“We are governed by the constitution, but the constitution is what the judges say it is, and the judiciary is the tool to safeguard our liberty, and our property under the constitution.”
– Charles Evans Huges
The “judiciary” has the authority to evaluate laws and orders to assess their legality. This is known as “judicial review.” The judiciary also has the authority to have judgments and rulings executed. The above quotes indicate the importance of the judiciary. In today’s time, law plays a very significant role in the importance of the judiciary. “The Indian Constitution entrusted the judiciary with the responsibility of upholding and interpreting the Constitution. It grants an inherent authority to determine whether legislative and executive activities are constitutional. The doctrine of judicial review refers to this. The preservation of judicial review is what justifies maintaining a check and balance in government. Be a result, the judiciary is referred to as the Constitution’s Guardian.”Judicial review functions as a mechanism to stop these infractions when there is a violation of executive or legislative activity or any infringement of constitutional principles. Although the term “judicial review” is not used in the Indian Constitution, numerous of its clauses do define it. The American Constitution is where the notion of judicial review originated, although it isn’t applied just as strictly in other countries as it is in the USA, where it was first introduced. Therefore, the judiciary has the authority to lay down any law which was unconstitutional or contrary to the Indian constitution.
WHAT IS JUDICIAL REVIEW AND ITS CONSTITUTIONAL PROVISIONS IN INDIA
The “Marbury v. Madison case”, which took place in 1803, was the first use of the “judicial review theory”. The court noted that by ruling the law illegal, it limited the jurisdiction of the congressional branch and thereby constituted the supreme court. In India, judicial review was taken from the U.S Constitution. Review means “to look again”, while the words judicial imply “judgment”. As a result, judicial review is a notion based on the constitution that provides a court system the authority to void legislative or executive actions that the judges deem to be unlawful. According to Black’s Law Dictionary judicial review is “a court’s power to review the actions of other branches or levels of government; especially the court’s power to invalidate legislative and executive actions as being unconstitutional”. The primary goal of “judicial review” is to ensure that legislation approved by a legislative body does not violate the ultimate law, which is the Constitution. If a statute does violate the supreme law, it may be deemed unconstitutional. The question raised by the “judicial review” was thus whether the legislation that was passed was appropriately applied and whether the proper processes had been followed or not.
Some constitutional provisions in India related to the judicial review are:-
Articles 13, 32, 131-136, 143, 145, 226,245, 246, 251,372 and many more.
“Article 13 – this article mainly deals with the law that violates any provisions of the part of fundamental rights that are said to be void.”
“Article 32 – A person is entitled to constitutional remedies under Article 32, which implies that they can petition the Supreme Court to have their fundamental rights upheld.”
“Article 226 – According to Article 226, the high court has the authority to issue writs with the same legal standing as certiorari, quo warranto, mandamus, and writs of habeas corpus. For the enforcement of basic rights or any other reason, such directives, orders, or writs may be issued.”
“Articles 131 to 136 give courts the authority to resolve conflicts between people, between people and the government, and between states and the union. However, courts may also be asked to interpret the constitution, and the Supreme Court’s interpretation is regarded as the law by all other courts in the country.”
“According to Article 245 of the Constitution, the powers of the national and state legislatures are constrained by their respective constitutions. On that specific topic or if the law violates any basic rights, any legislation’s legality may be contested in court.”
JUDICIAL REVIEW CASES IN INDIA
There have been several important decisions made by Indian courts about “Judicial Review,” which will apply to both the state and the center. A few cases are:
- Shankari Prasad V. Union of India (1951)
“The Supreme Court, in this case, heard a petitioner’s appeal to the First Amendment Act of 1951 because the Act violated the petitioner’s “Right to Property,” and it was thus incompatible with Article 13(2)’s fundamental rights. Therefore, the court asserted that constitutional amendments are not subject to the judicial review authority, which is only applicable to ordinary legislation.”
- C. Golak Nath &Ors V. State of Punjab(1967)
In this instance, the court rejected the arguments made in the Sajjan Singh and Shankari Prasad cases, which disputed the constitutionality of the 17th Amendment Act of 1964. Consequently, the court ruled that the adjustments made under Article 368 fell under the purview of the Constitution’s Article 13 legislation.
