The Author, Fayaz Ahmed Bhat is practising Advocate in Jammu and Kashmir High Court.

INTRODUCTION:

Judicial Review is the power of Courts to pronounce upon the constitutionality of legislative and executive acts of the government which fall within their normal jurisdiction. It has the origin in the theory of limited government and in the theory of two laws, viz.. an ordinary law and a supreme law i.e Constitution. According to Basu in his book Basu's commentaries on constitution of india, vol 1. any act of the ordinary law making bodies which contravenes the provisions of the supreme law must be void and there must be some organ which is to possess the power or authority to pronounce such legislative acts void. In Fundamental Rights Case Justice Khanna said that judicial review has became an integral part of our constitution and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of statutes. If the provisions of the statutes are found to be voilative of any of the articles of the constitution which is the touchstone for the validity of all laws the Supreme Court and the High Courts are empowered to strike down the said provision."

When the Legislature, Executive and Judiciary have harmed the constitutional values and deny the rights, which have been definite under the Indian Constitution to the Indian inhabitants. In such circumstances the judicial review plays very important role as protector for safeguarding the rights of people. It is the long back journey, where we are right now. However, judiciary has faced burden of many technocrats, lawyers, politicians and academicians. 

H.M.Seervai in his book of Constitutional Law of India itemized that the superiority of judicial assessment is the conversant attraction of India, Canada and Australia, by which mechanism of parting has not been seats in without ornamentation intelligence under the Indian Constitution. The judicial assessment is technologically advanced as an indispensable feature in the countries, wherever written Constitution is adopted. In India, different organs of the government have been discriminating adequately, their powers and functions has been bifurcated and one structure of government is not permitted to emancipation the occupations of alternative organ.

 The parliamentary form of democracy, which is adopted by India, wherein every section of people is involved in decision making and policy making process. Every organ reflects fair representation of every section of the society. This is the kind of wide ranging democracy. It is the consciousness of responsibility in each republican democracy. Such straightforward theme has to be recalled by everyone.The primary duty for application of the rule of law lies with the court. It is true that the rule of law is the groundwork of social equality. It can never be modified through exercise of new powers of Parliament. Now it has been trusted, that the rule of law is the straightforward attractiveness of every one Constitution. All those who exercise public powers, they here the accountability. They have to work within democratic provisions of the Constitution. The judicial review is significance to guide them. Under Article 226 and Article 227 of the Indian Constitution, the influence of judicial assessment, have been so long as to the High Court. In Article 32 and Article136 of the Indian Constitution, the control of judicial assessment has so long as to the S.C.I. for the review of every aspect of the government and public functionaries.

EVOLUTION OF JUDICIAL REVIEW:

The Doctrine of Judicial Review was for the first time propounded by the Supreme Court of America. Originally, the constitution of United States did not contain an express provision for judicial review but it was assumed by the Supreme Court of United States in the historic case of Marbury vs Madison 2. LEd.60. Chief Justice Marshall observed that "the constitution is either superior paramount law, unchangeable by ordinary means or it is on a level with ordinary legislative acts and like other acts is alterable when the legislature shall please to alter it........... Certainly all those who framed witten constitutions contempellate them as forming the fundamental and paramount law of the nationand consequently the theory of every such government must be that an act of the legislature repugnant to the constitution is void.... It is emphatically the provonce and duty of the judicial department to say what the law is".

In India the power of judicial review was exercised by the courts prior to the commencement of the constitiution of india. the British Parliament introduced Federal System in India by enacting the Government of India Act 1935. Under this act both the Central and State legislatures were given plenary powers in there respective spheres. They were supreme in their alloted subjects like British Parliament. The Act of 1935 established the Federal Court so as to function as an arbiter in central and state relationship. The Federal Court was also empowered to scrutinize the voilation of the constitutional directions regarding the distribution of powers on introduction of federalism in india. The power of judicial review was not specifically provided in the constitution but the constitution being federal, the Federal court was entrusted impliedly with the function of interpreting the constitution and determine the constitutionality of legislative acts.

Mauriee Gwyer, Chief Justice of Federal Court of India in Bhola Prasad v The King Emperor AIR 1942 F.C.R 17 P20, observed that " we must again refer to the fundamental proposition enumerated in 1878 3 AC 889 (Reg v Borah) that Indian legislatures within their own spheres have plenary powers of legislation as large and of the same nature as those of the parliament itself, if that was true in 1878, it can not be less true in 1942.

The Federal Court of India vigorously worked for more than a decade with wisdom and diginity and by various constitutional decisions. During the span of the decade Federal Court of India and other High Courts reviewed the constitutionality of large number of legislative acts with full judicial self restraint, insight and ability.

