Judicial Review

Introduction –Judicial review is the branch of the judiciary through which it examines the
constitutionality of the laws and policies of the executive and legislature (Parliament or Legislature) and
declares them invalid if they are inconsistent with any article of the Constitution.
There are three basic conditions of judicial review-
(i) Written and rigid constitution
(ii) Division of power between the Center and the States
(iii) System of fundamental rights
The Indian Constitution fulfills all these conditions. Therefore, even in the absence of clear constitutional
provisions, the principle of judicial review came into practice, and the Supreme Court used it in many
decisions.
Judicial review and Article 356
The question of judicial review under Article 356 has come up for consideration before the Courts in
several circumstances. The first such instance was in the Kerala High Court in K.K. Aboo v. Union of
India case. In that case the Court refused to go into the constitutionality of the proclamation under Article
356. The scope was considered in greater detail in a later case in 1974 where it was held that judicial
review was barred for a proclamation under Article 356 as the Presidential satisfaction is basically a
political issue and the Court did not want to go into an intrinsic political question. Thus, the Courts for a
long time gave support to the action of the Central Government. Interestingly, none of them came for
consideration before the Supreme Court. The principle that such Presidential Proclamation is not immune
from judicial review was first established in the case of State of Rajasthan v. Union of India and has
been expanded in the case of S.R. Bommai v. Union of India.
State of Rajasthan v. Union of India case judgment, 1977
• The Court does judicial review on limited grounds.
• It said that immunity for Presidential action, could not exist in case of mala fide or irrelevant grounds.
During the State of Rajasthan case, Article 356 contained clause (5), which was inserted by the Thirty-
Eighth Amendment by which the satisfaction of the President was made final and conclusive and that
satisfaction was not open to be questioned in any court on any ground. Clause (5) was deleted by the 44th
amendment in 1978.
S.R. Bommai case Judgment,1994

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• As per the Supreme Court, Article 74(2) (which states that advice given by CoM cannot be enquired into
by judiciary) does not impose any restriction on the court from examining the material on basis of which
President formed his satisfaction.
• The Proclamation under Article 356 is not immune from judicial review. The Supreme Court or the High
Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or
extraneous grounds.
• The power conferred by Article 356 upon the President is a conditioned power. It is not an absolute
power. It also stated that the power of President is limited by article 356(3), which requires parliamentary
approval of the emergency. This implies that President shall not dissolve the assembly till the time it is
approved by the Parliament.
• It stated that as far as possible the Centre should issue a warning notice to the erring state asking for
reasons
• Once the proclamation is issued, the Government has to go. There is no room for holding that the
President can take over some of the functions and powers of the State Government while keeping the State
Government in office. There cannot be two Governments in one sphere.
• Secularism is a basic feature of the constitution and its violation by the State government makes it liable
to be dismissed as per article 356.
• The Court also reiterated its power to provide remedy and reinstate the government if intentions are
proved malafide.
Rameshwar Prasad & Ors vs Union of India, 2006 (The defection case)
• One of the questions of far reaching consequence that arose in this case was whether the dissolution of
Assembly under Article 356 of the Constitution of India can be ordered to prevent the staking of claim by
a political party on the ground that the majority has been obtained by illegal means and defection(horse
trading) are rampant. The court observed:
o That the scope of Judicial Review was broadened in the case of S.R. Bommai.
o It examined the merits of the Governor’s report and came to the conclusion that for fighting social evils
like defection, Article 356 cannot be invoked. As the Governor’s report did not give any reason for the
Presidential Proclamation except defection, so, the Proclamation was declared as unconstitutional.
o On whether Article 361 grants immunity* to the Governor the Court said that such immunity does not
take away power of the Court to examine validity of the action, including on the ground of malafide.

