future governments could did its wings or dilute its right of Judicial Review. In fact, now the 'Judicial Review' is considered to be the basic feature of out constitution.