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Project topic:
JUDICIAL REVIEW
Submitted By
NISHANT KUMAR
Roll no. 11949
3 Year , 5 Semester, B.A.LL.B(Hons.)
th
Submitted to
ACKNOWLEDGEMENT
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Nishant
Kumar
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TABLE OF CONTENTS
INTRODUCTION.............................................................................................. 5
HISTORY OF JUDICIAL REVIEW................................................................. 7
JUDICIAL REVIEW IN INDIA........................................................................ 10
CASES ON JUDICIAL REVIEW IN INDIA.................................................... 14
EXTENT OF JUDICIAL REVIEW IN INDIA................................................. 17
A COMPARISON OF JUDICIAL REVIEW IN INDIA WITH THAT OF
U.S.A.................................................................................................................. 20
RESTRICTION ON THE RIGHT OF JUDICIAL REVIEW........................... 21
METHODS OF ENFORCEMENT OF JUDICIAL REVIEW......................... 23
PURPOSES OF JUDICIAL REVIEW.............................................................. 26
CONCLUSION.................................................................................................. 28
BIBLIOGRAPHY
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RESEARCH METHODOLOGY
In this project Doctrinal Method will be used. Doctrinal Methods refer to Library research,
research or processes done upon some texts writings or Documents, legal propositions and
Doctrines, Articles, Books as well as Online Research and Journals relating to the subject.
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INTRODUCTION
The Indian Constitution was adopted on 26 th January 1950, i.e. exactly 894 days after the
country got independence from the crutches of the British Rulers. The Framing of the Indian
constitution took a lot of time, hence it can be seen that it is also the largest constitution in the
World, having incorporated what the framers felt were the best of laws and doctrines from the
world over into the constitution and also keeping in view the Indian society and the
compatibility of such laws in the said society. The need for the constitution to be in
conformity of the needs of the society and the people it governs is the basic reason why a
provision of Judicial Review has been incorporated in the Indian Constitution.
The idea of Judicial Review has been included in the Indian constitution, not as any separate
provision, but in the very spirit of the Constitution similar to the idea of federalism, which
has not been mentioned anywhere in the constitution and yet is seen as an inalienable part of
the same. The power to enact new laws and amend the constitution lies with the Legislature, a
body of officials elected by the people who represent the will of the people in their decisions.
In those cases where this body makes laws or amends laws in such a way wherein the law or
amendment is in direct contravention of the basic structure of the Constitution 1 or any rights
guaranteed by the constitution in Part III.
A good constitution must possess some fundamental limitations and restrictions on the power
to govern and legislate. The limitations and restrictions are direct or indirect, express or
implied. A good constitution must also provide for the power of Judicial Review over
Constitutional Amendments and Legislative Acts. In a Federal state, such impartial institution
is unquestionably needed to maintain the federal balance2.
Literally the notion of judicial review means the revision of the decree or sentence of an
inferior court by a superior court. Judicial review has a more technical significance in
pubic law, particularly in countries having a written constitution which are founded on
the concept of limited government. Judicial review in this case means that Courts of
law have the power of testing the validity of legislative as well as other governmental
action with reference to the provisions of the constitution.
According to Black's Law Dictionary, judicial review is "a philosophy of judicial decisionmaking whereby judges allow their personal views about public policy, among other
factors,
to
guide
their
philosophy tend to find constitutional violations and are willing to ignore precedent."
Merriam-Webster's Dictionary of Law, defines judicial review as "the practice in the
judiciary of protecting or expanding individual rights decision that depart from established
precedent or are independent of or in opposition to supposed constitutional or legislative
intent."
The Dictionary of Political Science,3 defines Judicial Review as The power of the court to
review statutes or administrative acts and determine their constitutionality, the examination of
Federal and State Legislative Statutes and the acts of executive officials by the courts to
determine their validity according to written Constitution.
