Judicial Review in the Constituent Assembly and in the Text of the Constitution
Chapter Eighteen
Syllabus topic 2, "Judicial Review in India"
Pages 54 to 56 of 430
In one line
Judicial review in India is not implied, argued for or inherited; it is written down, and Article 13 is the sentence that writes it.
In the wording a student can write in an exam: the Constitution establishes judicial review expressly, by declaring in Article 13 that a law inconsistent with the fundamental rights is void, by conferring the writ jurisdiction on the Supreme Court in Article 32 and on the High Courts in Article 226, by giving the High Courts superintendence in Article 227, and by distributing legislative power in Article 246 so that a law outside the competence of the legislature that made it is void.
Article 13, read clause by clause
Clause (1). All laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III, shall to the extent of such inconsistency be void.
Clause (2). The State shall not make any law which takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause shall to the extent of the contravention be void.
Clause (3)(a). "Law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.
Clause (3)(b). "Laws in force" includes laws passed or made by a legislature or other competent authority before the commencement of the Constitution and not previously repealed.
Clause (4). Nothing in this article shall apply to any amendment of the Constitution made under Article 368. This clause was inserted by the Twenty-fourth Amendment.
Why clause (3)(a) is the most important sentence in Module IV
Because it puts a rule, a regulation, a bye-law and a notification into the same category as an Act for the purposes of Part III. A rule made by a ministry is "law", so a rule inconsistent with Article 14 or Article 19 is void exactly as a statute would be. That is the constitutional foundation of [A Rule Contrary to the Constitution], and it is why Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515, could say that subordinate legislation may be questioned on every ground on which a statute may be questioned and on additional grounds besides.
Where the Constituent Assembly stood
Two things were settled in the Assembly and both matter to an examiner.
The remedy came first. Dr Ambedkar described Article 32 as the very soul of the Constitution and the very heart of it, on the ground that a right without a remedy to enforce it is not a right at all. That is the source of MU's quotation about the right to constitutional remedies being the heart and soul, dealt with in [The Right to Constitutional Remedies as the Heart and Soul of the Constitution].
Judicial Review in the Constituent Assembly and in the Text of the Constitution
Due process was deliberately dropped. The Assembly considered and rejected the American phrase "due process of law" in Article 21, substituting "procedure established by law", precisely in order to keep the courts from reviewing the substance of legislation on liberty. What happened to that decision is the subject of [Due Process in India].
The other doors
Article 32. The Supreme Court's writ jurisdiction for fundamental rights, itself a fundamental right.
Article 226. Every High Court's writ jurisdiction, for fundamental rights and for any other purpose.
Article 227. Superintendence over all courts and tribunals within the High Court's territory.
Article 136. Special leave to appeal, discretionary and available from any court or tribunal except a court martial.
Articles 245 and 246. The distribution of legislative power, which makes competence reviewable and which is the constitutional foundation of Module IV, because a delegate can have no more power than the legislature had to give.
Article 245(1) also contains the words subject to the provisions of this Constitution, which is the textual hook for review of an Act on any constitutional ground and not only on the ground of a fundamental right.
A worked example
A State legislature passes an Act empowering a district officer to detain a person for up to six months if satisfied that his activities are prejudicial to public order, with no provision for a hearing, no communication of grounds and no advisory board. A rule under the Act says that the officer's satisfaction shall not be questioned in any court.
Article 246 and List II are the first question: public order is a State subject, so competence is probably present. Article 13(2) with Articles 21 and 22 is the second: the absence of grounds and of an advisory board offends Article 22, and the procedure is not right, just and fair under Article 21 as construed in Maneka Gandhi v. Union of India, AIR 1978 SC 597. The rule is "law" under Article 13(3)(a), so it too is void for the same reasons, and in any event a rule cannot oust the High Court under Article 226. The petition lies under Article 32 or Article 226.
What this does NOT mean
It does not mean Article 13 covers a constitutional amendment. Clause (4), inserted by the Twenty-fourth Amendment, takes amendments out of Article 13, which is why the limit on amendments had to be found elsewhere, in the basic structure doctrine.
It does not mean an administrative order is "law" under Article 13. An executive instruction which does not have the force of law is not, although it may still be reviewable and may found a legitimate expectation.
Judicial Review in the Constituent Assembly and in the Text of the Constitution
It does not mean judicial review is confined to Part III. Article 226 is expressly available for any other purpose, and competence review under Article 246 has nothing to do with fundamental rights.
Quick revision
Article 13(1) voids pre-Constitution laws inconsistent with Part III; 13(2) forbids the State to make such a law; 13(3)(a) defines law to include ordinances, orders, bye-laws, rules, regulations, notifications, customs and usages having the force of law; 13(4) excludes constitutional amendments. Article 32 is the Supreme Court's writ power and is itself a fundamental right; Article 226 is wider and belongs to every High Court; Article 227 is superintendence; Article 136 is special leave; Articles 245 and 246 make competence reviewable. The Constituent Assembly called Article 32 the heart and soul and deliberately rejected due process.
Test yourself
1. Why does Article 13(3)(a) matter to delegated legislation? Because it makes a rule, regulation, bye-law or notification "law", so it is void if inconsistent with a fundamental right, exactly as an Act would be.
2. What does Article 13(4) do and why was it needed? It excludes constitutional amendments from Article 13. It was inserted by the Twenty-fourth Amendment to overcome the decision that an amendment abridging fundamental rights was itself void under Article 13.
3. Which article makes judicial review available for something other than a fundamental right? Article 226, which is available for the enforcement of fundamental rights "and for any other purpose", and Article 246 read with Article 245 for legislative competence.
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.