6.7. Power of Judicial review

The Supreme Court can declare legislative enactments of the Centre and states and any executive orders as null and void if they violate the Constitution (ultra-vires in nature). Judicial review serves the purpose of upholding supremacy of constitution, maintaining federal equilibrium, and to protect the fundamental rights of citizens. The Supreme Court used this power (Judicial activism) in various cases like Golaknath case (1967), The Bank Nationalization case (1970), The Kesavananda Bharati case (1973), the Minerva Mills case(1980), etc.

The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court on the following three grounds:

i. It infringes the fundamental rights (Part III);

ii. It is outside the competence of the authority, which has framed it; and

iii. It is repugnant to the constitutional provision.

Interestingly, though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, the provisions of several articles explicitly confers the power of judicial review on the Supreme Court.

To understand the process and basis of judicial review we need to know the details of the two doctrines, namely ‘Procedure established by Law’ and ‘Due process of Law’, which are discussed earlier.

Some other important doctrines, which are used in case of judicial review are: Doctrine of Severability

Article 13(1) and (2) use the words to the extent of inconsistency or contravention, while stating that a law violating a fundamental right shall be void. The words ‘to the extent’ restrict the effect of inconsistency or contravention. These words have made it clear that only that part of law would become void which is repugnant, subject to the doctrine of Severability. The doctrine of Severability is that if the offending provision of an Act, which is contrary to a fundamental right or is unconstitutional, is severable from rest of the act, only the offending provision would be declared null and void and not the whole act.

Doctrine of Progressive Interpretation

This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes. If constitutional interpretation adheres to the framer’s intent and remains rooted in the past, the Constitution would not be reflective of the society and eventually fall into disuse. The Supreme Court follows the doctrine of progressive interpretation and that is quite evident in the case of Art. 21; interpretation of Article 21, the Right to Life, has been changing consistently according to the society