Introduction
- The term „judicial review,‟ in general, means the power of a court to review and potentially strike down an act of legislature as unconstitutional and invalid.
- The courts‟ power of judicial review has been culled out from the principle of checks and balances. The system of checks and balances between the legislature and the executive on the one hand and the judiciary on the other hand provides the means by which mistakes committed by one are corrected by the other and vice versa.
- For every civilised and democratic society, it becomes necessary that all the three organs of the State are working in a complete harmony. Each organ is bound to act within its own domain. And all of their actions have to be tested on the Constitutional and democratic principles.
- In its wider connotation, judicial review means not merely a power of the courts to setaside legislative actions but also covers the power of judicial review of executive or administrative actions.
- Furthermore, Superior courts have power to review the acts, decisions and omissions of public authorities in order to determine whether they have exceeded or abused their powers.
- Judicial review is different from right of appeal. An appeal is a statutory right. An appellate body receives power from a statute to decide the whole case again. An appellate body can change the lower court‟s verdict and give its own decision over the issue.
- Contrary to this, in case of judicial review, the courts have limited powers. The courts do not act as an appellate authority while doing judicial review.
- In case of judicial review, the courts inquire how the decision was reached. The superior court scrutinises the whole decision-making process and checks whether the decision was made lawfully or not.
- If the superior court finds the decision unlawful, it cannot make a fresh decision but sends the matter back to the decision-making authority.
Judicial Review in India
In India, the judiciary is the guardian of the Indian Constitution, the democratic atmosphere and individuals‟ fundamental rights. An independent and impartial judiciary fights against legislative and executive arbitrariness.
Indian judiciary is empowered with power of judicial review. The courts have power to review all legislative enactments, executive and administrative actions.
The Indian Constitution explicitly provides for judicial review through Articles 13, 32, 131–136, 143, 226–246. In contrast to the judicial review of legislative action, the courts in India use the power of judicial review more against the excesses of administrative action.
According to Dr. Ambedkar, the provisions for judicial review, in particular the writ jurisdiction would provide quick relief to the individuals against the abridgment of fundamental rights.
In A.K.Gopalan v State of Madras26 the court held that the Constitution is supreme and every statute has to be in conformity with the constitutional requirements. Moreover, it is the binding duty of the courts to decide whether any law or statute is constitutional or not.
More importantly, in the Golak Nath case34 Chief Justice Subba Rao upheld the lawmaking role of the judiciary. He said that Articles 32, 141 and 142 of the Indian Constitution enable the Supreme Court to formulate legal principles to reach the ends of justice. Therefore, all such constitutional provisions strengthen the Indian Judiciary, which in consequence attracts people‟s trust.
Judicial Review of Legislative Action in India
- Article 13 lays down the procedure for judicial review in India. It enables the courts to examine the constitutional validity of laws passed by the Parliament and the state legislatures.
- In India, Judicial review of legislative action is being done by using some basic principles of Constitutional Law i.e. doctrines of Pith and Substance, Colourable Legislation, Severability, Liberal Interpretation, Limitations of Stare Decisis, Unconstitutionality and Eclipse, and Waiver. Doctrine of Basic Structure is one of the most reliable grounds for judicial review.
- Article 13 deals with statute law and not with the law declared by the courts, or with the directions or orders made by the Supreme Court under Art. 142.
- Article 13 of the Indian Constitution : Laws inconsistent with or in derogation of the fundamental rights.
- The Constitution has distributed the legislative powers between the centre and the states. Both of them have to exercise their powers within their assigned domain. They cannot interfere with the powers of each other. The courts decide whether a legislature or an executive has acted beyond its jurisdiction or against the constitutional requirements or not.
- Article 13 provides that “fundamental rights‟ will prevail over all laws in force before the commencement of the Constitution. It also prohibits the making of any law, rule, regulation, etc that violates or diminishes the fundamental rights. However, this provision does not impose restriction on the process of constitutional amendment. Parliament may amend any Constitutional provision while exercising of its constituent power in accordance with the procedure mentioned under Article 368 of the Indian Constitution.
- In Golaknath v Punjab, the Supreme Court of India categorically held that the Parliament cannot amend the fundamental rights. The Court held that the procedure laid down for the constitutional amendments in Article 368 was “law‟ within the meaning of Article 13.
- In Kesavananda Bharti v State of Kerala the Supreme Court said that the Parliament is allowed to amend the Constitution but is not authorised to amend the “basic structure‟ of the Indian Constitution.
- In this case, the Supreme Court ruled that the 24th, 25th, and 29th Amendments were unconstitutional to the extent that they violate the “basic structure‟ of the Constitution. In doing so the court overruled the majority opinion of Golaknath’s case.
- In Indira Gandhi v Raj Narain The Court decided by a majority that ordinary laws are not subject to the test of the Basic Structure of the Constitution. The doctrine of basic structure is applied only to determine the validity of Constitutional Amendments.
- In State of Rajasthan v Union of India, the Supreme Court held that the Proclamation of emergency under Article 356(1) does not have any kind of immunity from judicial review. The Supreme Court or the High Court can strike down the Proclamation if the court finds that it was decided on mala fide or irrelevant or extraneous grounds.
Judicial Review of Administrative Action in India
Judicial review of administrative action in India has been developed in order to regulate every action of the administrative authorities. In the process of judicial review of administrative decision, the writ court does not sit as an appellate court. Again, it is not for the writ court to replace its own decision against the decision of the administrative authorities.
The court scrutinises the whole administrative action, and sees how the whole action was reached. If the court finds an administrative action as arbitrary or irrational, the court sets aside the whole action and sends back the matter to the administrative authority for reexamination.
Courts do not interfere in an administrative decision unless the decision is an outcome of an unfair procedure. Mere suspicion of unfairness would not be sufficient. The claimant has to prove the unfairness in the administrative action in any of its form including abuse or a misuse by the authority of its powers.
The “doctrine of proportionality‟ is another important basis for exercising judicial review. The doctrine of proportionality is well recognized concept of judicial review. If the administrative authority awards disproportionate punishment, it becomes necessary for the judicial court to intervene. Award of punishment which is grossly disproportionate to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.