Mains Daily Question
Jan. 1, 2021

  1. What do you understand by "judicial review" in Indian context? Enumerate the key provisions in the constitution with respect to judicial review in India. 

 

Approach

  • Introduce with the meaning of judicial review.

  • Explain key provisions of the constitution with respect to judicial review in India.

  • Mention few instances when it has been used.

  • Conclude appropriately suggesting middle path.

Model Answer

Judicial review is the power of the Supreme Court and the High Courts to examine the constitutionality of the Acts of the Parliament and the state legislatures and executive orders both of the centre and state governments. If the Acts, rules or actions are found to be ultra vires to the constitution, then such actions are declared null and void by the judiciary.

The constitutional validity of a legislative enactment or an executive order may be challenged on the following grounds:

  • Violation of fundamental rights

  • Outside the competence of the authority which has framed it

  • Repugnant to the Constitutional provisions

        In Keshavanand Bharti’s case, it was held that the judicial review is a ‘basic feature’ of the constitution. Though the term "judicial review" is not used in the constitution of India, there are many provisions in the constitution conferring this power to the judiciary. Some of the important provisions include:

  • Article 13: All laws inconsistent with the Fundamental Rights shall be null and void.

  • Article 32 and 226: They guarantee the right to move the Supreme Court and the High court respectively for the enforcement of the Fundamental Rights and empowers them to issue directions or orders or writs for that purpose.

  • Article 131: Provides for the original jurisdiction of the Supreme Court in the centre–state and inter-state disputes.

  • Article 132-134: Provides for the appellate jurisdiction of the Supreme Court in constitutional cases, civil cases and criminal cases.

  • Article 143: The President can seek the opinion of the Supreme Court on any question of law or fact and on any pre-constitution legal matters.

  • Article 245: Dealing with the territorial extent of laws made by Parliament and by the Legislatures of States.

  • Article 246: Dealing with the subject matter of laws made by Parliament and by the Legislatures of States.

  • Articles 251 & 254: Provides that in case of a conflict between the central law and state law, the central law prevails over the state law and the state law shall be void.

Dr. B.R. Ambedkar had described the provisions related to judicial review as the ‘heart of the Constitution’. This power of judicial review has been utilised by the courts of India over time in cases like the Bank Nationalisation case (1970), Keshavananda Bharti case (1973) and recently in the NJAC case.  Thus, the judicial review has played a key role in protecting the rights of downtrodden and poor, filling the grey areas of law, and acting as the protector of democracy.

However, the Supreme Court of India has cautioned the judges to respect and not encroach upon the domain of other organs of government by exercising restraint in using these powers. The Supreme Court should best subserve to strengthen the institutions of India’s liberal democracy and sustain over time the otherwise wide ambit of judicial review, so that the judiciary remains “a light unto the nations” without being a “sheriff unto the nations”

 

Subjects : Polity
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