The Supreme Court in Kartar Singh v. State of Punjab4, explained Judicial review as it is
not only concerned with the merits of the decision but also of the decision-making process. It
intends to protect the individual against the misuse or abuse of the power by a wide range of
authorities. Judicial review is a protection to the individual and not at weapon.
Section 114, CPC, 1908 defines Judicial Review as a Means to look again main object of
granting a review of judgment in reconsideration of the same matter by the same judge under
certain conditions.
It cannot be disputed and must be obeyed. The power of the parliament is absolute and
transcendent, it is omnipotent in the scale of political existence.
In 1842, the House of Lords held,
All that a Court of Justice can do is to look into the Parliament roll: if from that it should
appear that a bill has passed both houses and received Royal Assent, no Court of Justice can
inquire into the mode in which it was introduced into the Parliament, nor into what was done
previous to its introduction, or what was passed in Parliament during the progress in its
various stages through both the Houses9.
The same was also noted by Justice M Hidayatullah,
The Power of Judicial Review was abandoned in England some three hundred years ago
after which the sovereignty of the Parliament is beyond question10
After the said case in England and the eventual fall of the doctrine of Judicial Review in the
country, there was much activism in the USA for the adoption of similar ideas so as to
strengthen the working of the state and in order to protect the rights of the people, there were
the famous judiciary debates in the Senate in which the power of the Judges for Judicial
Review was vigorously asserted, Senator Morris in the Judiciary Debates of 1802 said,
The Power of the courts to declare legislation invalid is derived from an authority higher
than the constitution, i.e. the constitution of man, from the nature of things, from the
necessary process of human affairs.11
ORIGIN
The doctrine of judicial review has been originated and developed by the American
Supreme Court, although there is no express provision in the American Constitution
for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had
9 Edinburgh and Dalkeith Ry v. Wanchope (1842) 8 Cl & F 710
10 Democracy in India and the Judicial Process, M Hidayatullah, 1966, Asia
Publishing House, Bombay, p 65
11 Judicial Review of Legislative Acts, C.D. Jha, 2009, LexisNexis Butterworths
Wadhwa
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the power of judicial review. Chief Justice George Marshall delivering the judgment
stated;
Certainly all those who have framed the written Constitution contemplate them as
forming the fundamental and paramount law of the nations, and consequently, the
theory of every such Government must be that an act of the legislature, repugnant to
the Constitution is void.
There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between
the Constitution and the Acts passed by the legislature, the Courts follow the
Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts
declare void the acts of the legislature and the executive, if they are found in
violation of the provisions of the Constitution.
In 1803, the fourth Chief Justice of America, Marshall, C.J. wrote the historic decision of
Marbury v. Madison12, in this decision he declared that the legislature has no authority to
make laws repugnant to the constitution and in the case of constitutional violations, the court
has the absolute and inherent right to declare the Legislative Act void. In effect this was the
first decision that established the doctrine of Judicial Review in the ratio decidendi of the
judgement. Bernard Schwartz is of the view that this case has much historical importance as
it is the first case establishing the power of the Supreme Court to review constitutionality13.
Justice Marshall through his various constitutional decisions established these principles:
powers are granted by the people and it is to be exercised for the benefit of the people.
The Constitution is supreme.
The Central Laws have supremacy over the State laws.
A law repugnant to the Constitution is void.
The court has power to determine the constitutionality of a Legislative Act and
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The power of judicial review of legislation is given to the judiciary both by the political
theory and text of the constitution. There are several specific provisions in the Indian
constitution, judicial review of legislation such as Articles 13, 32, 131-136, 143, 226, 145,
246, 251, 254 and 372.
Article 372 (1) establishes the judicial review of the pre-constitutional legislation
similarly. Article 13 specifically declares that any law which contravenes any of the
provision of the part of Fundamental Rights shall be void. Even our Supreme Court has
observed, even without the specific provisions in Article 13.
The court would have the power to declare any enactment which transgresses a
Fundamental Right as invalid. The Supreme and high courts are constituted the
protector and guarantor of Fundamental Rights under Articles 32 and 226. Articles
251 and 254 say that in case of in consistent if between union and state laws, the state
law shall be void.
