What do you understand by “judicial review” in Indian context? Enumerate the key provisions in the constitution with respect to judicial review in India. (15 marks)

Approach

  • Introduce with the meaning of judicial review
  • Briefly note the grounds for judicial review
  • Explain key provisions of the constitution with respect to judicial review in India.
  • Conclude appropriately

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Model Answer :

Judicial review is the power of the Supreme Court and the High Courts to examine the constitutionality of the Acts of the Parliament and the state legislatures and executive orders both of the centre and state governments. If the Acts, rules or actions are found to be ultra vires to the constitution, then such actions are declared null and void by the judiciary.

The constitutional validity of a legislative enactment or an executive order may be challenged on the following grounds:

  • Violation of fundamental rights
  • Outside the competence of the authority which has framed it
  • Repugnant to the Constitutional provisions

In Keshavanand Bharti’s case, it was held that the judicial review is a ‘basic feature’ of the constitution and cannot be amended. Though 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. Some of the important provisions include:

  • 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 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.
  • Articles 251 & 254: Provides that in case of a conflict between the central law and state law, the central law prevails over the state law and the state law shall be void.

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 recently in the 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.

Subjects : Polity

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