Judicial Review

Article 32(1) and (2) supply the remedy in the Supreme Court. The right to move that Court "by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed", and the Court may issue "directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari".

Article 226(1) supplies it in the High Courts, which may issue the same writs "for the enforcement of any of the rights conferred by Part III and for any other purpose".

Three things follow, and they are the whole architecture.

1. Article 13 supplies the consequence. An unconstitutional law is not merely improper, it is void, and void only "to the extent" of the inconsistency. That is what makes severability possible, and it is worked out in [Article 13: Laws Inconsistent with Fundamental Rights].
2. Article 32 supplies a right, not merely a jurisdiction. The remedy is itself a fundamental right, dealt with in [Article 32 and the Writs].
3. Article 226 is wider in subject and narrower in territory. The words "and for any other purpose" carry it beyond Part III to any legal right, which is why most judicial review happens there. See [Article 226].

What may be reviewed

• Legislation, of Parliament and of a State Legislature. This runs on two independent tracks: whether the legislature had power over the subject, and whether the law offends Part III.
• Constitutional amendments, on the basic structure doctrine established by Kesavananda Bharati and taken up in [The Amending Power] and [The Basic Structure].
• Executive and administrative action, including orders, appointments, contracts and licensing decisions.
• Delegated legislation, on the two grounds set out in [Delegated Legislation] and [Ultra Vires].

Three things sit outside, and a complete answer names them. Proceedings in Parliament cannot be questioned for "any alleged irregularity of procedure" under article 122. The advice tendered by Ministers to the President "shall not be inquired into in any court" under article 74(2). And a court reviews legality, not wisdom: it does not ask whether a policy was a good one.

The grounds

Learn these as a list, because that is how the question is set.

1. Want of legislative competence. The subject falls outside the legislature's List, on [The Legislative Lists].
2. Violation of Part III. The commonest ground, on article 13.
3. Violation of any other provision of the Constitution, for example a law offending article 301 or the federal scheme.
4. Damage to the basic structure, available only against a constitutional amendment.
5. Ultra vires, where a subordinate instrument exceeds its parent Act, or the authority exceeds its power. Taken next, in [Ultra Vires].
6. Illegality, irrationality and procedural impropriety in administrative action, including breach of natural justice.
7. Arbitrariness, on article 14 as read in [Arbitrariness].

The power that cannot be taken away

Facts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, (1997) 3 SCC 261, decided 18 March 1997 by seven judges. A batch of appeals and writ petitions was referred to a larger Bench because a Division Bench thought the five-judge decision in Sampath Kumar's case needed reconsideration; that report has not been read for this book, so the case is named without a citation. Part XIVA, inserted by the Forty-second Amendment, allows tribunals to be created, and article 323A(2)(d) and article 323B(3)(d) permitted a law to exclude the jurisdiction of all courts except the Supreme Court under article 136. Section 28 of the Administrative Tribunals Act 1985 did exactly that. The questions were whether such exclusion was constitutional, whether a tribunal may test the vires of a statute, and whether tribunals were effective substitutes for the High Courts.

Held. Judges of tribunals do not enjoy the protections that secure the independence of the superior judiciary, so they "can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation". Therefore "the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure", and "the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded". The High Courts' power of superintendence over courts and tribunals under article 227 is also part of the basic structure. Clause 2(d) of article 323A and clause 3(d) of article 323B, "to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional", as were section 28 and every similar exclusion clause. Tribunals may decide the vires of statutory provisions and rules, but only in a "supplemental" and not a substitutional role, they may not decide the vires of their own parent statute, and their decisions are "subject to scrutiny before a Division Bench of the High Court".

Why it matters. This is the load-bearing holding of the chapter. Judicial review under articles 226 and 32 is not an ordinary jurisdiction that Parliament may rearrange: it is part of the basic structure, so an ouster clause fails however plainly it is drafted. Note also what the case did not do. It did not abolish tribunals, and it did not let litigants bypass them. It put them first and the High Court above them, which is the working shape of tribunal litigation today, taken further in [Tribunals].

Review of an amendment

Facts. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC 225, decided 24 April 1973. The head of a religious institution moved the Supreme Court under article 32 against the Kerala Land Reforms Act 1963, and was allowed to challenge the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments passed while the case was pending. The Twenty-fifth had inserted article 31C, immunising certain laws from articles 14, 19 and 31 and providing that a law declaring itself to be for that purpose could not be questioned in any court.