Judicial review is a great weapon in the hands of judges. It comprises the power of
a court to hold unconstitutional and unenforceable any law or order based upon such
law or any other action by a public authority which is inconsistent or in conflict with
the basic law of the land. In fact, the study of constitutional law may be described as
a study of the doctrine of judicial review in action The courts have power to strike
down any law, if they believe it to be unconstitutional.
The judgment in I.R. Coelho v. the State of Tamil Nadu14 has answered this question by
establishing the pre-eminence of judicial review of each and every part of the Constitution.
The Court has laid down a two-fold test: (a) whether an amendment or a law is violative of
any of the Fundamental Rights in Part III (b) if so, whether the violation found is
destructive of the basic structure of the Constitution. If the court finds that the
impugned enactment damages the basic structure of the Constitution, it shall be
declared void, notwithstanding the fictional immunity given to it by Article 31B.Thus,
the basic structure doctrine requires the State to justify the degree of invasion of
Fundamental Rights in every given case; and this is where the court's power of judicial
review comes in.
Under our Constitution, judicial review can conveniently be classified under three heads15: (1) Judicial review of Constitutional amendments.-This has been the subject-matter
of consideration in various cases by the Supreme Court; of them worth mentioning
are: Shankari Prasad case16, Sajjan Singh case17, Golak Nath case18, Kesavananda Bharati
case19, Minerva Mills case20, Sanjeev Coke case21 and Indira Gandhi case 22. The test of
validity
of
Constitution.
(2) Judicial review of legislation of Parliament, State Legislatures as well as
subordinate legislation.-Judicial review in this category is in respect of legislative
competence and violation of fundamental rights or any other Constitutional or legislative
limitations;
(3) Judicial review of administrative action of the Union of India as well as the
State Governments and authorities falling within the meaning of State. The researchers
emphasis is in this direction.
It is necessary to distinguish between judicial review and judicial control. The term
judicial review has a restrictive connotation as compared to the term judicial control. Judicial
review is supervisory, rather than corrective, in nature. Judicial review is denoted by the
writ system which functions in India under Arts. 32 and 226 of the Constitution. Judicial
15 Justice Syed Shah Mohammed Quadri, Judicial Review of Adminstrative Action, (2001) 6 SCC
(Jour) 1.
16 Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
17 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
18 Golak Nath v. State of Punjab, AIR 1967 SC 1643
19 Kesavananda Bharati v. Union of India, AIR 1973 SC 1461
20 Minerva Mills v. Union of India, AIR 1980 SC 1789
21 Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147
22 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
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control, on the other hand, is a broader term. It denotes a much broader concept and includes
judicial review within itself. Judicial control comprises of all methods through which a
person can seek relief against the Administration through the medium of the courts,
such as, appeal, writs, declaration, injunction, damages statutory remedies against the
Administration23.
Therefore judicial review is a fundamental principle of law that every power must be
exercised within the four corners of law and within the legal limits. Exercise of
administrative power is not an exception to that basic rule. The doctrines by which those
limits are ascertained and enforced form the very marrow of administrative law. Unfettered
discretion cannot exist where the rule of law reigns. Again, all power is capable of abuse, and
that the power to prevent the abuse is the acid test of effective judicial review.24
Under the traditional theory, courts of law used to control existence and extend of
prerogative power but not the manner of exercise thereof. That position was, however,
considerably modified after the decision in Council of Civil Service Unions v. Minister for
Civil Service25, wherein it was emphasized that the reviewability of discretionary power
must depend upon the subject-matter and not upon its source. The extent and degree of
judicial review and justifiable area may vary from case to case26.
At the same time, however, the power of judicial review is not unqualified or
unlimited. If the courts were to assume jurisdiction to review administrative acts which
are unfair in their opinion (on merits), the courts would assume jurisdiction to do the very
thing which is to be done by administration. If judicial review were to trespass on the
merits of the exercise of administrative power, it would put its own legitimacy at risk.
