Judicial Review

Judicial Review

Notes

Judicial review is the power of the courts to examine the constitutionality of legislative and executive acts and to declare them void if they violate the Constitution. It originated in the US case Marbury v Madison (1803). The Indian Constitution does not use the term, but it is derived from Art. 13 (laws inconsistent with Fundamental Rights are void), Art. 32 and 226 (writs), Art. 131-136 (jurisdiction of the Supreme Court), Art. 246, 251, 254 (division of powers) and Art. 372. It is part of the basic structure.

Scope

• Legislative action: violation of Fundamental Rights, of the distribution of powers between the Union and States, or of any other constitutional provision.
• Administrative action: arbitrariness, illegality, irrationality, procedural impropriety (natural justice).
• Judicial decisions: the Supreme Court can review its own decisions (review, curative petition) and High Courts' decisions.
• Constitutional amendments: can be struck down if they violate the basic structure.

Landmark cases

• Shankari Prasad (1951) and Sajjan Singh (1965): Parliament can amend Fundamental Rights.
• Golaknath (1967): Parliament cannot amend Fundamental Rights (overruled).
• Kesavananda Bharati (1973) (13 judges, 7:6): Parliament can amend any provision but not the basic structure.
• Indira Gandhi v Raj Narain (1975): the 39th Amendment (election of PM beyond judicial scrutiny) was struck down.
• Minerva Mills (1980): limited amending power and judicial review are basic features.
• S.R. Bommai (1994): the President's satisfaction on imposing Art. 356 is subject to judicial review.
• L. Chandra Kumar (1997): judicial review by the High Courts and Supreme Court is a basic feature; tribunals cannot oust it.
• I.R. Coelho (2007): laws placed in the Ninth Schedule after 24 April 1973 are open to judicial review if they violate the basic structure.
• NJAC case (2015): the 99th Amendment and the NJAC Act were struck down.

Limits and doctrines: the political question doctrine (courts avoid purely political matters); courts cannot question proceedings of Parliament (Art. 122) or the advice given to the President (Art. 74(2)). Related doctrines: pith and substance, colourable legislation, severability, eclipse, prospective overruling.

Key Points

• Derived from Art. 13, 32, 226 and others; basic structure.
• Kesavananda (1973) and Minerva Mills (1980) protect judicial review.
• I.R. Coelho (2007): the Ninth Schedule is reviewable post-24 April 1973.
• Bommai (1994): Art. 356 is reviewable.
• Origin: Marbury v Madison (USA).

MCQs

Q1. The concept of judicial review originated in: (a) Britain (b) Marbury v Madison (USA) (c) Ireland (d) France Ans: (b). 1803.

Q2. In Kesavananda Bharati, the bench strength and the decision were: (a) 11 judges, 6:5 (b) 13 judges, 7:6 (c) 9 judges, 5:4 (d) 7 judges, 4:3 Ans: (b).

Q3. In I.R. Coelho (2007), the Supreme Court held that laws placed in the Ninth Schedule after which date are subject to judicial review? (a) 26 January 1950 (b) 24 April 1973 (c) 25 June 1975 (d) 20 April 1978 Ans: (b).