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The Supreme Court has thus created safeguards with regard to the utilization of Article 356. Several
expert committees have lauded such safeguards to be adopted through constitutional amendments to
ensure smooth Centre-State relations and effective Constitutional governance.
Emergence of coalition governments has restricted the imposition of the President’s rule in the states. The
arbitrariness, which was associated with the one party rule at the Centre has gone and this has greatly
brought down the number of cases of President’s rule.
The right of judicial review has a strong basis in many provisions of the Indian Constitution –

1. System of constitutional remedies - It has been provisioned in Article 13 that if the state violates the
fundamental rights by law then that law can be declared illegal. Article 32 of the Constitution provides
the right to go to court if one's fundamental rights are violated.
2. Distribution of Central and State powers - Under Article 246 of the Constitution, the legislative
limits of the Union and the States have been mentioned. The Supreme Court can declare illegal any
such law by which the Union or the States have exceeded their jurisdiction.
3. System of amendment of the Constitution - According to Article 368 of the Constitution, the right to
amend the Constitution has not been given only to the Central Parliament, but the definite role of the
state legislatures is also mentioned in it. If any amendment is not in accordance with the legislative
process, the court can declare it illegal.
4. Power to interpret the Constitution - According to Article 132 of the Constitution, in such cases
where the question of interpretation of the Constitution lies, appeal can be made to the Supreme Court.
Therefore, it is clear that the Supreme Court has the final authority to give decisions on constitutional
matters.
5. Constitutional supremacy - According to Justice Murjee, the principle of constitutional supremacy
has been recognized in India instead of parliamentary sovereignty. From this point of view, the
Constitution of India is more similar to the American Constitution than the English Constitution. All
instruments of government are subject to the Constitution and the Court has the power to inquire into
the legality of their actions.
6. Principle of Basic Structure – In the Kesavananda case, the Supreme Court established the principle
of basic structure. If any rule, law or order is inconsistent with the basic structure, the court can declare
it illegal.
Nature and limits of judicial review in India

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 Although the power of Supreme Court review is provided by the Indian Constitution, the scope of
judicial review in India is not as wide as it is in the United States. In fact, there are some reasons which
have made the system of judicial review in India inferior in comparison to the United States.
1. The US Constitution is very brief and due to this brevity of the Constitution, various types of disputes
keep arising between the federal government and the units and as a result, the scope of judicial review
of the Supreme Court has become very wide. The scope of judicial review in India is relatively limited
due to the fact that in order to minimize the situation of conflict between the Union and the States, a
provision has been made in the Constitution of India for a Concurrent List in respect of which the final
word is given to the Centre. Is received. Due to these detailed provisions, the scope of litigation and in
other words judicial review has been limited.
2. Fundamental Rights: In India, along with every fundamental right, their limits have also been fixed in
the Constitution and due to this, the scope of judicial review has been limited. The procedure
established by law is adopted in the Indian Constitution.
3. The procedure established by law has been adopted in the Constitution of India, which means that the
Supreme Court of India can declare the laws made by the State Legislature of the Union as illegal only
if the concerned Legislature has violated the competence of making this law. ,
Some examples of judicial review
 In Golaknath vs. State of Punjab, the court changed its earlier decisions and declared the fundamental
rights intact. In Keshavanand Bharati vs. State of Kerala, later the Supreme Court said that the
Parliament can amend the fundamental rights but the river can amend all the rights. Later the theory of
basic structure was propounded. The court said that Parliament cannot damage or destroy the
principles of the basic structure of the Constitution.
Recent example of judicial review
 The Supreme Court reviewed the decision of demonetization taken in the year 2016 and in its decision
of January 2023 said that the government's decision of demonetization was correct based on the
powers given in Section 26(2) of the Reserve Bank of India Act.
 On December 11, 2023, the Supreme Court reviewed the 2019 decision of the Central Government to
remove Article 370 from Jammu and Kashmir and the Court said that the President's decision was
correct on the basis of the powers conferred under Article 370 (3). Along with this, the court directed
to hold assembly elections in Jammu and Kashmir by 30 September 2024 and to give back the
statehood.
 On April 17, 2023, the Supreme Court said that the Central and State Governments cannot refuse to
give ration cards to migrant workers on the grounds that the population ratio has not been maintained
properly under the National Food Security Act.