It is submitted that the following observations of Frankfurter, I. in Trop v. Dulles27
lay down correct legal position:
23 M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the
Subject containing case-law reference (Indian & Foreign), 6th Ed., Wadhwa and Company Nagpur,
New Delhi, 2007, p. 1779.
24 Wade, Administrative Law, (1994), pp. 39-41
25 (1984) 3 All ER 935: (1984) 3 WLR 1174: (1985) AC 374.
26 Craig, Administrative Law, (1993), p. 291.
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All power is, in Madisons Phrase of an encroaching nature. Judicial Power is not immune
against this human weakness. It also must be on guard against encroaching beyond its
proper bounds, and not the less so since the only restraint upon it is self restraint.
27 (1985) 35 US 86.
28 AIR 1951 SC 458
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property and that it could not be done as there was a restriction on the amendment of
Fundamental Rights under Article 13 (2).
The Supreme Court rejected the contention and unanimously held. "The terms of Article 368
are perfectly general and empower parliament to amend the constitution without any
exception whatever. In the context of Article 13 law must be taken to mean rules or
regulations made in exercise of ordinary legislative power and amendments to the
constitution made in exercise of constituent power, with the result that Article 13 (2) does
not affect amendments made under Article 368."
In Sajan Singh's case29, the corupetence of parliament to enact 17th amendment was
challenged before the constitution. Bench comprising of five judges on the ground that
it violated the Fundamental Rights under Article 31 (A).
Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when article
368 confers on parliament the right to amend the constitution the power in question can be
exercised over all the provisions of the constitution, it would be unreason about to hold that
the word law' in article 13 (2) takes in amendment Acts passed under article 368.
Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws,
and could not be struck down by the application of article 13 (2).
The historic case of Golak Nath vs. The state of Punjab30 was heard by a special bench of
11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was
challenged.
The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared
that parliament under article 368 has no power to take away or abridge the
Fundamental Rights contained in chapter II of the constitution the court observed.
(1) Article 368 only provides a procedure to be followed regarding amendment of the
constitution.
(2) Article 368 does not contain the actual power to amend the constitution.
29 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
30 AIR 1967 SC 1643
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(3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry
97 of the union list.
(4) The expression 'law' as defined in Article 13 (3) includes not only the law made
by the parliament in exercise of its ordinary legislative power but also an amendment of the
constitution made in exercise of its constitution power.
(5) The amendment of the constitution being a law within the meaning of Article 13 (3)
would be void under Article 13 (2) of it takes away or abridges the rights conferred
by part III of the constitution.
(6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the
seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and,
therefore, void under Article 13 (2) of the constitution.
(7) Parliament will have no power from the days of the decision to amend any of the
provisions of part III of the constitution so as to take away or abridge the
Fundamental Rights enshrined there in.
The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in
the Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of
law to change or destroy the entire fabric of the constitution through the instrumentality of
parliament's amending power.
In Minerva Mills case31 the Supreme Court by a majority decision has trunk down section 4
of the 42nd Amendment Act which gave preponderance to the Directive Principles over
Articles 24, 19 and 31 of part III of the constitution, on the ground that part III and part IV of
the constitution are equally important and absolute primacy of one over the other is not
permissible as that would disturb the harmony of the constitution.
The Supreme Court was convinced that anything that destroys the balance between the two
part will IpsoTacto destroy an essential element of the basic structure of our constitution.
legislation
from
the
early review
extends
to
all
acts
of
government
or
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administration. It can be said that in addition to specific case, the Court exercise their
restraint of judicial power, judicial review has almost no borders.
Judicial review of political issues: In the early practice of judicial review, Supreme
Court of India was that if the case involved political issues, does not apply to judicial
review. But then this position has changed slowly, in Keshavananda Bharathi case, the
Court noted that "involves tampering with the Constitution judicial review of cases may
involve political issues, but only the court has the power to judge cases. interpret the
Constitution's powers should be attributed to the State jurisdiction ".
