Laxmikanth Summary Judicial Review - Indian Polity for UPSC CSE PDF Download

Table of Contents
1. Judicial Review
2. Principles of Review
3. Power of Judicial Review
4. Constitutional Provisions for Judicial Review
5. Scope of Judicial Review
6. Judicial Review of the Ninth Schedule
7. Conclusions from Supreme Court Judgments on the Ninth Schedule
8. Final summary
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In the realm of legal scrutiny, a judge examines the lawfulness of decisions made by public bodies-a process akin to assessing the journey, not just the destination. Judicial review, in essence, delves into the how rather than the right or wrong of the what.

Judicial Review

Judicial review is the process by which the judiciary examines the actions, laws, orders or decisions of the executive, legislative and administrative branches to determine whether they conform to a higher legal authority - primarily the Constitution. Where such actions are found to be inconsistent with the Constitution, the courts have the power to declare them invalid. Judicial review is a central feature of the system of checks and balances and preserves the rule of law by ensuring that public bodies act within the limits of their authority.

The scope, form and intensity of judicial review vary across legal systems. Some jurisdictions permit broad review of both procedure and substance; others restrict review to questions of law, jurisdiction and procedure. In India, the Constitution does not use the phrase "judicial review" explicitly but provides specific provisions that empower courts to review and, where appropriate, invalidate laws and actions.

Judicial Review Process

Principles of Review

• Ultra vires: A public authority must act within the powers conferred on it by law; acts beyond those powers are void.
• Legality: Courts examine whether a decision is authorised by law and whether the correct legal procedure has been followed.
• Procedural fairness / Natural justice: Decisions affecting rights or legitimate expectations must follow fair procedures (for example, the right to be heard and the rule against bias).
• Illegality and error of law: Courts correct errors where an authority misinterprets or misapplies law.
• Wednesbury unreasonableness / Irrationality: Courts may intervene where a decision is so unreasonable that no reasonable authority could have reached it.
• Proportionality: Where applicable, courts assess whether a restriction on rights is proportionate to the legitimate objective sought (India has increasingly used proportionality in certain areas).
• Legitimate expectation: Public authorities should respect consistent representations on which citizens reasonably rely.
• Mala fides (bad faith) and abuse of power: Acts motivated by improper purposes may be struck down.
• Judicial restraint: Courts normally avoid substituting their policy judgments for those of elected bodies unless constitutional limits are breached.

Power of Judicial Review

The power of judicial review in India is exercised primarily by the Supreme Court and the High Courts. The courts perform multiple functions through judicial review:

• Protecting the supremacy of the Constitution by declaring unconstitutional laws and executive actions void.
• Safeguarding Fundamental Rights under Part III of the Constitution.
• Ensuring that the legislature and executive act within constitutional limits.
• Interpreting constitutional and statutory provisions to resolve conflicts and fill gaps in law.
• Maintaining judicial independence and a balance of power among state organs.
• Adapting constitutional doctrines to contemporary needs while respecting precedents and principles.

Constitutional Provisions for Judicial Review

The Constitution does not use the expression "judicial review" but confers powers and remedies that enable the courts to perform that function. Key constitutional provisions are:

• Article 13: Declares that laws inconsistent with or in derogation of the Fundamental Rights are void.
• Article 32: Guarantees the right to move the Supreme Court for enforcement of Fundamental Rights and empowers the Court to issue writs, directions and orders.
• Article 131: Grants original jurisdiction to the Supreme Court in disputes between the Union and States or between States.
• Article 132: Confers appellate jurisdiction on the Supreme Court in constitutional matters.
• Article 133: Relates to the Supreme Court's appellate jurisdiction in civil cases.
• Article 134: Deals with the Supreme Court's appellate jurisdiction in criminal cases.
• Article 134-A: Provides for certification for appeal to the Supreme Court from High Courts in certain criminal matters.
• Article 135: Confers powers on the Supreme Court corresponding to those of the former Federal Court, where applicable.
• Article 136: Empowers the Supreme Court to grant special leave to appeal from any judgment, final order or decree of any court or tribunal.
• Article 143: Permits the President to refer questions of law or fact of public importance to the Supreme Court for its opinion.
• Article 226: Enables High Courts to issue writs, orders or directions for enforcement of Fundamental Rights and for other purposes.
• Article 227: Gives High Courts supervisory jurisdiction over all courts and tribunals within their territory.
• Article 245: Relates to the territorial extent of laws made by Parliament and State Legislatures.
• Article 246: Allocates subjects between Parliament and State Legislatures (Union, State and Concurrent Lists).
• Articles 251 and 254: Resolve conflicts between central and state laws, favouring central law where applicable.
• Article 372: Provides for the continuation of pre-Constitution laws until altered or repealed.

Writs under Articles 32 and 226

• Habeas corpus - to secure release from unlawful detention.
• Mandamus - to command performance of public duty.
• Prohibition - to prohibit lower courts or tribunals from exceeding jurisdiction.
• Certiorari - to quash orders of lower courts, tribunals or authorities.
• Quo warranto - to question the legality of a person's claim to a public office.