The Supreme Court of India as a successor of Federal Court of India after the commencement of constitution of india inherited the great traditions built by the Federal Court. The constitution of India envisages a very healthy system of judicial review and it depends upon the India judges to act in a way as to mantain the spirit of democracy. In the present democratic setup in India, the court can not adopt a passive attitude and ask the aggrieved party to wait fo public opinion against legislative tyranny, but the constitution has empowered it to play an active role and to declare a legislation void, if it voilates the constitution.

The constitutional thinkers of India before the Indian Republic was established were of the view that in the constitution of free India there must be provisions for supreme court with the power of judicial review.

Colonel K.N.Hasker and K.M. Pannikkar in their book Federal India, at P 147 said that" the supreme judicial authority should be invested with the power to declare ultra vires measures which go against constitution."

Granville Austin in his book The Indian Constitution - Corner Stone Of a Nation said that " the judiciary was to be an arm of the social revolution upholding the equality that indians has longed for during colonial days, but had not gained not simply because the regime was colonial, and perforce repressive, but largely because the british had feared that social change would endanger their rule.... The courts were also idealized becuase, as guardians of the constitution there would be expression of the new law created by indians for indians. judicial review, assembly members believed, was ' an essential power for the courts of a free India, with a federal constitution'."

Under the statutory and constitutional provisions, the courts have the wide range of powers of judicial review in India. It is to state that the constitutional and statutory provisions of judicial review are totally different. The courts must exercise these powers with self-control and great caution. It is not expected from the courts that they phase out from the boundary of their appropriate influences of judicial assessment.The constitution of India provides an express provision for judicial review in the shape of Article 13. which states as:

13(1). all laws in force in the territory of India immediately before the commencement of constitution shall be void to the extent to which they are inconsistent with the provisions of part 3rd of the constitution.

13(2). state shall not make any law which takes away or abridges the fundamental rights conferred by part 3rd of constitution and any law made in contravention of fundamental rights shall to the extent of contravention, be void.

13(3). law includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law.

Article 13 in fact provides for the judicial review of all legislations in india, past as well as future. This power has been conferred on the High courts and the Supreme court of India which can declare a law unconstitutional if it is inconsistent with any of the provisions of part 3rd of the constitution.

Thus, the laws which take away or abridge the fundamental rights are liable to be struck down as ultravires or void by the courts under art 13 (2) by exercising the power of judicial review. Chief Justice Patanjali Shastri in State of Madras vs V.G.Row AIR 1952 SC 196, observed that our constitution contains express provision for judicial review of legislation as to its confirmity with the constitution........ the courts in this country face upto such important and none too easy task, it is not out of any desire to tilt at legislative authority and a crusader's spirit, but in discharge of duty plainly laid upon them by constitution. This is specially true as regards the fundamental rights as to which the court has been assigned the role of sentinel on the qui vive. Chief Justice Kania in A.K.Gopalan vs state of Madras AIR 1950 SC 27, pointed out that it was only  by way of abundant caution that the framers of our constitution inserted the specific provisions in Art 13...... In India, it is the constitution which is supreme and all statute laws must be in confirmity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not.

 The fundamental subjects of judicial review in the constitution of india relates to the following things,

1. Violation of fundamental rights

2. Violation of various other constitutional restrictions embodied in the constitution.

3. Enactment of legislative act in violation of constitutional mandates regarding distribution of powers.

4. Delegation of essential legislative power by the legislature to the executive or any other body.

5. Violation of implied limitations and restrictions.

In India, judicial review broadly covers three aspects;

 (1) judicial review of legislative action

(2) judicial review for judicial decision, and

(3) judicial review of administrative action

 These facets of judicial review were pronounced by the S.C.I. in case of L.Chandra Kumar v. Union of India AIR 1997 SC 1125 stating that the judges of higher court have to interpret legislation up to this end that the Constitutional values are not to be interrupted. To achieve this end, the judges have to keep in mind that the The legislature passed the law, which is in harmony by way of establishment of the Indian Constitution. The powers to review legislation are vested by way of the S.C.I. and state’s higher courts, for the resolution of judicial assessment. The judicial assessment of legislation is in conformism, through the establishment of the Constitution. 

In Brij Bhurshan vs State of Delhi AIR 1950 SC 129, the Supreme Court struck down the East Punjab Public Safety Act 1950, on the ground that pre-censorship restricted the freedom of the press.

Ramesh Thapper vs State of Madras, AIR 1950 SC 124, Supreme Court again struck down the Madras Maintenance of Public Safety Act 1949, on the ground that unless a law restricting freedom of speech and expression is directed against undermining the security of the state or to overthrow it, such law can not fall within the reservation of clause (2) of Article 19.