The Court's position in the later case in a series of further specific, as in S. R. Bommai case,
the court decision that "The state Governor, the President formed the basis of his political
views may be based on judgments, it is not appropriate for judicial review. If Justice
will fall into a complex political disputes, which the court should be avoided. So , the court
can not forbid the President to exercise the powers conferred on him by the Constitution,
unless the evil abuse of power, but the court also noted that" judicial review although it can
not review the President's subjective judgments, but the president may review the basis on
which to make decisions.
From these precedents it can be seen that the Indian courts in dealing with the basic legal and
political position of the judiciary in finding significant matters involving politics should be
careful to play its role of judicial review, and some restraint in handling cases, to avoid use of
judicial jeopardize the constitutional review powers the legislative and executive powers, but
the judiciary but also to minimize the abuse of presidential power judicial review and
supervision should be ultra vires the right balance.
The basic principles of judicial review of constitutional status: In 1973, the Supreme
Court in the landmark Keshavananda Bharathi v. State of Kerala 32 case presented the basic
principles of judicial review. Legislature can amend the constitution, but cannot change the
basic principles of the Constitution. If the violation of basic constitutional principles,
constitutes unconstitutional is generally believed that the basic principles of the
Constitution of India has the following five basic points:
the supremacy of the Constitution, republican and democratic form of government, secular
constitution, legislative, administrative and judicial separation of powers and federalism.
32 AIR 1973 SC 1461
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These basic principles are throughout the Preamble to the Constitution of India and
the entire framework of the Constitution. The Constitution is built on the basic
principles citizens on the basis of freedom and dignity, the Indian Constitution, the Law
may not deprive citizens of any form of freedom and dignity. The basic principle of the
Constitution is only a matter of principle, not exhaustive revision of the constitution limits the
power of all cases. In the subsequent series of cases, the court of judicial review is
further recognized as one of the basic principles of the Constitution. The Court in
some cases held that judicial review is a constitutional fundamental and essential
feature. If the judicial review is absolutely deprived of the Constitution had no
vitality. The Court further pointed out that if the Supreme Court ruled out legislation enjoy
the constitutional right to judicial review, and with no other alternative mechanisms for
judicial review is in violation of the basic principles of the Constitution, the Congress,
the legislation goes beyond the scope of legislative power.
In 1997 in, L. Chaiadra Kumar V Union of India 33 case, the Constitutional Court
more clearly stated that "the Constitution and Articles 32 &226 were granted to the
Supreme
judicial
review
of existing legislation
is
rights. The court of human rights protection thanks to a series of successful litigation
procedural law reform, as introduced in the procedural law of social activities on litigation,
public interest litigation and other new design of the system, so that vulnerable groups in
society can more easily enter the judicial process.
Indian court has also sought, through judicial interpretation of constitutional provisions
to achieve its goals. 80 years in the 20th century and early 90s, the Indian court
would change its traditional law enforcement agencies as a simple nature of many of
its political decision to the Indian society, the enormous social and economic change.
While judicial activism has played an active court supervision of administrative and
legislative powers, the role of the effective exercise of judicial power, to some extent
contributed to the improvement of the rule of law in India.
But on the other hand, the Supreme Court's new role of judicial activism also has
been criticized, and many Critics accused him of breach of the principle of separation
of powers, especially the Supreme Court administrative action policies and guidelines
established by the widely criticized, is considered by more powers of the executive and
legislative areas. As a result, limit the power of judicial review has become India's new task
of constitutional law.
courts might find it difficult to work act the limitations on the fundamental rights and
the same better be laid down in the constitution itself. The constitution makers also felt
that the Judiciary should not be raised at the level of 'Super legislature', whatever the
justification for the methods logy adopted by the constitution makers, the inevitable
result of this has been to restrict the range of judicial review in India. It must, however, be
conceded that the American Supreme Court has consumed its power to interpret the
constitution liberally and has made so thorough a use of the due process of law
clause that it has become more than a more interpreter of law. It has, in fact come to occupy
the position of a maker of law and has been correctly described as a 'third chamber of the
legislature, indeed, as a super legislature. Of course the U.S. Supreme Court has assumed
this position; it has not been specifically conferred upon it by the constitution.
