Legal studies Revision notes- Courts and Judicial Review: Safeguarding India's Constitutional Democracy

Imagine a world where the government could pass any law, no matter how unfair, without any checks or balances. Thankfully, we live in a society governed by the rule of law, where the power is divided and balanced. Judicial review is a cornerstone of this system, empowering courts to ensure that the government acts within the boundaries set by the constitution.

Judicial Review: The Cornerstone of India's Checks and Balances 

What is Judicial Review?

Judicial review is the authority of courts to examine the actions of the legislature (lawmakers) and executive (government officials) to determine if they are consistent with the constitution.  In essence, it's a check on power, ensuring the government doesn't overstep its bounds.

Judicial Review - 

➡ Legal doctrine or a practice whereby a court can examine or review an executive or a legislative 

➡To determine if the act is incompatible with the constitution. 

➡Countries, like the U S, France and Canada, judicial review allows the court to invalidate or nullify the law 

➡In the United Kingdom, the courts do not have authority to nullify or invalidate legislation of the Parliament. 

Separation of Powers - 

➡Separation of powers horizontally among–the legislative, the executive, and judiciary. 

Advantages: 

1) it allows for liberty and avoids concentration of powers 

2) promotes efficiency; 

3) It facilitates checks and balances of each branch. 

Separation of Powers vs. Doctrine of Division of Powers: Key Differences

Separation of Powers:

➡Horizontal division of powers among legislative, executive, and judicial branches

➡Enables checks and balances within the national government

Doctrine of Division of Powers:

➡Vertical distribution of powers between the central/federal and state/provincial governments

➡Ensures proper division of authority between the center and the states/provinces

Scope of Judicial Review in India

➡ Judicial review is one of the essential features of the Indian Constitution. 

➡The power of judicial review is available to the Supreme Court and the High Courts 

➡Scope of judicial review in courts 

1) protection of fundamental rights 

2) matters between the centre and states; 

3) fairness in executive acts. 

Key Constitutional Provisions Enabling Judicial Review in India

Article 13(2)

"The State shall not make any law which takes away or abridges the rights conferred by this Part (Part III - Fundamental Rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void." 

Article 32 

➡It offers the Supreme Court the power to enforce fundamental rights,

➡the Supreme Court derives authority to issue directions or order or writs in the nature of: 

1) Habeas corpus

➡to order the release of person is unlawfully detained; 

2) Mandamus

➡to order to a public authority to do its duty; 

3) Prohibition

➡to prevent a subordinate court from continuing on a case; 

4) Quo warranto

➡to issue directive to a person to vacate an office wrongfully occupied; and 

5) Certiorari

➡to remove a case from a subordinate court and get the proceedings before it.

B. R. Ambedkar, has termed this provision as the 'heart of the Constitution'. 

Article 226

➡Like Article 32, Article 226 is a parallel provision for High Courts in states for the enforcement of fundamental rights. 

Role of Judicial review in Centre-State Relations

➡Article 246 of the Constitution provides that the Parliament can make laws with respect to matters in the 'Union List' (List 1 of the Seventh Schedule of the Constitution). 

➡Parliament and the Legislature of any State have powers to make laws matters in the 'Concurrent List' (List III of the Seventh Schedule of the Constitution). 

➡State Legislature can make laws with respect to matters in the 'State List' (List II of the Seventh Schedule). 

Principles Guiding Judicial Review

Beyond the constitutional provisions, certain principles guide the application of judicial review in India:

'Principles of natural justice'

➡There is a Latin phrase audi alteram partem, which literally means 'listen to the other side'. 

➡Landmark decision of Maneka Gandhi v. Union of India. 

Background: 

➡Her passport was confiscated by the governmental authorities without giving her any chance of prior hearing. 

➡Supreme Court held that hearing should have been given to the petitioner in the interest of the principles of natural justice. 

➡Hearing was given and the passport was returned to her. 

Principle of reasonableness 

➡Established in the landmark case of Keshavanda Bharathi v. State of Kerala, this doctrine protects the core, unalterable features of the Constitution, such as secularism and federalism. The doctrine ensures that amendments to the Constitution cannot fundamentally alter its essential character. The Supreme Court has also held judicial review itself to be a part of the basic structure, safeguarding its role in protecting fundamental rights.Courts can review government decisions to ensure they are reasonable and not arbitrary. This principle prevents the government from acting on whims or basing decisions on irrelevant factors.

Principle of proportionality

➡Utilized by courts in administrative law, especially in service matters,

➡Essentially, judicial review offers safeguards to the aggrieved against any sentence or punishment that is disproportionate and burdensome. 

➡For example, Supreme Court, in a case, has held that the quantum of penalty or punishment sentenced by a court martial on any army persons should not be disproportionate to the offence. 

Principle of Basic Structure 

➡matters concerning the constitutional amendments by developing the doctrine of the basic structure of the Constitution. 

➡Article 368 confers power to the Parliament to amend the Constitution: "«by way of addition, variation or repeal any provision of this Constitution«" 

➡Article 13(2) states that "the State shall not make any law which takes away or abridges the rights conferred by this Part (Part III - Fundamental Rights)." 

➡in 1971, the Parliament adopted the 24th Amendment to the Constitution altering Articles 13 and 368 in a way that allowed itself with unlimited powers of amendments including authority to amend the fundamental rights provisions. 

➡The landmark 1973 Supreme Court case of Keshavanda Bharathi v. State of Kerela discussed the question about the unlimited constitutional amendment powers of the Parliament and established the doctrine of the basic structure or feature of the constitution. 

➡This doctrine invalidates any constitutional amendments that destroys or harms a basic or essential feature of the Constitution, like secularism, democracy and federalism. 

➡Supreme Court has also held judicial review to be the basic structure or feature of the Constitution; as a result, it can nullify any constitutional amendment that abolishes or disregards judicial review in issues concerning to fundamental rights of citizens

In conclusion, judicial review acts as a vital safeguard in a democracy. It empowers courts to ensure government actions and laws comply with the constitution, protecting fundamental rights, promoting fairness, and maintaining the balance of power. This crucial tool helps maintain a just and equitable society.

MCQ TEST on Judicial Review of Indian Judiciary