5.4. Judicial Review

Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India.

Judicial Review is the power of the Judiciary by which:

♤ The court reviews the laws and rules of the legislature and executive in cases that come before them; in litigation cases.

♤ The court determines the constitutional validity of the laws and rules of the government; and

♤ The court rejects that law or any of its part which is found to be unconstitutional or against the Constitution.

Judicial Review is an essential and very useful system for Indian liberal democratic and federal system. It has been playing an important and desired role in the protection and development of the Constitution as follows:

♤ Maintain supremacy of the Constitution: Judicial Review is essential for maintaining the supremacy of the Constitution as any law if is in contradiction with the provisions of the Constitution, is declared void.

♤ Check misuse of power by legislature and executive: It is essential for checking the possible misuse of power by the legislature and executive.

♤ Protect rights and maintain federal balance: Judicial Review is a device for protecting the rights of the people. It is also important for judiciary as an arbiter between the centre and states for maintaining the federal balance.

♤ Strengthen judiciary: The grant of Judicial Review power to the judiciary is also essential for strengthening the position of judiciary. It is also essential for securing the independence of judiciary.

♤ Fulfill constitutional duties: The power of Judicial Review has helped the Supreme Court of India in exercising its constitutional duties.

Judicial review system has been criticized as follows:

♤ Undemocratic: The critics describe Judicial Review as an undemocratic system as it empowers the courts to decide the fate of the laws passed by the legislature, which represent the sovereign, will of the people.

♤ Lack of Clarity: The Constitution of India does not clearly describe the system of Judicial Review. It rests upon the basis of several articles (like Articles 32 and 136 for Supreme courts and Articles 226 and 227 for High courts) of the Constitution.

♤ Source of Administrative Problems: If a law is struck down by the Supreme Court as unconstitutional, the decision becomes effective from the date the judgement is declared. Now, the same law can face Judicial Review only when the question of its constitutionality arises which may happen after any amount of time say 5-10 years. Thus, change in constitutionality of the law with time may lead to various administrative problems.

♤ Reactionary: Judicial Review system has been criticized as a reactionary system because while determining the constitutional validity of a law, the Courts often adopts a legalistic and conservative approach. It can thus reject progressive laws enacted by the legislature.

♤ Delaying System: Judicial Review can be a source of delay and inefficiency.

♤ Tends to make the Parliament less responsible: The critics further argue that the Judicial Review can make the Parliament irresponsible as it can decide to depend upon the Courts for determining the constitutionality/ reasonableness of a law passed by it.

♤ Fear of Judicial Tyranny: It is not reasonable to allow a single judge’s reasoning to determine the fate of a law which had been passed by a majority of the elected representatives of the sovereign people.

♤ Reversal of its own decisions: Reversals of earlier decisions by the courts reflect the element of subjectivity in the judgments. For instance: The judgment in the Golaknath case reversed the earlier judgments and the judgment in the Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment was held valid, then invalid and then again valid.

Some of the important cases:

♤ In Suman Gupta v. State of Jammu and Kashmir, the respective State Government reserved certain seats in medical colleges for the students residing in the particular state on reciprocal basis, this policy of state was challenged on the ground that it discriminate among the students on the ground of place of birth.

Court’s ruling: The Supreme Court rejected the policy on the ground of discrimination but meanwhile the students who are the beneficiaries of this policy had completed their substantial education, and now it is not in the interests of justice to cancel their admission, therefore here supreme court applied the doctrine of prospective overruling and held that the government must not apply the impugned policy from next academic year.Therefore, by using the doctrine of prospective overruling in the above to cases, the Supreme Court maintained the balance between judiciary and other organs of the government. It can also be maintained by using the self-restraint by the judges.

♤ In Divisional Manager, Aravali Golf club v. Chander Hass and Another, the Supreme Court

warned the High court for it’s over activism.

Court’s ruling: The Supreme Court held that since there was no sanctioned post of tractor driver against which the respondents could be regularized as tractor driver, the direction of the first appellate court and the single judge to create the post of tractor driver and regularizing he services was completely beyond their jurisdiction. The court cannot direct the creation of post. Creation and sanction of post is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. The court further said that the creation of a post is an executive or legislative function and it involves economic factors. Hence, the courts cannot take upon themselves the power of creation of post.

♤ Similarly, in Madhu Holmagi v. Union of India, wherein one Advocate filed a public interest litigation challenging the “Agreement 123” i.e. Indo-US nuclear treaty proposed to be entered by the Indian government, petitioner contended that court must have to scrutinize the all documents relating to the agreement 123 and must have to prevent the Indian government from entering in to the nuclear deal.

Court’s ruling: In this court dismissed the petition and also imposed a cost of Rs. 5000 on the petitioner stating that it is an abuse of court proceeding. Because the question raised by the petitioner is a question of policy decision, which is to be decided by the parliament and not by the judiciary.