Like the American Supreme Court, the Supreme Court of India enjoys the power of
Judicial Review' and this power has been specifically recognized by the constitution.
However its authority in relation to 'judicial review of legislation is more restricted than that
of the American Supreme Court.
The framers of the Indian constitution took good care not to embody the due process
of law clause in the constitution. On the contrary, the Indian constitution refers it to
'procedure established by law'. It can invalidate laws if they violate provisions of the
constitution but not on the ground that they are bad laws. In other words the Indian Judiciary
including the Supreme Court is not a Third Chamber claiming the power to sit in judgement
on the policy embodied in the legislation passed by the legislature
A Court cannot take up a matter for judicial review sua moto. It has to wait till
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2. The Court cannot enter into policy decisions of the government such as the economic
policy. Also matters involving political questions cannot be decided by the Court.
Only disputes inter parties can be decided by the Court.
3. The Constitution is the supreme law of the land and all state organs Legislature and
Executive are bound by it. The Constitution has provided for separation of powers
between the Legislature, Executive and Judiciary and therefore each organ must act
within the limits prescribed for it. The Courts as interpreter of Constitution and arbiters of
legal disputes may declare any law made by Legislature or any act of the Executive
as unconstitutional if it violates the limits placed by Constitution. In doing so the
Courts have to give due regard to the powers and autonomy of the other organs. For
example Courts presume that Legislature acts are constitutional unless proved otherwise and
they interfere only in clear cases. But the cases are not always clear and therefore an
unending debate continues on the role of Courts in judging an act of the Legislature and
Executive as unconstitutional.
4. The main controversy is that whether amendment of the Constitution is subject to
judicial review. Art 13(4) which was added by the Constitution 24 th Amendment Act,
1971 explicitly states that nothing in Art 13 shall apply to any amendment of this
Constitution made under Art 368. The same Amendment Act also added clause (3) to Art 368
which states that nothing in Art 13 shall apply to any amendment made under this
article.
In Golak Nath v. State of Punjab, the constitutional validity of Constitution (17 th
Amendment) Act was challenged. The Supreme Court by 6:5 held that the word law
in Art 13(2) included amendments to the Constitution and consequently if an
amendment abridged or took away a Fundamental Right guaranteed by Part III of the
Constitution, the amending Act itself was void and ultra vires.
To neutralize the effect of Golak Nath, 24th Amendment Act and 25th Amendment Act
(Art 31-C was added).
In Keshavananda Bharati v. State of Kerala, the constitutional validity of 24 th and
25th Amendment Act was challenged in the Supreme Court. The Supreme Court overruled the
Golak Naths case and it was unanimously held that the Constitution 24 th Amendment
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Act was valid. All the judges agreed that under the amended Art 368 all provisions of the
Constitution including those enshrining Fundamental Rights could be amended.
However, the majority of 7:6 being invalidated on the ground that it violates the
basic structure.
In I. R. Coelha v. State of Tamil Nadu, a nine Judge Constitution Bench held that any law
placed in the 9th Sch. after Apr 24, 1973 when Keshavananda Bharatis judgment was
delivered will be open to challenge. The Court said that even though on Act is put in the 9 th
Sch. by a Constitution Amendment its provisions would be open to challenge on the ground
that they destroy or damage the basic structure.
Thus, the judiciary plays an important role as custodian of the rights of the citizens. In a
federal Constitution it has another important role of determining the limits of the powers of
the Centre and the States. It is therefore necessary that the Judiciary should be independent
and free from the influence of the Executive.
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The pre-dominant method of enforcement of constitutional right is through writs. Art 32 and
226 of the Constitution have empowered the Supreme Court and high courts to determine the
question of constitutionality of legislative acts as well as the administrative acts.
