Judicial review - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Connect it to constitutionalism. Judicial review is the mechanism that makes limited government real. A Constitution that declares limits but leaves the legislature to judge its own compliance would be a Constitution without constitutionalism. That sentence will earn more than a list of Articles.

1. What judicial review is

Judicial review is the power of the courts to examine the actions of the legislature and the executive, and to declare them void where they exceed or contravene the Constitution. It rests on the premise that the Constitution is the supreme law, and that a law repugnant to it is not law at all.

Distinguish it from two neighbours. It is not an appeal: the court asks whether the action was constitutionally permissible, not whether it was the wisest course. And it is broader than judicial activism, which describes a style of exercising the power rather than the power itself.

2. Its constitutional basis in India

Unlike the United States, where judicial review was inferred by the Supreme Court in Marbury v. Madison (1803) without express textual warrant, in India it is written into the Constitution in several places:

Article 13 — laws inconsistent with fundamental rights are void, which presupposes some organ competent to declare them so.
Article 32 — the right to move the Supreme Court for enforcement of fundamental rights, itself a fundamental right.
Article 226 — the writ jurisdiction of the High Courts, wider than Article 32 because it extends beyond fundamental rights to “any other purpose”.
Articles 131 to 136 — the Supreme Court's original and appellate jurisdiction, including the discretionary power of special leave under Article 136.
Articles 245 and 246 with the Seventh Schedule — legislative competence, which the courts police in a federation.
Article 372 — continuance of pre-constitutional laws, subject to the Constitution.

3. The three grounds of review

A law or executive action may be examined on three broad grounds, and a good answer names them in order:

Legislative competence. Did the legislature have power to enact on the subject, under the Union, State or Concurrent List?
Violation of fundamental rights. Does the law take away or abridge a right in Part III, contrary to Article 13?
Violation of any other constitutional provision or limitation, including, for a constitutional amendment, the basic structure.

4. Judicial review is part of the basic structure

This is the proposition that carries the topic. In Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225, the Court held that the amending power under Article 368 cannot be used to destroy the basic structure — and judicial review is one of its elements.

The point was pressed home in Minerva Mills Ltd. v. Union of India, 1980 INSC 142, (1980) 3 SCC 625, where clauses (4) and (5) of Article 368 — inserted by the Forty-second Amendment to place amendments beyond challenge in any court and to declare the amending power unlimited — were struck down. A provision whose whole object is to oust review cannot survive, because limited power and the machinery for enforcing the limit stand or fall together.

In L. Chandra Kumar v. Union of India, 1997 INSC 288, (1997) 3 SCC 261, a seven-judge Bench held that the power of judicial review vested in the High Courts under Article 226 and in the Supreme Court under Article 32 is part of the basic structure. Clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they excluded the High Courts' jurisdiction over tribunal decisions, were held unconstitutional. Tribunals may act as courts of first instance, but their decisions remain subject to scrutiny by a Division Bench of the High Court. This is the case to cite for the proposition that review cannot be ousted by creating an alternative forum.

Finally, in I.R. Coelho (dead) by LRs v. State of Tamil Nadu, 2007 INSC 28, (2007) 2 SCC 1, a nine-judge Bench held that laws placed in the Ninth Schedule after 24 April 1973 are open to challenge on the ground that they damage the basic structure. Article 31-B cannot be used as a device to put a law beyond the Constitution.

5. Limits on the power

Judicial review is not unlimited, and saying so improves an answer that might otherwise read as uncritical praise.

Presumption of constitutionality. A statute is presumed valid, and the burden of showing invalidity lies on the person challenging it.
Policy is not reviewed. The wisdom, necessity or expediency of a law is for the legislature. Courts examine legality, not merit.
Political questions. Certain matters are committed to other organs, though the category has narrowed — in S.R. Bommai v. Union of India, 1994 INSC 111, (1994) 3 SCC 1, the Court held a Proclamation under Article 356 reviewable, rejecting the argument that it was purely political.
Article 122 and Article 212. Proceedings in Parliament and in State legislatures cannot be questioned on the ground of irregularity of procedure.
Self-restraint. Courts avoid deciding constitutional questions unnecessarily and prefer a construction that saves a statute.

6. The criticism, and the answer

Judicial review is criticised as undemocratic: unelected judges overriding an elected legislature. The answer runs in two parts. First, the judges are not overriding the legislature but enforcing the Constitution, which the people gave themselves and which the legislature is equally bound by. Second, review protects the very conditions of democracy — rights, elections, and the federal division — against transient majorities. A majority that could amend away the right to challenge it would not be a democracy for long.

How this is examined

As a short note: judicial review, or judicial review as a basic feature. As an essay: discuss the scope and limitations of judicial review under the Indian Constitution, often paired with a line about whether it makes the judiciary supreme over Parliament.

For that pairing, the correct answer is neither judicial supremacy nor parliamentary supremacy but constitutional supremacy: both organs are subordinate to the Constitution, and the court's role is to say where the line falls. Support it with Kesavananda, Minerva Mills and L. Chandra Kumar, and the answer is complete.

Now go and read the questions themselves: Constitutional Law I past question papers.