Judicial Review in India

Introduction

Judicial review is a significant weapon in the hands of judges. It consists of the power of a court to hold unenforceable and unconstitutional any law or order based upon such law or any other action by a public authority which is incompatible. The judicial review may be explained as a study of the doctrine of judicial review in action. Courts have power to strike down any law if it is unconstitutional and supremacy of law is soul of Judicial Review.

Court has power to review the actions of legislative and executive and also review the actions of judiciary. It is the power to scrutinize the validity of law or any action whether it is valid or not. This is a concept of Rule of Law. Judicial Review is the balance mechanism to maintain the separation of powers. Separation of power has planted the scope of Judicial Review. It is a significant weapon in the hands of the court to hold unenforceable and unconstitutional any law and order which is inconsistent or in conflict with the basic law of the land.

The judicial review is the concept of the power of rule and separation of law. It is highest attraction of the Indian Constitution. Every state action is required to be verified by the judiciary. There is no express provision for judicial review in Indian Constitution but it is an internal part of our constitutional system, and without it there will be no Government of laws and Rule of law would become a mockery delusion and a promise of futility. In India, Judicial Review is a power of court to set up an effective system of balance between legislature and executive. The Constitutional Provisions which assures judicial review of legislation are Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

The Indian Constitution accepted the Judicial Review on lines of U.S. Constitution. Parliament is not most important under the Constitution of India. Its powers are restricted in a manner that the power is divided between centre and states. The Supreme Court enjoys a position which invest it with the power of reviewing the legislative enactments of Parliament and the State Legislatures. This allows the court a powerful instrument of judicial review under the constitution. The political theory and text of the Constitution has permitted the judiciary the power of judicial review of legislation.

Judicial Review and the Basic Structure

In the prestigious case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of India the decided the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution, The Judges didn’t define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five basic features:

1. Supremacy of the Constitution. 
2. Federal character of the Constitution.
3.  Republican and democratic form of Government.
4. Separation of powers between the executive, the legislature and the judiciary.
5.  Secular character of the Constitution. 

He observed that these basic features are easily visible not only from the Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of freedom and dignity of the individual which could not by any form of amendment be destroyed. 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.

 In Indira Nehru Gandhi v. Raj Narayan (1975), case the statutory bench of the S.C.I., perceived that the disagreement of voting was not requirement for judicial assessment, because it is not the portion of the elementary construction in the Constitution.

In Sampath Kumar the Court further pronounced that if a law made under Article 323-A(1) were not to be considered in the jurisdiction of the High Court under Articles 226 and 227 without setting up an institutional mechanism or arrangement  for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

 In Kihoto Hollohan v. Zachillhur (1992), case the Supreme Court of India took away from judicial review the matter of disqualification of MLAs and MPs against the decision of Speaker/ Chairman. The court observed it is useless to articulate, on the discrepancy, whether judicial assessment is the uncomplicated assembly of the Indian Constitution.

In L. Chandra Kumar v. U. O. I. (1997), a bench of seven judges of the Supreme Court of India., pragmatic unquestionably, that the rheostat of review judicially, in the problem of legislative accomplishment to the under Article two hundred twenty-six to the High Court and the Supreme Court of India under Article thirty-two of the India’s Constitution, it is very important and significant feature of the Constitution of India, that the review judicially valuation is the assembly of the India’s Constitution.

Conclusion

Judicial review’s growth is the unavoidable response of the judiciary to ensure proper check on the exercise of public power. Growing and increasing awareness of the rights in the people; the trend of judicial scrutiny of every governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general recognition that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview.

The concept of judicial review of administrative action is inbuilt in our Constitutional scheme which is based on rule of law and separation of powers. It is examined to be the basic features of our Constitution, which cannot be revoked even by exercising the Constituent power of parliament. It is the most effective solution available against the administrative excesses. The Judges owe a duty to perform, which is even more burdensome to keep the judicial ship afloat on even keel. It should be remembered that a step taken in a new direction is agitated with the danger of being a likely step in a wrong direction.