Judicial Review in India

Judicial Review in India

Literally the notion of judicial review means the revision of the decree or

sentence of an inferior court by a superior court. Judicial review has a more

technical significance in pubic law, particularly in countries having a written

constitution, founded on the concept of limited government. Judicial review in this

case means that Courts of law have the power of testing the validity of legislative

as well as other governmental action with reference to the pr ovisions of the

constitution.

In England, there is no written constitution. Here the Parliament exercises

supreme authority. The courts do not have the power to review laws passed by

the sovereign parliament. However, English Courts review the legality of

executive actions. In the United States, the judiciary assumed the power to

scrutinise exec utive actions and examine the constitutional validity of legislation

by the doctrine of ‘due process’. By contrast, in India, the power of the court to

declare legislative enactments invalid is expressly enacted in the constitution.

Fundamental rights enumerated in the Constitution are made justiciable and the

right to constitutional remedy has itself been made a Fundamental right.

The Supreme Court’s power of judicial review extends to constitutional

amendments as well as to other actions of the legislatures, the executive and the

other governmental agencies. However, judicial review has been particularly

significant and contentious in regard to constitutional amendments. Under Article

368, constitutional amendments could be made by the Parliament. But Article 13

provides that the state shall not make any law which takes away or abridges

fundamental rights and that any law made in contravention with this rule shall be

void. The issue is, would the amendment of the constitution be a law made by

the state? Can such a law infringing fundamental rights be declared

unconstitutional? This was a riddle before the judiciary for about two decades

after India became a republic. 

In 1970, when the Supreme Court struck down some of Mrs Indira Gandhi’s

populist measures, such as the abolition of the privy purses of the former princes

and nationalisation of banks, the Prime Minister set about to assert the

supremacy of the Parliament. She was able to give effect to her wishes after

gaining two-thirds majority in the 1971 General Elections. In 1972, the Parliament

passed the 25th Constitutional Amendment act which allowed the legislature to

encroach on fundamental rights if it was said to be done pursuant to giving effect

to the Directive Principles of State Policy. No court was permitted to question

such a declaration. The 28th Amendment act ended the recognition granted to

former rulers of Indian states and their privy purses were abolished.

One of the limits on judicial review has been the principle of locus standi. This

means that only a person aggrieved by an administrative action or by an unjust

provision of law shall have the right to move the court for redressal. In 1982,

however, the Supreme Court in a judgement on the democratic rights of

construction workers of the Asian Games granted the Peoples Union of

Democratic Rights, the right of Public Interest Litigation (PIL). Taking recourse to

epistolary jurisdiction under which the US Supreme Court treated a post card

from a prisoner as petition, the Supreme Court of India stated that any ‘public

spirited’ individual or organisation could move the court even by writing a letter.

In 1988, the Supreme Court delineated the matters to be entertained as PIL. The

categories are: matter concerning bonded labour, neglected children, petition

from prisoners, petition against police, petition against atrocities on women,

children, Scheduled Castes and Scheduled Tribes, environmental matters,

adulteration of drugs and foods, maintenance of heritage and culture and other

such matters of public interest.

Since the granting of the right to PIL, what some claim to be the only major

democratic right of the people of India, and granted not by the Parliament but by

the judiciary, the courts have been flooded by PILs. While the flood of such

litigation indicates the widespread nature of the deprivation of democratic rights.