Power of Judicial Review: A Basic Feature of Indian Constitution

KEY TAKEAWAYS

• Emperor v. Burah was the first case which examined judicial review in India.
• Landmark case of Kesavananda Bharati v. State of Kerela supports the statement that judicial review is a basic feature of the Indian Constitution.
• Judicial review of Ordinances and Money Bill.
• Constitutional Amendment and Administrative Actions are the two grounds for Judicial Review.
• Shankari Prasad V. Union of India, Sajjan Singh V. State of Rajasthan, I.C. Golak Nath &Ors V. State of Punjab, Indira Nehru Gandhi V. Raj Narain, Minerva Mills V. Union of India, and I.R. Coelho V. State of Tamil Nadu are significant cases that aid in a better understanding of judicial review.

INTRODUCTON

The notion of judicial review is prevalent in many nations with written constitutions. It indicates that the constitution is the highest law of the state, and that any law that contradicts it is null and invalid.The literal meaning of judicial review is the reconsideration of a degree or sentence by a lower court, but the notion has evolved significantly through time, and the literal meaning is no longer applicable. The ability to judicially review any judgement is a unique function granted to a higher court for the purpose of reviewing the use of power by public bodies whether constitutional, quasi-judicial, or governmental. It may only be used if a person who has been wronged by a judgement brings it to the attention of the court.The literal meaning of judicial review is the reconsideration of a degree or sentence by a lower court, but the notion has evolved significantly through time, and the literal meaning is no longer applicable. The ability to judicially review any judgement is a unique function granted to a higher court for the purpose of reviewing the use of power by public bodies, whether constitutional, quasi-judicial, or governmental. It may only be used if a person who has been wronged by a judgement brings it to the attention of the court.It is general known that while performing executive tasks, public officials make a variety of judgments for which they should be given enough freedom to exercise adequate discretion. It is important to remember that, for the most part, only the decision-making process is open to judicial scrutiny.The provision of judicial review was borrowed from the United States Constitution. However, it took several years to correct this flaw in our constitution. In this sense, the judiciary has played a significant role.

BACKGROUND

To provide certain individual and group rights after independence, the Indian Constitution needed to include precise provisions for ‘judicial review.’ Dr. B.R. Ambedkar, who chaired the Indian Constituent Assembly's Draft Committee, referred to judicial review as the "Heart of the Constitution."

The issue of Judicial Review in India was first examined in the case of Emperor v. Burah, in which the Calcutta High Court and the Privy Council agreed that Indian courts possessed Judicial Review jurisdiction subject to specific constraints.

The purpose of judicial review under the Indian Constitution is to defend and provide people's liberty and freedom. Some Indian philosophers have pointed out that the scope of judicial review in India is quite limited, and that Indian courts do not have the same broad authority as American courts. The 'Due Process' provision gives American courts a broader reach, but the scope of Judicial Review in India is restricted.

Common law theories such as ‘proportionality’,‘legitimate expectation’, ‘reasonableness’ and ‘natural justice principles’ have directly influenced court assessment of administrative conduct. Therefore, to defend and enforce the basic rights provided in Part III of the Constitution, the Supreme Court of India and several High Courts were granted the jurisdiction to adjudicate on the legality of legislative and administrative measures.Article 246 of the Constitution read with the 7th schedule, envisions a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures and thus the higher courts have the power to adjudicate on questions of legislative competence particularly in Centre-State relations.

The three-dimensional scope of judicial review in Indian courts has emerged: first, to ensure fairness in administrative action, second, to preserve guaranteed constitutional basic rights and third, to decide on matters of legislative competence between the centre and the states.

Article 32 of the Constitution gives the Supreme Court of India the authority to enforce and apply these fundamental rights. It offers citizens the right to go directly to the Supreme Court and High Courts to seek remedies when their basic rights are violated. The elements of Judicial Review were judicially inserted into the Constitution in order to maintain the balance of federalism, defend individuals, fundamental rights and provide a helpful tool for equality, liberty, and freedom.

JUDICIAL REVIEW AS A PART OF THE BASIC STRUCTURE OF THE CONSTITUTION

The Supreme Court of India promulgated the doctrine of basic structure in the landmark case of Kesavananda Bharativ. State of Kerela which stated that the legislature has the power to amend the Constitution but such amendments must not change the Constitution's basic structure. The Constitutional bench made no attempt to define the basic structure of the Constitution.S.M. Sikri, C.J mentioned five basic features:

i. Supremacy of the Constitution.

ii. Republican and democratic form of Government.

iii. Secular character of the Constitution.

iv. Separation of powers between the legislature, the executive and the judiciary.

v. Federal character of the Constitution.

