1. BACKG ROUND
1.1. Post-independence, the insertion of definitive provisions for 'judicial review' in the Indian Constitution was necessary to facilitate assured individual and group rights. Dr. B.R. Ambedkar, who chaired the Draft Committee of Indian Constituent Assembly, had characterized judicial review as the 'heart of the Constitution'. Article 13(2) of the Constitution of India prescribes that "the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void".
1.2. The matter of Judicial Review of India was discussed for the first time in Emperor v. Burah1, where the Calcutta High Court, as well as the Privy Council, adopted the view that the Indian courts had power of Judicial Review subject to certain limitations.
1.3. The role of Judicial Review in Indian Constitution is to protect/provide liberty and freedom of the people. Some Indian thinkers have observed that the scope of Judicial Review in India is very limited, and the Indian Courts do not enjoy as wide jurisdiction as the courts in America. American courts opined that due to the 'Due Process' clause they have wider scope whereas in India the scope of Judicial Review is narrower2.
1.4. "While judicial review event of administrative action has emerged directly from common law doctrines such as 'proportionality', 'legitimate expectation', 'reasonableness' and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts also have power to adjudicate on questions of legislative competence, specially in Centre-State relations as Article 246 of the Constitution read with the 7th schedule, envisages a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures."3
1.5. The scope of judicial review before Indian courts has emerged in three dimensions – firstly, to establish fairness in administrative action, secondly, to protect the guaranteed constitutional fundamental rights and lastly, to rule on questions of legislative competence between the centre and the states. The power of the Supreme Court of India to enforce and implement these fundamental rights is derived from Article 32 of the Constitution. It gives citizens the right to directly approach the Supreme Court and High courts for seeking remedies against the violation of these fundamental rights. The makers of the Constitution very judicially incorporated in it the provisions of Judicial Review so as to maintain the balance of federalism, to protect the fundamental rights guaranteed to the citizens and to afford a useful weapon for equality, liberty and freedom.
1.6. The right to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law – such as habeas corpus (to direct the release of a person detained unlawfully), mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself ).
JUDICIAL REVIEW AS A PART OF THE BASIC STRUCTURE
1.1 In the land mark judgment of Keshavanda Bharathi v. State of Kerela4, the apex court of India the propounded the doctrine of basic structure according to which it said that the legislature has power to amend the Constitution, but such amendments shall not change the basic structure of the Constitution, The Constitutional bench made no attempt to define the basic structure of the Constitution. S.M. Sikri, C.J mentioned five basic features:
- Supremacy of the Constitution.
- Republican and democratic form of Government.
- Secular character of the Constitution.
- Separation of powers between the legislature, the executive and the judiciary.
- Federal character of the Constitution.
1.2 Justice Sikri observed that these basic features are easily distinguishable not only from the Preamble but also from the whole scheme of the Constitution. He further added that the structure was built on the foundation of dignity and freedom of the individual which undoubtedly cannot be amended. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. The Constitutional bench in Indira Nehru Gandhi v. Raj Narain5 held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure.
1.3 In S.P. Sampath Kumar v. Union of India6 Justice P.N. Bhagwati, C.J., relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) stated that it was well settled and established that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely eliminated, the Constitution would lose its basic structure and independence. In Sampath Kumar, the court further stated that if a law made under Article 323- A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an efficient and effective alternative institutional mechanism for judicial review, it would be violative of the basic structure and hence, outside the constituent power of Parliament.
1.4 In Kihoto Hollohan v. Zachillhur7 Constitution Bench, "the Tenth Schedule to the constitution inserted by the constitution (Fifty-Second Amendment) Act, 1985, seeking to penalise and disqualify elected representatives, is violative of the fundamental principles of Parliamentary democracy and is, therefore, destructive of the basic feature of the Constitution."
1.5 Subsequently, in L. Chandra Kumar v. Union of India8, the Seven-judge Constitutional Bench stated:
"that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure".
Though it is a fact that power to review is very important, at the same time absolute power to review cannot be granted and by observing judicial review as a part of basic feature of the Constitution, courts in India have given altogether a different meaning to the theory of Checks and Balances. This also means that it has buried the concept of separation of powers, where the judiciary will give itself an unfettered jurisdiction to review anything and everything that is done by the legislature.
1. Emperor v. Burah, ILR, Calcutta, 63 (1877).
2. Kagzi, M.C.J., The Constitution of India, Metropolitan, Delhi, 1958, pp. 85- 86; (ii) Pylee, M.V., Constitutional Government in India, Asia Publishing House, Bombay, 1965, p. 501.
4. AIR 1973 SC 1461
5. 1975 Supp SCC
6. (1987) 1 SCC 124 at 128
7. 1992 Supp (2) SCC 651, 715, para 120
8. (1997) 3 SCC 261
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