Held. Every provision may be amended "provided in the result the basic foundation and structure of the Constitution remains the same". Shelat and Grover JJ. rejected the argument that reviewing an amendment would drag the Court into political questions, answering that where the dispute is between the Union, the States and citizens, "it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament". They found "ample evidence in the Constitution itself to indicate that it creates a system of checks and balances", and identified "the judicial review provided expressly in our Constitution by means of Article 226 and 32" as "one of the features upon which hinges the system of checks and balances". They recorded that "at no stage the respondents have contested the proposition that the validity of a Constitutional amendment can be the subject of review by this Court". The second limb of article 31C, which made the legislature the judge of whether its own law qualified, did not survive.

Why it matters. Two points, and students usually take only the first. The first is that an amendment is reviewable at all. The second is the reason: judicial review is not a rival to the political branches but a component of the same machine, and the answer to the objection that review is undemocratic is that somebody must decide, and only a court can.

A worked example

A State Act sets up a Land Revenue Tribunal. Section 19 provides that "no civil court and no High Court shall entertain any proceeding in respect of any matter within the jurisdiction of the Tribunal", and section 20 that the Tribunal's finding on the constitutional validity of any rule made under the Act shall be final. Anand, whose land has been reclassified, wants to move the High Court.

Step one, is the exclusion of the High Court good? No. On L. Chandra Kumar, the jurisdiction under articles 226 and 227 is part of the basic structure and "can never be ousted or excluded". Section 19 is void so far as it names the High Court.

Step two, and the civil court? That part stands. Barring the ordinary civil court and channelling disputes to a specialised forum is a legislative choice; it is only the constitutional jurisdiction that cannot be touched.

Step three, may the Tribunal rule on the vires of the rules? Yes. L. Chandra Kumar permits a tribunal to test statutory provisions and rules, but not the Act that created it.

Step four, is section 20 good? No. Making the Tribunal's constitutional finding final removes the High Court's scrutiny, and every such decision is "subject to scrutiny before a Division Bench of the High Court".

Step five, must Anand go to the Tribunal first? Yes, ordinarily. He may not overleap the Tribunal merely because he raises a constitutional point, unless he is challenging the Act that constitutes it.

Step six, what if the exclusion had come by constitutional amendment? Then the attack is on the basic structure, on Kesavananda Bharati, and the outcome is the same, because that is precisely what happened to article 323A(2)(d).

What it does NOT mean

It does not mean the court sits in appeal. Review asks whether the maker had the power and kept within it. It does not ask whether a better decision was available. The line is easy to state and hard to hold, which is the subject of [Judicial Activism, Restraint and Overreach].

It does not mean every law is presumed bad. There is a presumption of constitutionality, and the burden lies on the challenger, as [Reasonable Classification] sets out.

It does not mean an invalid law is wiped off the statute book. Article 13 makes it void "to the extent" of the inconsistency, which is why severability and eclipse exist.

Quick revision

• Judicial review is the power to test legislative and executive action against the Constitution and declare void what does not conform.
• Its source is express: articles 13, 32 and 226. It is not an implication, as it is in the United States.
• Article 13(1) voids inconsistent pre-Constitution law; article 13(2) voids inconsistent new law, in each case "to the extent" of the inconsistency.
• Article 32 makes the remedy a fundamental right; article 226 extends to Part III "and for any other purpose".
• Reviewable: legislation, constitutional amendments, executive action, delegated legislation. Outside: irregularity of parliamentary procedure (article 122), ministerial advice (article 74(2)), and the wisdom of a policy.
• Grounds: competence, Part III, any other constitutional provision, basic structure, ultra vires, procedural impropriety, arbitrariness.
• L. Chandra Kumar: review under articles 226 and 32 is part of the basic structure and can never be ousted; tribunals are supplemental, may test rules but not their parent Act, and are subject to a Division Bench.
• Kesavananda Bharati: an amendment is reviewable; judicial review under articles 226 and 32 is the hinge of the checks and balances.

Test yourself

1. Why is it said that judicial review in India rests on the text and not on an implication? Name the articles.

2. Set out article 13(1) and 13(2) and explain the significance of the words "to the extent".

3. What may not be reviewed, and under which provisions?

4. State the holding in L. Chandra Kumar on ouster clauses, and the role it leaves to tribunals.

5. How did Shelat and Grover JJ. answer the objection that reviewing an amendment involves the Court in political questions?

6. A statute says the decision of an authority "shall be final and shall not be called in question in any court". Advise on its validity.