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 In 2023, the Supreme Court said in an important order that a waiting period of 6 months will not be
mandatory for divorce by mutual consent.
 In 2019, through the 103rd Constitutional Amendment Bill, the Central Government had made
arrangements to provide 10 percent reservation in education and government jobs to the economically
weaker sections. A bench of five judges of the Supreme Court reviewed the law and the Court held
that the EWS (Major) reservation did not violate the basic structure of the Constitution and upheld the
government's decision.
Criticism of Judicial Review
 If one studies the use of the power of judicial review by the Supreme Court, it becomes clear that in
general the Supreme Court has used its power judiciously - but in recent years, especially in the
Golaknath dispute in 1967, the Supreme Court From the decision given by the court till 1973, some
such tendencies have been seen in the decisions of the Supreme Court, which have made it worthy of
criticism. The main grounds of this type of criticism are as follows:
1. Working as a conservative judge - There is no doubt that the Supreme Court has till now acted as a
protector of individual liberty and civil rights, but it is also a fact that on property related questions
it has acted as a conservative judge. Did. In 1950-51, it declared illegal some of the land reform
laws passed under the abolition of Zamindari and Jagirdari, in 1953 declared the acquisition by the
government of 'Solapur Spinning and Beating Company' illegal and in 'Kunhikoman vs. State of
Kerala' declared the Kerala Agricultural Act illegal. Did.
2. Changes in its previous decisions by the Supreme Court - One of the main objections raised on the
use of judicial review by the Supreme Court is that the Supreme Court has been continuously
making changes in its previous decisions, as a result of which misconceptions are created about the
entire faith of constitutional law. Have happened. In the cases of Shankar Prasad in 1952 and
Sajjan Singh in 1965, by unanimous decision in the first and majority decision in the second, the
Supreme Court accepted that the Parliament can amend any part of the Constitution including the
fundamental rights if the prescribed in this regard The procedure should be followed, but in the
'Golaknath controversy' of 1967, the Supreme Court ruled that the Parliament will not have the
right to amend any provision of Part 3 of the Constitution in such a way that the fundamental rights
are taken away or limited. Or
3. Encroachment of constitutional limits - The manner in which the power of judicial review was
used by the Supreme Court during the period 1967-71, it is quite clear that the Supreme Court has
encroached upon its constitutional limits and played a role in the Indian polity. Has tried to pay
what the Constitution makers did not want to pay. Even after adopting judicial review in India, its
limits have been set and judicial review in the Indian Constitution is not to the same extent as it is
in America.

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 4. Instability of social, economic and political life - Due to judicial review, there is always a fear that
the law made by the Parliament and the policy adopted by the government may be declared illegal
by the judiciary. In such a situation, there is an atmosphere of instability in social, economic and
political life, which is definitely very harmful for the entire system. Critics of judicial review say
that the judiciary should limit itself to legal questions.
5. A situation of conflict arises between the Parliament and the Judiciary - Due to the power of
judicial review, when the laws made by the Parliament are declared unconstitutional by the
Judiciary, a situation of conflict arises between the Parliament and the Judiciary.
Importance of judicial review
 Despite the above criticisms of judicial review, it cannot be denied that the system of judicial review is
very necessary for Indian democracy and extremely beneficial for the entire polity of India.
 The strict division made by the Constitution between the Union and State Governments is possible to
be protected only on the basis of judicial review.
 The work of curbing corruption and protecting civil rights and liberties can be done only on the basis
of judicial review.
 The system of judicial review works as a balance between the various institutions of the Constitution
and only on the basis of judicial review, the Supreme Court and the High Court can act as interpreters
and protectors of the Constitution.

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