Scope of Judicial Review

The constitutional validity of a legislative enactment or an executive action may be challenged before the Supreme Court or the High Courts on the following principal grounds:

• Violation of Fundamental Rights (Part III): Where a law or action infringes rights guaranteed under Part III.
• Exceeding the authority of the framing authority: Where a legislature or executive body acts beyond the powers conferred on it by the Constitution or statute.
• Conflict with constitutional provisions: Where a law or act is inconsistent with any provision of the Constitution.

Expanding Judicial Review

• The scope of judicial review in India has developed through judicial interpretation but remains narrower in some respects than in systems that use due process as a broad standard (for example, the United States).
• The American Constitution's use of due process of law has enabled expansive scrutiny on both procedural and substantive grounds; Indian constitutional text emphasises procedure established by law (earlier phrased differently by earlier case law), and the focus traditionally has been on whether a law falls within the competence of the framing authority.
• Indian courts have generally avoided deciding on pure policy questions of reasonableness, suitability or desirability; their role is to test whether the law or executive action is within the authority conferred and consistent with constitutional guarantees.
• Nevertheless, Indian jurisprudence has progressively recognised principles such as proportionality, legitimate expectation and fair procedure, thereby expanding the qualitative reach of judicial review in appropriate contexts.

Judicial Review of the Ninth Schedule

The Ninth Schedule was created by the Constitution (First Amendment) Act, 1951 as a repository of central and state laws that were to be protected from judicial challenge on the ground that they violated Fundamental Rights. This device was used primarily to protect land reform and agrarian legislation enacted in the early years after Independence.

Article 31-B protection

• Laws placed in the Ninth Schedule are, by virtue of Article 31-B, protected from challenge as being void under Part III on the face of it - at least as originally conceived.
• However, the protection of the Ninth Schedule has been refined by later judicial decisions which subject the additions to constitutional scrutiny in certain circumstances.

Ninth Schedule - Evolution

• Originally the Ninth Schedule contained 13 entries (1951); it now contains many more entries and the number of laws included across successive amendments has increased (the input states the schedule now comprises 282 entries).
• State enactments in the Ninth Schedule often relate to land reforms; Parliament's entries address a wider range of subjects.

Landmark cases

• Kesavananda Bharati v. State of Kerala (1973) - Established the doctrine of the basic structure of the Constitution. The Court held that Parliament cannot amend the Constitution in a manner that destroys its basic structure.
• Waman Rao v. Union of India (1989) - Clarified that the Ninth Schedule laws must be judged based on the date of their inclusion and effect; acts added after 24 April 1973 are to be examined in light of the basic structure doctrine.
• I.R. Coelho v. State of Tamil Nadu (2007) - Reaffirmed that laws placed in the Ninth Schedule are not absolutely immune from judicial review; they remain open to challenge if they violate Fundamental Rights or damage the basic structure of the Constitution. The Court emphasised judicial review as a constitutional basic feature.

Conclusions from Supreme Court Judgments on the Ninth Schedule

The Supreme Court's jurisprudence on the Ninth Schedule and related constitutional amendments yields several settled propositions. These may be summarised as follows:

• Validation of laws in the Ninth Schedule: Inclusion of a law in the Ninth Schedule does not automatically immunise it from all judicial scrutiny where it affects rights under Part III or the basic structure of the Constitution.
• Individual assessment of constitutional amendments: Each constitutional amendment or law needs individual scrutiny to determine whether it impairs the basic features of the Constitution; precedents such as Kesavananda Bharati and subsequent rulings guide this examination.
• Testing amendments post-24 April 1973: Laws or entries added to the Ninth Schedule after 24 April 1973 (the date of the Kesavananda judgment) can be tested for compatibility with the basic structure and Fundamental Rights.
• Justification for constitutional protection: When a law is granted protection through inclusion in the Ninth Schedule by amendment, courts will inquire into the nature and extent of infringement upon Fundamental Rights using tests such as the "rights test" and the "essence of the right" test to assess whether the basic structure is impaired.
• Limitations on re-challenges of previously upheld laws: Where the Court has expressly upheld the validity of a Ninth Schedule law in earlier decisions, that specific law, as adjudicated, cannot be reopened merely on the basis of new pronouncements; however, laws added after the relevant cut-off date remain open to challenge on basic structure grounds.
• Immunity for finalised transactions: Transactions and actions which have become final in reliance on an impugned Act may enjoy factual protection so as to avoid unsettling settled expectations, even where the underlying law is later invalidated.

The changes in the number and nature of entries placed in the Ninth Schedule before and after 24 April 1973 are illustrated below:

Note: Certain entries (for example, entries 87, 92 and 130) were omitted by the Forty-Fourth Amendment (1978).

Final summary

Judicial review is a constitutional mechanism that preserves the supremacy of the Constitution, protects Fundamental Rights and enforces limits on public power. Its core doctrines - including ultra vires, procedural fairness, basic structure and the ability to examine Ninth Schedule entries - have been articulated and refined by the Supreme Court through landmark decisions. While courts exercise restraint on matters of policy, judicial review remains an essential safeguard against excesses by the legislature and executive and a means to keep constitutional democracy responsive and lawful.