Judicial review: notions, foundations and theories

1. Meaning and kinds

Judicial review is the power of a court to examine the acts of the legislature and the executive and to declare them invalid if they are contrary to the Constitution or, for executive action, to the law. It has three objects in India:

• legislation — tested for legislative competence and for consistency with Part III and other constitutional limits;
• constitutional amendments — tested against the basic structure;
• administrative action — tested for illegality, irrationality and procedural impropriety, and for proportionality where rights are affected.

Mark Tushnet distinguishes strong-form review, where the court’s ruling on the Constitution is final unless the Constitution is amended (the United States, India), from weak-form review, where the legislature may respond by ordinary means (the United Kingdom’s declarations of incompatibility, Canada’s override clause).

2. Origins

The idea that a higher law limits ordinary law is old; Coke in Dr Bonham’s Case (1610) suggested that the common law would control an Act of Parliament against common right and reason, but the English constitution went the other way, to the sovereignty of Parliament that Dicey later described. The modern doctrine begins in the United States. Alexander Hamilton, in Federalist No. 78, argued that the judiciary, having neither force nor will but only judgment, was the least dangerous branch, and that courts must prefer the Constitution to a statute that conflicts with it. Chief Justice Marshall adopted the argument in Marbury v. Madison (1803): it is emphatically the province and duty of the judicial department to say what the law is, and a law repugnant to the Constitution is void. The US Constitution says nothing express about the power; it was inferred from the written, supreme Constitution and the judicial oath.

3. The Indian foundations

India did not need to infer the power. It is written into the text:

• Article 13 — laws inconsistent with or in derogation of fundamental rights are void to the extent of the inconsistency;
• Articles 32 and 226 — the writ jurisdictions of the Supreme Court and the High Courts, Article 32 being itself a fundamental right;
• Articles 245 and 246 with the Seventh Schedule — federal limits on competence, which require an umpire;
• Articles 131 to 136, 141 and 142 — the Supreme Court’s original, appellate and special leave jurisdictions, the binding force of its law, and its power to do complete justice.

The early Court described its role with care. In State of Madras v. V.G. Row, 1952 INSC 19, Patanjali Sastri C.J. said that the courts, in reviewing restrictions on fundamental rights, act as sentinels on the qui vive under an express constitutional duty, not out of any desire to tilt at legislative authority.

The extension to constitutional amendments

1. Sri Sankari Prasad Singh Deo v. Union of India, 1951 INSC 47 — an amendment under Article 368 is not “law” under Article 13, so it cannot be tested against Part III.
2. I.C. Golak Nath v. State of Punjab, 1967 INSC 45 — reversed this: Parliament cannot amend to take away or abridge fundamental rights.
3. Kesavananda Bharati v. State of Kerala, 1973 INSC 91 — Parliament may amend any part, but not so as to destroy the basic structure.
4. Indira Nehru Gandhi v. Raj Narain, 1975 INSC 272 — the basic structure applied to strike down the clause of the Thirty-ninth Amendment that placed the Prime Minister’s election beyond challenge.
5. Minerva Mills v. Union of India, 1980 INSC 142 — struck down clauses (4) and (5) of Article 368, inserted by the Forty-second Amendment, which tried to exclude review of amendments; limited amending power and judicial review are themselves part of the basic structure.
6. L. Chandra Kumar v. Union of India, 1997 INSC 288 — the review jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is part of the basic structure and cannot be ousted by vesting it exclusively in tribunals.

4. Standards of review

Review is not one test. The intensity varies with what is at stake.

Alongside these, courts use doctrines of restraint: the presumption of constitutionality, reading down to save a statute, severability, and reluctance to review matters of economic policy. How strictly a court applies the tests is where activism and restraint show themselves.

5. Theories of judicial review

• Thayer’s clear mistake rule (1893): a court should strike down a law only when the legislature has made a very clear mistake, so clear that it is not open to rational question.
• Bickel’s counter-majoritarian difficulty (The Least Dangerous Branch, 1962): review is a deviant institution in a democracy, justified only because courts can protect enduring values; hence his “passive virtues”, the techniques for declining to decide.
• Ely’s representation-reinforcement (Democracy and Distrust, 1980): courts should not impose substantive values but should police the democratic process, clearing the channels of political change and protecting discrete and insular minorities.
• Dworkin’s moral reading: constitutional rights state moral principles, and courts are the forum of principle; majority rule is not the whole of democracy.
• Waldron’s case against judicial review (“The Core of the Case against Judicial Review”, 2006): in a society with working democratic institutions and reasonable disagreement about rights, there is no reason to prefer the votes of judges to the votes of representatives. Tushnet’s Taking the Constitution Away from the Courts (1999) argued similarly.

The Indian debate. The Constituent Assembly chose “procedure established by law” over “due process” partly to keep courts out of social and economic legislation, after B.N. Rau’s discussions with Justice Frankfurter in the United States. The early clashes over land reform and the Ninth Schedule were a contest between Parliament’s claim to carry out the Directive Principles and the Court’s duty to enforce Part III. The basic structure doctrine answers Waldron’s challenge in Indian terms: review of amendments protects the democratic constitution itself against a transient majority, which is close to Ely’s reason for review.

6. Comparative models

How this is examined

“Explain the notion of judicial review and its role in constitutional adjudication” or a short note on judicial review. Give the definition and kinds, Marbury, the Indian articles, the six-case line on amendments, the standards table, and two or three theories (Thayer, Bickel, Ely, Waldron) applied to India. Close with a view: the Indian Court’s review is justified most strongly where it protects the democratic process and fundamental rights, and least where it substitutes its view of policy.