- Kesavananda Bharti V. State of Kerala (1973)
Three constitutional amendments—the 24th, 25th, and 29th amendments—and their legality were contested in this case by the petitioner, Kesavananda Bharti. By overturning the Golaknath case, the court determined that the parliament lacked the authority to change the constitution’s fundamental provisions through the use of article 368.
- Minerva Mills V. Union of India (1980)
In this instance, the court ruled that the ability of the parliament to change the constitution’s fundamental provisions as well as the right to judicial review are both a component of such authority.
Some more famous cases are:
- R. Coelho V. State of Tamil Nadu
- K. Gopalan v. State of Madras
- Sajjan Singh V. State of Rajasthan
- Indira Nehru Gandhi V. Raj Narain
LIMITATIONS OF JUDICIAL REVIEW
By giving the court the authority to examine any law passed by the Parliament, judicial review serves as a means of maintaining the system of checks and balances between the judiciary and legislature. As it gives power to the judiciary to review the law made by the legislature but it has some limitations also. “Even when judicial review is initiated by a broad interpretation, it is nevertheless subject to constraints. An additional barrier to the Supreme Court’s rigor is the Constitution’s support of emergency regulations in situations where national security is imperiled. The national government’s and, more especially, the chief executive’s, powers are expanded during an emergency. The possibilities outlined in Article 19 are stopped during the declaration of Emergency and will remain so for the duration of the Emergency, as stated in Article 358. The constitutional clause no longer has any law-based restrictions on judicial or legislative power with Article 19 rights deferred in this way.”Judicial activism or judicial overreach results from the court going beyond its authority. Therefore, only laws passed by the legislative branch that is unconstitutional can be overturned by the judiciary. Any statute that the court rules are unconstitutional must be properly justified if the court makes this determination. In India, judicial review has these restrictions.
The judiciary served as the custodian of the Constitution and the protection of a person’s basic constitutional rights. In India, judicial review is a crucial component since it controls how the legislative and executive branches work. This is because our Indian Constitution’s judicial review mechanism is one of its most potent institutions. The “Supreme Court” will also issue several historic rulings regarding judicial review. In India, judicial review was thought of as the fundamental framework of the Constitution; as a result, any statute that is declared to contradict the Constitution’s legality is null and invalid. As the court served as the custodian of the constitution in India, where it is the highest law of the nation, no government institution could function efficiently without judicial scrutiny. To mediate disputes between the legislative and the executive branch of the government, judicial review is crucial. The concept of judicial review has ultimately been developed and integrated into the fundamental framework in the case of Minerva Mills v. Union of India. Last but not least, it is accurate to say that the goal of judicial review has changed to safeguard individual rights, stop the misuse of discretionary power, and prevent injustice.
Author(s) Name: Siddharth Raj (Amity Law School, Noida)
Priyadarshini Gunasekaran, ‘Everything about Judicial Review in India’(Lexforti, 22 April 2021) <https://lexforti.com/legal-news/judicial-review-in-india/> accessed 14 July 2022
Constitution of India, 1950, art.13
 Constitution of India, 1950, art.32
 Constitution of India, 1950, art.226
 Constitution of India, 1950, art.131-136
 Constitution of India, 1950, art.245
 Constitution of India, 1950, art.13(2)
Shankari Prasad v Union of India (1951), AIR 458
I.C. Golak Nath & Ors v State of Punjab (1961) SCR (2) 762
Kesavananda Bharti v State of Kerala (1973), AIR 1461
Minerva Mills v Union of India (1980), AIR 1789
I.R. Coelho v State of Tamil Nadu (2007), AIR 861
A. K. Gopalan v State of Madras (1950), AIR 27
Sajjan Singh v State of Rajasthan (1965) SCR (1) 933
Indira Nehru Gandhi v Raj Narain (1975) SCC (2) 159
 ‘Judicial Review and Its Limitation’ (Lexpeeps, 24 July 2021) <https://lexpeeps.in/judicial-review-and-its-limitation/> accessed 16 July 2022
Minerva Mills (n 10)