Shankari Prasad vs Union of India AIR 1951, SC 455, at page 458. the First Amendment was challanged on the ground that it abrogated the fundamental right. The argument was based on the fact that the law under Article 13 (3) shall include the constitutional amendment law. The Supreme Court rejected the contention and held that the word law in Article 13 must be taken to mean rules or regulations made in exercise of constitutional power and therefore A 13(3), did not affect amendments made under Article 13 (3).

Sajjan Singh vs State of Rajasthan AIR 1965 SC 845, again the validity of the constitution, 17th Amendment Act 1964 was in issue. The Court stuck to the position laid down in Shankari Prasad case and held that the constitutional amendments made under Art 368 fall outside the purview of judicial review by the courts.

This amendment was again challanged in Golaknath vs State of Punjab and Supreme Court through Justice Subba Rao, held that

1. The power of parliament to amend the constitution is derived from Article 245 read with entry 97 of list 1st of the constitution and not from Article 368. Article 368 only lays down the procedure for the amendment of the constitution. Amendment is a legislative process.

2. An Amendment is a law within the meaning of art 13 (3), including every kind of law, statutory as well as constitution law and hence a constitutional amendment which contravened Art 13 (3) will be declared void.

Invoking the concept of Implied Limitations on the parliament's power to amend, Chief Justice Subba Rao held that fundamental rights were given a transcedental position under our constitution and are kept beyond the reach of parliament.

In order to remove the difficulities created by the decision of Supreme Court in Golaknaths case, parliament ended with the 24th Amendment Act 1971. This amendment added the following things to Article 13 and Article 368.

Art 13 (4). "nothing in this article shall apply to any amendment of this constitution made under article 368."

Article 368. Procedure for amendment of the constitution was replaced by Power of parliament to amend the constitution and the procedure thereof.

Article 368(3). "nothing in article 13 shall apply to any amendment made under this article."

Thus, this amendment restored the amending power of the parliament and also extended its scope by adding the words " to amend by way of addition or variation or repeal" any provision of this constitution in accordance with the procedure laid down in Article 368.

In 1972, The Supreme Court was called upon to consider the validity of the 24th, 25th and 29th Amendment in Keshvananda Baharti's case AIR 1973 SC 1461.  The Supreme Court emerged victorious by asserting its institutional role vis a vis parlioament in constitutional powers and strengthening its powers of judicial review through the Basic Feature Doctrine. The doctrine of basic feature has since become the bedrock of constitutional interpretation in India.

The last straw was the Allahabad High Court's decision staying Mrs Gandhi's Election as Member of Parliament. Indira Gandhi filed an appeal before the Supreme Court from the decision of the Allahabad High Court in which it was held that the appelant had committed certain malpractices in her election. Before Supreme Court could hear the Appeal the parliament passed the Constitutional Amendment Bill 1975, which inserted clause 329 A in the constitution and placed the election of Prime Minister and Speaker beyond the purview of judicial scrutiny by way of judicial review.

Supreme Court held that the Democracy is the basic structure of the constitution. Therefore, if by 329 A, any essential feature of democratic, republican, structure of Indian polity is damaged or destroyed it would be ultravires of the constitution.   

In sharp contrast was the Supreme Courts ruling in ADM Jabalpur vs Shivakant Shukla AIR 1976 SC 1207. During the Emergency the leaders of the opposition were put in prison, the prss was muzzled and fundamental rights suspended. Upsetting rulings by Twelve High Courts in the country, the Supreme Court held that during the Proclamation of Emergency under Article 352 of the Constitution, a court was powerless to protect an individual from state action notwithstanding such action being contrary to law and resulting in complete deprivation of the right to life and liberty.

It was after the emergency was lifted there dawned a realization of the importance of decisions such as Keshavananda Bharti case, and the importance generally of the power of judicial review. The activist role that the Supreme Court was to assume in latter years is often explained as a "judicial penance" for failing the people at a critical moment in history. Post Emergency activism by the courts was also inspired by the desire to shake off the elitist image the supreme court had acquired in the earlier years. The courts opned up their doors to the poor and voiceless and acquired in time, the role of a social auditor, becoming in Justice Goswami's famous words," the last resort for the bewildered and the oppressed".

Minnerva Mills Ltd vs Union of India AIR 1980 SC 1789, the Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constituition. Limited amending power is a basic structure of the constitution, since these clauses removed all limitations on the amending power and thereby conferred an unlimited amending power, it is destructive of the basic feature of the constitution.

Thus, for the amendment to be valid the primary thing to exist is that it should  not destroy the basic structure of the constitution. The judiciary occupied a position higher than corresponding organs in its capacity as the arbiter of the fact as to what constitutes the basic structure of the constitution.

