Judicial Review in Indian Constitution Richa Shukla BASICS OF LAW Tue, Feb 23, 2021, at ,05:13 PM Introduction-Judicial Review is the power of Courts to pronounce upon the constitutionality of legislative and executive acts of the government which fall within their normal jurisdiction. It has the origin in the theory of limited government and in the theory of two laws, viz.. an ordinary law and a supreme law i.e Constitution. Under Article 13 of the Indian Constitution, the compulsion of judicial review was described in fundamental rights in Part III. It is stated that the State or the Union shall not make such rules that takes away or abridges the essential rights of the people. If any law made by the Parliament or the State Legislature contravenes the provisions of this Article, it shall be void. In a Fundamental Rights Case, Justice Khanna said that judicial review has became an integral part of our constitution and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of statutes. If the provisions of the statutes are found to be violative of any of the articles of the constitution which is the touchstone for the validity of all laws the Supreme Court and the High Courts are empowered to strike down the said provision." In India, three aspects are covered by judicial review that are as follows: # Judicial review of legislative action # Judicial review for judicial decision # Judicial review of administrative action Article 13 of Indian Constitution- Laws inconsistent with Fundamental Rights-(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,— (a) “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this Constitution made under article 368 Ø Doctrine of Judicial Review- It has been borrowed from USA. Article 13 provides for the judicial review of all legislation in India, past as well as future. The power has been conferred on the high court and Supreme Court of India which can declare a law unconstitutional if it is consistent with any of the provision of part III i.e. Fundamental right of the Indian constitution.In Keshavanda Bharti V State of Kerala AIR 1973 SC 1461 ,Khana ,J, Observed “ Judicial review” has become an integral Part of our Indian constitutional system and a power has been vested in the high court and the supreme court to decide about the constitutional validity of the provision of the statutes. If the provision of the statutes is found to be violative of any of provision of constitution which is the touch stone for the validity of all the laws, the Supreme Court and the high courts are empowered to strike down the said provision. Ø Scope of Judicial Review and its nature- In the State of Madras v V.G.Row AIR 1952 SC 196, it was observed that our constitution contains expressed provision for judicial review of legislation as to its conformity with the Constitution. Ø Article 13 is not retrospective in effect- Article 13 (1) is prospective in nature . All pre constitution laws inconsistent with the fundamental rights will become void only after the commencement of the Constitution. They are not Void Ab Initio. A declaration of invalidity by the court will however be necessary to make a certain law invalid. Ø Doctrine of severability It is also known as doctrine of severability. It protects our Fundamental Rights, as it is mentioned in the clause (1) of the Article 13 of the Constitution that all laws enforced in India, before the commencement of Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void. The whole law or act would not be held invalid, but only the provisions of the law or act which are not in consistency with the Fundamental rights. This is what the doctrine of severability means. But it is only possible if the part which is inconsistent with the law is separable from the whole law. If both the valid and invalid part are so closely mix up with each other that it cannot be separated then the whole law or act will be held invalid. · In A.K. Gopalan v. State of MadrasThe Supreme court held that in case of repugnancy to the Constitution, only the repugnant provision of the impugned Act will be void and not the whole of it, and every attempt should be made to save as much as possible of the act. If the omission of the invalid part will not change the nature or the structure of the object of the legislature, it is severable. It was held that except Section 14 all other sections of the Preventive Detention Act, 1950 were valid, and since Section 14 could be severed from the rest of the Act, the detention of the petitioner was not illegal. · In State of Bombay v. F.N. BalsaraEight sections of the Bombay Prohibition Act were declared invalid, the Supreme Court said that the portion which was invalid to the extent of fundamental rights was separable from the rest of the act. Ø Doctrine of Eclipse Eclipse occurs when one object overshadows the other, so as the name suggests that Doctrine of Eclipse is applied when any law or act violates the fundamental rights then the fundamental rights overshadows the other law or act and make it unenforceable but not void ab initio. They can be enforced again if the restrictions posed by the fundamental rights are removed. · In Bhikaji Narain Dhakras v. State of Madhya Pradesh,Section 43 of the Motor Vehicles Act, 1939 was amended by the Central Provinces and Berar Motor Vehicles (Amendment) Act, 1947, both were pre- constitution legislations. The Amendment Act empowered the Provincial Government to take up the entire Provincial Motor Transport Business, these are violative of article 19(1) (g). By a Constitutional amendment of Article 19(1) (6) the State was empowered to carry on the business to the notification issued by Government to this effect was questioned. The Supreme Court held that the true position is that the impugned law became, for the time being, eclipsed by the fundamental right. The effect of the Constitution Act, 1951 was to remove the shadow and to make the impugned act free from all blemish or infirmity. Ø Doctrine of waiver The doctrine of waiver has no application to the provision of law enshrined in part III of the Indian constitution .it is not open to an accused person to waive or give up his constitutional rights and get convicted. · Basheshar Nath V Income Tax Commissioner 1959- It was held that citizen can’t waive his fundamental right. The reason behind it is not only Means benefit of individual but it is also an obligation upon the state by the constitutional that no peron can relieve state of his obligation · In the A.K Gopalan Case 1950 Hon’ble Chief Justice Kania Commented on Article 13 said “The inclusion of Article 13(1) and (2) appears to be a matter of abundant caution. Even in their absence, if any of the fundamental right was infringed by any legislative enactment, the courts have the power to declare the enactment to the extent that it transgresses the limits and invalid. Ø Doctrine of