Judicial Review in India [UGC-NET Political Science Notes]

Judicial review is a critical aspect of the Indian legal system. It empowers the judiciary to assess the constitutionality of legislative and executive actions. This mechanism serves as a guardian of the Constitution, ensuring that laws and policies align with the fundamental rights enshrined within it. About judicial review in India involves exploring its constitutional foundation, scope, landmark cases, types, limitations, and its evolving role in society.

Constitutional Basis

The foundation of judicial review in India is rooted in specific articles of the Constitution:

• Article 13: Declares that any law inconsistent with or in derogation of the fundamental rights is void. It empowers the courts to review laws and determine their constitutionality, forming the bedrock of judicial review.
• Article 32: Provides the right to constitutional remedies, allowing individuals to directly approach the Supreme Court for enforcement of fundamental rights. This includes the power to strike down unconstitutional laws.
• Article 226: Empowers the High Courts to issue writs for enforcement of fundamental rights and other legal rights, further strengthening the framework of judicial review.
• Article 141: States that the law declared by the Supreme Court is binding on all courts within India, ensuring uniformity in judicial review principles.
• Article 142: Grants the Supreme Court the authority to pass decrees or orders necessary for doing complete justice, which can involve judicial review in certain cases.
• Article 245 and 246: Define the legislative competence of Parliament and State Legislatures, allowing courts to review laws for any conflict or inconsistency with the Constitution.

Scope of Judicial Review

Judicial review encompasses several areas:

1. Review of Legislation: Courts assess the validity of laws passed by Parliament and State Legislatures.
2. Review of Executive Actions: The judiciary scrutinises actions taken by the executive to ensure legality and constitutionality.
3. Review of Constitutional Amendments: The Supreme Court can review amendments to ensure they do not violate the Constitution’s basic structure, as established in the Kesavananda Bharati case.

Landmark Cases

Several landmark cases have shaped the landscape of judicial review in India:

• Kesavananda Bharati v. State of Kerala (1973): This case established the Basic Structure Doctrine, asserting that Parliament cannot alter the fundamental framework of the Constitution.
• Minerva Mills v. Union of India (1980): This case reinforced the Basic Structure Doctrine and emphasised the balance between fundamental rights and directive principles.
• Maneka Gandhi v. Union of India (1978): This judgement expanded the interpretation of Article 21, establishing the principle of ‘due process’ in the protection of personal liberty.
• Indira Sawhney v. Union of India (1992): This case addressed the issue of reservations in education and employment, introducing the concept of the creamy layer.

Types of Judicial Review

Judicial review can be classified into two main types:

• Concrete Review: This involves reviewing specific cases presented before the court, where the judiciary assesses the legality of actions based on concrete facts.
• Abstract Review: This type entails reviewing laws or actions without a specific case. However, abstract review is not prevalent in the Indian context.

Limitations of Judicial Review

Judicial review is not absolute and has inherent limitations:

• Self-restraint: Courts often exercise restraint, particularly in matters of policy and governance, respecting the roles of other branches.
• Political Questions Doctrine: Courts may refrain from intervening in issues deemed political, recognising the separation of powers.
• Doctrine of Separation of Powers: This principle maintains respect for the distinct roles of the legislature and executive, limiting judicial overreach.

Judicial Activism vs. Judicial Restraint

The judiciary’s approach can vary between activism and restraint:

• Judicial Activism: Courts take an active role in protecting rights and addressing social issues. Public Interest Litigation (PIL) is a prime example of this approach.
• Judicial Restraint: Courts limit their own power, deferring to the legislature and executive, particularly in policy matters.

Role of Public Interest Litigation (PIL)

Public Interest Litigation has transformed access to justice in India:

• PIL allows individuals or groups to file petitions for the public interest, broadening the scope of judicial intervention.
• Significant cases have emerged from PILs, particularly in areas like environmental protection, human rights, and social justice.

Impact of Judicial Review

Judicial review plays a very important role in Indian democracy:

• It protects fundamental rights and upholds the Constitution, acting as a check on legislative and executive powers.
• The judiciary influences public policy and governance, ensuring accountability and transparency.

Current Trends

The landscape of judicial review is evolving:

• There is an increasing use of PILs, reflecting a growing awareness of rights among citizens.
• The scope of rights under the Constitution continues to expand, addressing contemporary social issues.
• Ongoing debates focus on the limits of judicial power and the judiciary’s role in a democratic society.