The principle of judicial review was reitterated and folowed by the Supreme Court in subsequent case law. In the subsequent case of S.P Sampat Kumar v Union of India AIR 1987 SC 386 and L.Chandra Kumar v Union of India AIR 1997 SC 1125. The constitutional validity of Art 323 (A) and the provisions of Administrative Tribunals Act 1985 which excluded the jurisadiction of the High ACourts under Art 226 and 227 was in issue. The Supreme Court held that the power of judicial review over the legislative action vested in the High Courts under Art 226 and the Supreme Court under Art 32 of the constitution is an integral and essential feature of the constitution and formed part of its basic structure.

The basic structure doctrine was yet again reaffirmed in the case of I.R.Coelho vs State of Tamil Nadu AIR 2007 SC 8617, in which tyhe Supreme Court held that any law placed in the 9th schedule after April 24, 1974 will be open to challange. The Court held that even through the Act is put in the 9th schedule by a constitutional Amendment its provisions wouold be open to challange on the ground that thjey destroy or damage the basic feature of the constitution.

Supreme Court Advocates on Record Association vs Union of India, Writ Petition (Civi) No.13 of 2015, the National Judicial Appointments Commission Act was challanged on the ground that the NJAC voilates judicial independence by creating a system in which the Chief Justice would no longer have primacy in judicial appointments and in which the judiciary would not have majority control over the NJAC in a system wherte the political influence of the executive and parliament would be dominan. Also it grants power to the parliament to change and alter judicial selection criteria and procedures, which constitutes the voilation of judicial independence, seperation of powers and Rule of Law.

The Supreme Court observed that the impugned Amendment and the Act are struck down as unconstitutional. pre-existing scheme of appointment of judges stands revived. However, the matter be listed for consideration of the surviving issue of grievances as to working of pre-existing system.     

  In J. P. Bansal v State of Rajasthan AIR 2003 SC , case of the S.C.I. has examined that the impartiality of the judiciary endangers in the community attention. Although the court interpreting the Constitution enjoys freedom. Under this freedom the court has not failed in interpreting the statute. The rule of law is the essential component of the judicial assessment, as soon as the court interpret statute and provide their own view for amending the statute. Such aforesaid judgment is the injurious to public interest.

Supreme Court of India in P.U.C.L. & others v. U. O. I. AIR 2003, case examined that the court will not interfere on the political question and on the policy matter, unless it is essential for the judicial review. However, court can interfere only on the selective ground. The court further stated that the government has to be bound by all the accessible possibilities to avoid the violence inside the establishment of the Indian Constitution.

Shayara Bano vs Union Of India W.P.No. 118 of 2016 in this case supreme court of india held that triple talaq is a unilateral power given to the husband to divorce his wife and on the face of it, it looks arbitary therefore triple talaq is unconstitutional being voilative of fundamental rights. Justice Nariman propunded Doctrine Of Manifest Arbitration and held that triple talaq is voilative of Art 14 of the constitution of India.

In Joseph Shine vs Union of India AIR 2018  S.C.I held that sec 497 of Indian Penal Code is unconstitutional. Similarily before Supreme Court of India in Navjot Singh Joher vs Union of India AIR 2018 SC the constitutional validity of sec 377 was challanged on the ground that it voilates fundamental right. Justice Chandrachud observed that "  i am not bound by societal morality, i am bound by constitutional morality and if the constitution protects the intrests of a single citizen of india i am bound to protect it". Therefore Sec 377 of I.P.C was decriminalized and was held to be unconstitutional.

Anuradha Bhasin vs Union of India 2020 SC, The Union Territory of Jammu and Kashmir was directed by Supreme Court to review all orders suspending the internet services forthwith, all orders not in accordance with law must be revoked. Supreme Court held that the Freedom of Speech and Expression and the Freedom to practice any Profession or carry on any Trade, Business or Occupation over the medium of internet enjoys constitutional protection under Art 19 (1) (a) and Art 19 (1) (g). The restriction upon such fundamental rights should be in consonance with the mandate under Art 19 (2) and Art 19 (6) of the constitution inclusive of the test of Proportionality.

Although Doctrine of Judicial Review is the basic structure of the constitution of India, it is not justified in policy matters. However, it is justified in policy matters provided that the policy is arbitary, unfair or voilative of fundamental rights. In Kerela Bar Hotels Association vs State of Kerela AIR 2016 SC 163, the Supreme Court held that the courts must be loathe to venture into an evaluation of state policy which must be given a reasonable time to pan out. If a policy proves to be unwise, oppressive or mindless, the electorate has been quick to make the government aware of its folly.

The Doctrine of Judicial Review is thus, the interposition of the judicial restraint on the legislative, executive and judicial actions of the government. It has assumed the status of permanence through judicial decisions laid down from 1973 till now. Thus, Judicial Review is the basic structure of the constitution of India and any attempt to destroy or damage the basic structure is unconstitutional.

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Fayaz Ahmed Bhat