Lifting the veil- To test of constitutional validity of the act, on alleged violation of fundamental rights, it isnecessary to ascertain its true nature and character and impact of the act for which the court may take into consideration all factors ,such as history of the legislation ,the purpose thereof ,the surrounding circumstances and conditions ,the mischief which it intended to suppress ,the remedy for the disease which the legislature resolved to cure and the true reason for the remedy. Judicial Review and Constitution of India- In order to scrutinize the legitimacy of administrative action and the statutes, the Constitution of India has given influences to the higher courts and the Supreme Court of India. To guard the rights of public and implement the fundamental rights are the main objects of judicial review. If any difficulty arises between State and Center relation, then Article 246 and the Schedule 7 of the Constitution has marked the working zone for the regulation construction between both State and Center. Judicial review has evolved in three dimensions:· To protect the legality of essential rights under Part III of the Indian Constitution.· To authorize the disinterest of organizational achievement.· Interrogation of public interest. Ø Features of Judicial Review in India: Both the Supreme Court and High Courts exercise the power of Judicial Review, but the final power to determine the constitutional validity of any law is in the hands of the Supreme Court of India. Ø Judicial Review of both Central and State Laws: Judicial Review can be conducted in respect of all Central and State laws, the orders and ordinances of the executives and constitutional amendments.Limitations: Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of the Constitution. Ø Decisions in Judicial Review Cases: The Supreme Court can decide:(i) The law is constitutionally valid. In this case the law continues to operate as before, or(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from the date of the judgment.(iii) Only some parts or a part of the law is invalid.In this case only invalid parts or part becomes non-operative and other parts continue to remain in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot operate without it, then the whole of the law gets rejected. Ø Judicial Review As A Part Of The Basic Structure: In the land mark judgment of Keshavanda Bharathi v. State of Kerela, the apex court of India the propounded the doctrine of basic structure according to which it said that the legislature has power to amend the Constitution, but such amendments shall not change the basic structure of the Constitution, The Constitutional bench made no attempt to define the basic structure of the Constitution. S.M. Sikri, C.J mentioned five basic features: i. Supremacy of the Constitution. ii. Republican and democratic form of Government. iii. Secular character of the Constitution. iv. Separation of powers between the legislature, the executive and the judiciary. v. Federal character of the Constitution. In S.P. Sampath Kumar v. Union of India Justice P.N. Bhagwati, C.J., relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) stated that it was well settled and established that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely eliminated, the Constitution would lose its basic structure and independence. Ground of Judicial review: In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock summarized the grounds for reversing an administrative decision by way of judicial review as follows:The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself. Those grounds are mere indications: the same set of facts may give rise to more than one ground for Judicial review, such as: 1. IllegalityIn Lord Diplock's words, this ground means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it"A decision may be illegal for many different reasons. There are no hard and fast rules for their classification, but the most common examples of cases where the courts hold administrative decisions to be unlawful are the following:The decision is made by the wrong person (unlawful sub-delegation). If the law empowers a particular authority, e.g. a minister, to make certain decisions, the minister cannot sub delegate this power to another authority, e.g. an executive officer or a committee. This differs from a routine job not involving much discretion being done by civil servants in the minister's name, which is not considered delegation. 2. Jurisdiction: Error of law or error of factThe court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers. The power depended on them being "illegal immigrants" and any error in relation to that fact took the Home Secretary outside his jurisdiction to expel them. However, where a term to be evaluated by the authority is so broad and vague that reasonable people may reasonably disagree about its meaning, it is generally for the authority to evaluate its meaning.3. Procedural improprietyA decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the "rules of natural justice" have not been adhered to.4. Statutory proceduresAn Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry, or a consultation with an external adviser. Some decisions may be subject to approval by a higher body. Courts distinguish between "mandatory" requirements and "directory" requirements. A breach of mandatory procedural requirements will lead to a decision being set aside for procedural impropriety.5. Breach of natural justiceThe rules of natural justice require that the decision maker approaches the decision making process with "fairness". What is fair in relation to a particular case may differ. As pointed out by Lord Bridge in Lloyd v McMahon [1987] AC 625, "the rules of natural justice are not engraved on tablets of stone". Below are some examples of what the rules of natural justice require.6. The rule against bias Any person that makes a judicial decision – and this includes a decision of a public authority on a request for a license – must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the interest has influenced the decision. 7. The right to a fair hearingWhether or not a person was given a fair hearing of his case will depend on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. If the applicant has certain legitimate expectations, for example to have his license renewed, the rules of natural justice may also require that they are given an oral hearing and that their request may not be rejected without giving reasons8. Improper purpose:Administrative power cannot be used for the purpose it was not given. In Attorney General vs. Fulham Corporation, the authority was empowered under the statute to establish washhouses for the non-commercial use of local residents. The Corporation decided to open a laundry on a commercial basis. The Corporation was held to have acted ultra virus the statute