What Judicial Review Is
Chapter Twenty-Five
Syllabus topic 2, "Special Dimensions of Judicial Process in Constitutional Adjudications."
Pages 103 to 106 of 356
In one line
Judicial review is the power of a court to examine whether an act of the legislature or the executive is within the authority the Constitution gives it, and to refuse to give effect to it if it is not.
In the wording a student can write in an exam: judicial review is the power of the superior courts to examine the constitutional and legal validity of legislative enactments, executive actions and, in India, constitutional amendments, and to declare them void or to refuse to enforce them where they exceed the authority conferred. It is the mechanism by which the supremacy of the Constitution is enforced against the organs the Constitution itself creates.
Why a supreme constitution implies review
The argument is short and MU has set it as a question in its own right.
The Constitution is supreme. It creates the legislature, the executive and the judiciary, and defines what each may do.
A limited power exercised beyond its limits is void. If Parliament may not make a law abridging a fundamental right, a law that abridges one is not a law at all.
Somebody must decide whether the limit has been exceeded. Leaving it to the body whose power is limited makes the limit meaningless, since it would be judge in its own cause.
The courts are the natural decider, because deciding whether an act conforms to a legal standard is what courts do.
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, states the third step as law.
Facts. A sick textile undertaking was taken over and nationalised, and the Act was placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 had inserted clauses (4) and (5) into Article 368, declaring that no amendment could be called in question in any court and that there was no limitation on the constituent power. Section 4 had widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.
Held. Both were void and beyond the amending power. Clause (5) sought to remove all limitations on the amending power and demolished the basis on which limited government rests. Clause (4) sought to deprive the courts of the power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, which is itself a basic feature.
Why it matters here. The reasoning on clause (4) is the argument for judicial review reduced to a sentence: if the power to enforce a limit is removed, the limit ceases to exist.
What Judicial Review Is
Judicial review distinguished from appeal
This distinction is worth marks and students miss it.
| Appeal | Judicial review | |
|---|---|---|
| Question asked | was the decision right? | was the decision within power and lawfully made? |
| Scope | merits, facts and law | legality, procedure and, in constitutional cases, validity |
| Source | a statute conferring a right of appeal | the Constitution |
| Remedy | substitute the correct decision | quash, declare void, or remit for fresh decision |
| Who may invoke | ordinarily a party | in India, in public interest, any bona fide person |
Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, states the distinction.
Facts. Unsuccessful candidates for MBBS and BDS admission in Jammu and Kashmir challenged the selection procedure, and the High Court gave directions to the State Government including a direction to constitute a statutory body for selections.
Held. While the legislature, the executive and the judiciary function within their own spheres, no organ can take over the functions assigned to another. A court exercising judicial review does not sit as an appellate authority over the executive and cannot advise the executive in matters of policy; its function is to see that the executive acts within the limits of its authority and that its acts do not infringe the law.
Why it matters here. It fixes the character of the jurisdiction. Review is about power, not about wisdom.
The three objects of review in India
1. Legislation. Central and State statutes, tested for legislative competence under the Seventh Schedule, for consistency with Part III, and for any other constitutional limitation.
2. Executive and administrative action. Tested for legality, for compliance with natural justice, for reasonableness and for the absence of mala fides.
3. Constitutional amendments. Unique to India and a few systems following it. After Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, an amendment may be struck down for damaging the basic structure.
The Indian development, in five steps
Step one: the power assumed from the start. The Constitution's text made review inescapable, and the Court exercised it from A.K. Gopalan v. State of Madras, AIR 1950 SC 27, onward, even while upholding the law.
Step two: extended to amendments. Sankari Prasad and Sajjan Singh upheld amendments; I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, held that fundamental rights could not be abridged by amendment; Kesavananda settled the position as the basic structure doctrine.
Step three: protected against exclusion. Minerva Mills struck down the attempt to make amendments unreviewable.
Step four: made a basic feature itself. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
Worked in full in [Judicial Review as a Basic Feature of the Constitution]. A seven judge Bench held that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be excluded, striking down the clauses that permitted exclusion and holding that tribunals act as courts of first instance subject to scrutiny by a Division Bench of the High Court.
What Judicial Review Is
Why it matters here. It converts judicial review from a doctrine into a guarantee that cannot be legislated away, and it is the standing answer to any ouster clause.
Step five: confined at the edges. Coelho, Aravali Golf Club and Chaufal show the Court disciplining the jurisdiction it had built.
A worked example
A State Act sets up a tribunal for land disputes and says that no civil court shall have jurisdiction and that no writ petition shall lie against the tribunal's orders.
Is the first clause valid? Ordinarily yes. Excluding the jurisdiction of civil courts in favour of a specialised tribunal is a legislative choice.
Is the second valid? No. On Chandra Kumar, the power of the High Court under Articles 226 and 227 is part of the basic structure and cannot be taken away by legislation.
What follows in practice? The tribunal decides at first instance; the High Court's supervisory jurisdiction remains available; and the ouster is read down to exclude only the ordinary civil suit.
What beginners get wrong
"Judicial review means the court can decide whether a law is good." It decides whether a law is within power. Wisdom belongs to the legislature.
"Judicial review is the same as judicial activism." Review is a jurisdiction; activism is a description of how expansively it is exercised. A restrained court also reviews.
"Judicial review came from Marbury v. Madison." The American case is the origin of the doctrine where the constitution is silent. In India the power is written into the text, so it does not depend on inference. See [The Constitutional Basis of Judicial Review in India].
Quick revision
- Judicial review: the power to test legislative, executive and, in India, constitutional amendments against the Constitution and to refuse effect where authority is exceeded.
- The argument: the Constitution is supreme; a limited power exceeded is void; somebody other than the body limited must decide; courts are the natural decider.
- Minerva Mills: a limited power cannot be made unlimited by removing the means of enforcing the limit.
- Review is not appeal: it asks whether the act was within power and lawfully made, not whether it was right. Asif Hameed.
- Three objects: legislation, executive action, constitutional amendments.
- Development: assumed from 1950; extended to amendments by Golak Nath and Kesavananda; protected in Minerva Mills; made a basic feature in Chandra Kumar; disciplined thereafter.
What Judicial Review Is
Test yourself
1. Give the argument from constitutional supremacy to judicial review in four steps. The Constitution is supreme and defines what each organ may do; a limited power exercised beyond its limits produces something that is void; the question whether the limit has been exceeded cannot be left to the body whose power is limited, since it would be judge in its own cause; and deciding whether an act conforms to a legal standard is the characteristic function of a court.
2. Distinguish judicial review from appeal on four points. Appeal asks whether the decision was right and review asks whether it was within power and lawfully made; appeal extends to merits and facts while review is confined to legality, procedure and validity; appeal is created by statute while review rests on the Constitution; and appeal substitutes the correct decision while review quashes, declares void or remits.
3. What did Chandra Kumar decide, and why is it the answer to an ouster clause? That the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be excluded, so the clauses permitting exclusion were struck down to that extent. It is the answer to an ouster clause because a legislature cannot remove what the basic structure protects.
4. Why does Indian judicial review not depend on Marbury v. Madison? Because the Indian Constitution provides for it in terms. Article 13 declares laws inconsistent with Part III void, Article 32 makes the right to move the Supreme Court for enforcement itself a fundamental right, and Articles 226 and 227 confer the power on the High Courts. The American doctrine was an inference from a silent text; in India the power is written.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.