These fundamental characteristics, according to Justice Sikri are plainly recognisable not just from the Preamble but also from the entire design of the Constitution. He went on to say that the system was established on the principles of individual dignity and freedom which he said could not be changed. In that occasion, it was also pointed out that the above is simply illustrative and not exhaustive of all the restrictions on the ability to change the Constitution. In Indira Nehru Gandhi v. Raj Narain, the Constitutional bench decided that Judicial Review in election disputes is not mandatory since it is not part of the essential framework.

FEATURES OF JUDICIAL REVIEW

1. Power of Judicial Review can be exercised by both the Supreme Court and High Courts:A person can seek the High Court under Article 226 if they believe their basic rights or legal rights have been violated. A person can also go to the Supreme Court for any infringement of a basic right or a legal matter under Article 32. The Supreme Court, however, has the last say on how the constitution is interpreted. The Supreme Court is the country's highest court, and its judgements are binding across the country.
2. Judicial Review of both state and central laws:Both the federal and state legislatures are subject to judicial review. All laws, orders, by-laws, ordinances, constitutional changes, and other notifications are subject to judicial scrutiny under Article 13(3) of the Indian constitution.
3. Judicial review is not automatically applied:It is necessary to attract and apply the notion of judicial review. The Supreme Court cannot seek judicial review on its own. Only when an issue of law or regulation is contested in front of the Hon'ble court may it be employed.
4. Principle of Procedure established by law:The idea of "Procedure established by Law," as stated in Article 21 of the Indian Constitution, governs judicial review. If a law qualifies, it must pass the constitutionality test before becoming law. The court, on the other hand, has the authority to declare it null and invalid.

JUDICIAL REVIEW OF ORDINANCES

The president and the governor of the state have the power to pass an ordinance under Articles 123 and 213 of the Indian constitution. An act of ordinance by the president or governor is subject to the same limitations as any legislation passed by parliament.Only in extreme circumstances does the president or governor employ this power. The power should not be utilised for nefarious purposes. According to a report provided by the House of People, the president has issued 701 ordinances since October 2016.

The president's ability to enact an ordinance is not susceptible to Judicial Review, according to the decision of AK Roy v. Union of India (1982) 1 SCC 271.

In T. Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198, it was ruled that just as legislative power cannot be questioned, so can ordinances enacted on the basis of purpose, non-application of mind, or necessity.

JUDICIAL REVIEW OF MONEY BILL

When a dispute arises about whether a law is a money bill or not, Article 110 (3) of the Indian constitution provides that the speaker of the Lok Sabha's judgement is definitive.A "money bill" is outside the reach of Judicial Review in the current situation.

Article 212 of India's constitution states that courts cannot enquire into legislative processes on the basis of any procedural irregularities.

The advice and earlier sanction are merely matters of procedure, according to Article 255 of the Indian constitution.

The appellant was subject to sales tax under the coinage statute, which was altered by the Coinage Amendment Act, 1955 in the case of Mangalore Ganesh Beedi Works v. State of Mysore AIR 1963 SC 589. So, the argument was that because the bill increased the tax, it should have been enacted as a money bill and because it wasn't the tax should be declared unconstitutional.

The Supreme Court ruled that the Coinage Amendment Act of 1955 replaced old money with new coinage, hence it was not a tax.By way of obiter dictum, it was noted that if it were a tax-serving bill, it would be outside of judicial review processes as well.

