UPSC Express

The concept of judicial review originated in the USA. It is the power of the judiciary to test the constitutionality of the legislative or executive actions of the government. If the actions are found to be ultra vires to the constitution, then such actions are declared null and void by the judiciary.

The importance of the judicial review in Indian democracy:

1. To uphold the supremacy of the Constitution of India.
2. To ensure that the spirit of cooperative federalism and adequate balance between powers of centre and states are maintained.
3. The fundamental rights of the citizens are protected by the courts by ensuring the guarantees given by the constitution are upheld.
4. The courts can interpret the ambiguous provisions of the constitution so that the government actions do not transgress the constitution.

Despite the term judicial review is not used in the constitution of India, there are many provisions in the constitution conferring this power to the judiciary:

• Article 13: All laws inconsistent with the Fundamental Rights shall be null and void.
• Article 32: It guarantees the right to move the Supreme Court for the enforcement of the Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs for that purpose.
• Article 226: High Courts can issue directions or orders or writs for the enforcement of the Fundamental Rights and for any other purpose.
• Article 131: Provides for the original jurisdiction of the Supreme Court in the centre–state and inter-state disputes.
• Article 132-134: Provides for the appellate jurisdiction of the Supreme Court in constitutional cases, civil cases and criminal cases.
• Article 143: The President can seek the opinion of the Supreme Court on any question of law or fact and on any pre-constitution legal matters.
• Article 227: The High Courts have the power of superintendence over all courts and tribunals within their respective territorial jurisdictions except military courts and tribunals.
• Article 245: Dealing with the territorial extent of laws made by Parliament and by the Legislatures of States.
• Article 246: Dealing with the subject matter of laws made by Parliament and by the Legislatures of States.

Dr. B.R. Ambedkar had described the provisions related to judicial review as the ‘heart of the Constitution’. This power of judicial review has been utilised by the courts of India over time in cases like the Bank Nationalisation case(1970), Keshavananda Bharti case(1973) and very recently in NJAC case. However, the Supreme Court of India has cautioned the judges to respect and not encroach upon the domain of other organs of government by exercising restraint in using these powers.