2). If a statute is ultra vires it can be so declared and the Supreme Court can prohibit the
enforcement of the ultra vires statute infringing the Fundamental Right.
3). A petition cannot be refused merely on the grounds that wrong writ has been prayed.
4). Art 32 does not give the Supreme Court the appellate jurisdiction as envisaged in Art 136
to 139 of the Constitution.36
The case of Ujjam Bai v. State of Uttar Pradesh has been explained by Justice Hidayatullah in
the case of Coffee Board, Bangalore37.
Art 32 may be availed in the case of:
1.
2.
3.
4.
The fourth point has been settled by a majority decision of the Supreme Court in the case
of Naresh Shridhar Mirajkar v. State of Maharashtra38 , the court held that such a coarse
was not available to the aggrieved party. In the same case Hidayatullah j. gave the
dissenting judgment, his line of approach was quite different. He observed: when the
High Court Judge acts collaterally to cause a breach of Fundamental Right I am clear that
an approach to this court is open under Art 32.
Pre requisite for appealing in High Court under Art 226 is that there must have been presence
of a right39 and it must have been infringed and the right infringed must be a personal right40
Objectives
The ostensible purpose of judicial review is to vindicate some alleged right of one of the
parties to litigation and thus to grant relief to the aggrieved party by declaring an enactment
void, if in law it is void, in the judgment of the court. But the real purpose is something
higher, ie, no statute which is repugnant to the Constitution should be enforced by the Court
of law. It is the most effective process of adapting and adjusting the rights of the individuals
and of the State.
Removes Misunderstanding
In India, the Constitution-makers visualized the great purpose of judicial review of
Legislative acts, without which the Indian democracy would not have thrived. The Court of
law have strengthened the hands of the law makers by declaring the unconstitutional acts be it
legislative or any other void.
41 Charles Grove Haines and Foster H Sherwood, The Role of the Supreme Court
in American Government and Politics,1835-1864, p. 287-8
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CONCLUSIONS
The Supreme Court of India is no doubt the finale interpreter of the constitution as we have
studied and analysed from many cases. It is playing a role of protector and working at its
best. With its intellect and time our supreme court has achieved a lot more than bare rigid law
interpreter made by the legislation. Now with its power of judicial review and judicial
activism this court is doing a lot for the social welfare. It has become the last resort for the
weak sections of the society.
But on the other hand this law making power in the hands of the judiciary is posing a threat to
the state constitutionalism. India is following constitution and its spirit is to establish
constitutionalism in the country. But this power of the Supreme Court can lead to the
country where judiciary will be the head. It is synonymous of creating a third chamber of
legislation, which is against the principle of constitutionalism i.e. idea of limited government
where a organ of the government can be checked on the ground of being arbitrary.
So in the end I would like to say that this power requires a sense of causation while
exercising it. Court should not act arbitrarily. great powers bring great responsibilities, this
quotation of some scholar can guide the court while using its powers.
After a reasonably detailed study of the above concepts, the amendments and the cases stated
therein, it is only natural come to the conclusion that the Indian constitution holds the idea of
Judicial Review in high esteem though legislations over the time have shown that the same
could not be upheld as there was a lack of Judicial Activism at the earlier period of time. The
Constitution of India has been established as supreme and the basic structure that has been
highlighted in the Preamble of the same has been seen as utopian in nature thus keeping it out
of the ambit of any sort of legislation, it forms the guiding light for those who propound the
idea of Judicial review along with Part III of the constitution.
BIBLIOGRAPHY
1. All India Reporters
2. Supreme Court Cases
3. Journal Of Law & Policy, Vol6, 2001,
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4. Upender Baxi, Taking Suffering Seriously: Social Action Litigation In The Supreme
Court Of India
5. Madhav Godbole, The Judiciary And Governance In India, Rupa.Co., New Delhi,
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DYNAMIC WEBSITES:
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www.manupatra.com
www.heinonline.com
www.scconline.com
www.indiankanoon.com
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