GROUNDS FOR JUDICIAL REVIEW

• Constitutional Amendment: All of the authority's constitutional amendments are subjected to judicial review. All amendments that violate fundamental rights are declared null and invalid and are ruled unconstitutional. The history of judicial scrutiny of constitutional changes may be traced.In the instances of Shankari Prasad v. Union of India, Sajjan Singh v. State of Rajasthan, I.C. Golaknath v. State of Punjab, Kesavananda Bharti v. State of Kerala, and I.R. Coelho v. State of Tamil Nadu, we can trace the marks of judicial review of the constitutional amendment.
• Administrative Actions: The standards outlined by Lord Diplock in the case of Council of Civil Services Union v. Minister of Civil Services can be used to verify the constitutional legitimacy of administrative action in general. In India, the notion of judicial review is a fundamental aspect of our Constitution. The tests were as follows-

i. Illegality

ii. Irrationality

iii. Procedure used

IMPORTANCE OF JUDICIAL REVIEW

• To safeguard the constitution's premise of supremacy, judicial scrutiny is required.
• The availability of judicial review prohibits the legislature and government from abusing their powers.
• It promotes federal equilibrium by preserving the balance between the centre and the states.
• The provision protects the fundamental rights of the citizens.
• This rule protects the idea of judicial independence.

INDIAN CASE LAWS IN REFERENCE TO JUDICIAL REVIEW

1. Shankari Prasad V. Union of India AIR 1951 SC 458

In this case, the Zamindars challenged the constitutional validity of the First Amendment Act 1951 claiming that it violated basic rights and Article 13(2) of the Indian Constitution and that Article 31 was invalid. The court ruled that any change made under Article 368 of the constitution is not a law under Article 13 of the constitution. As a result, the First Amendment Act is constitutional.

Following this case, the Fourth Amendment Act was enacted which included Article 31(2A) that specified that there would be no compensation unless the land acquired was given to the state or a state business. It further noted that the sufficiency of compensation to be determined by law is not a non-justiciable matter.

In 1964, the 17th Amendment was enacted, with retroactive effect. It included Article 31A (2) (a) (iii) which states that an estate includes any area used for agricultural or supplementary purposes, such as wasteland or forest land.

2. Sajjan Singh V. State of Rajasthan AIR 1965 SC 845

The constitutionality of the 17th Amendment Act of 1964 was questioned in this case. By a 3:2 ratio, the Supreme Court dismissed the claim, applying the criterion of pith and substance to hold that Article 368 grants the right to alter 13 of the Constitution (2). In this instance the ruling in Shankari Prasad was sustained.

3. I.C. Golak Nath &Ors V. State of Punjab AIR 1967 SC 1643

The legitimacy of the 17th Amendment Act of 1964 was challenged once more in this case and the matter was referred to a bigger bench of 11 judges. By a 6:5 margin, the court overturned a previous decision in Shankari Prasad and Sajjan Singh holding that the term "law" in Article 13 encompasses constitutional amendments made under Article 368.

Article 368 merely provides for the method, not the ability to change, according to CJI Subba Rao who was speaking for a group of five judges. Because it derives its authority from Article 248 (Residuary Power), which is an ordinary law, the standard set out in Article 13 will apply.

Following this landmark judgement, the 24th Amendment of 1971 was enacted to nullify the impact of the Golaknath case. Article 13(4) states that any alteration made under Article 368 is not a law under Article 13. The marginal note of Article 368 was likewise altered to power of parliament and procedure for amending the constitution.

The 25th Amendment of 1971 replaced the word "compensation" in Article 31(2) with "amount," removing the government's responsibility to provide compensation.

4. Indira Nehru Gandhi V. Raj Narain AIR 1975 SC 865-The 39th Amendment Clause 4 was challenged in this case because it prohibits challenges to the Speaker and Prime Minister's election. It was deemed unlawful in this instance and was struck down by the court.

5. Minerva Mills V. Union of India AIR 1980 SC 1789-Further Judicial Review as well as the balance between Fundamental Rights and Directive Principles were added to the list of Basic Structure of the Constitution in this case.

6. I.R. Coelho V. State of Tamil Nadu AIR 2008 SC 861-The court decided in this matter that every act included in Schedule 9 can be judicially reviewed, but only those enactments introduced after April 24, 1973 can be.

CONCLUSION

Since, we have accepted the notion of separation of powers in India, we are unable to exercise the power of judicial review in its entirety. If the courts assume complete and arbitrary judicial review authority, it will result in bad performance by all government departments. As a result, in order for all of the functions to operate correctly, each one must work inside its own area. In India, the notion of judicial review is enshrined in the constitution's basic framework.Though it is true that the ability to review is crucial, absolute power to review cannot be granted and by recognising judicial review as a fundamental aspect of the Constitution, Indian courts have given a whole new meaning to the concept of checks and balances. This also implies that the notion of separation of powers has been buried, with the court granting itself unrestricted authority to evaluate everything the legislative does.