There is a rule of law in India, and the constitution is the supreme law. The Indian constitution is the law of the land. If any law is passed that violates the fundamental structure of the constitution, the Indian judiciary has the authority to overturn that law. Although the term "judicial review" does not appear in the Indian Constitution, many articles do provide a clear understanding of it.
The Indian judiciary has the authority to investigate the actions of the legislature, executive, and administrative branches of government and to ensure that such actions are in accordance with the provisions of our constitution. If found unconstitutional, the following provision will be declared null and void.
Judicial review has two major functions to consider:
- Legitimizing the government's actions;
- Protecting the constitution if the government tries to encroach on it.
HISTORICAL VIEW
The power of judicial review is the most distinguishing feature of the United States Supreme Court. The judiciary, as the guardians of the constitution, has the authority to review laws that may violate the country's constitution. The power of judicial review was first introduced in the Supreme Court in the case of Marbury v. Madison (1803), in which the Supreme Court established its powers by limiting congressional power by declaring legislation unconstitutional.
In this case, the court ruled that John Madison, the newly elected president at the time, and his secretary of state were wrong to prevent William Marbury from being appointed as a district court justice by the former president before he left office. As a result, he issued a writ of Mandamus against the secretary of state. The Supreme Court was given jurisdiction by the Judiciary Act of 1789, but the Marshall Court ruled that the act was an unconstitutional extension of the judiciary.
In terms of judicial review, the Indian Constitution is more similar to the US Constitution than the British Constitution. In the United Kingdom, no court can declare any law passed by the British parliament invalid. In contrast, in India, the parliament is not supreme, and any laws enacted there are always subject to judicial review.
CONSTITUTIONAL PROVISIONS IN INDIA
The Indian parliament has adopted the US Constitution's judicial review system, and the powers of the parliament are not supreme, with power divided between the Centre and the states. The supreme Court can also review legislation passed by both the parliament and state legislatures. This strengthens the courts and provides a tool for judicial review.
Our Constitution grants various provisions of the judicial review system in various articles. Articles 13, 32, 131-136, 143, 226, 145, 246, 254, 251, and 372 are among them. These articles are briefly explained below:
Article 13 declares that any law that violates any of the provisions of fundamental rights is null and void.
Article 32 guarantees the right to constitutional remedies, which means that a person may petition the Supreme Court to have his fundamental rights protected.
Article 226 gives the Supreme Court the authority to issue directions, orders, or writs in the form of habeas corpus, mandamus, quo warranto, and certiorari. Such directives, orders, or writs may be issued to enforce fundamental rights or for any other reason.
Article 143 provides the Supreme Court the advisory jurisdiction. The president may seek the Supreme Court's opinion on any question of law or fact of public importance on which he believes it is necessary to obtain such an opinion.
Article 372(1) states that all laws in force in India before the adoption of the constitution shall remain in force until altered, repealed, or amended by a competent legislature or an authority.
Articles 131-136 entrust the courts with the power to adjudicate disputes between individuals and the state, as well as between states and the union; however, the court may be required to interpret the provisions of the constitution, and the interpretation given by the Supreme Court becomes the law that all courts of the land must follow.
Article 245 provides the powers of both the parliament and the state legislature are subject to the provisions of the constitutions. Any legislation's legitimacy can be challenged in a court of law on that specific subject matter or if the law violates any of the fundamental rights.
According to Article 246(3), the powers of both parliament and state legislatures are subject to the provisions of the Indian Constitution.
Articles 251 and 254 states that if there is a conflict between union and state laws, the state laws take precedence.
It should also be noted that there is no express provision in our constitution that empowers the courts to invalidate laws; they are only tasked with determining whether the law to be implemented is not unconstitutional if a portion of a provision becomes ineffective while the remainder of the provision remains in effect. If the other part in operation cannot function without the other part, the entire law is invalidated.
To declare a law unconstitutional, the Supreme Court must correctly specify which part of the provision is unconstitutional. Then that specific part or the entire provision is repealed from the Indian constitution. When a law is found to be unconstitutional, it is declared unenforceable as of the date of the court's decision. All previous decisions made before the day of declaration will continue to be valid.
JUDICIAL REVIEW CASES IN INDIA
Judicial review of both state and central existing laws, as well as ordinances of both constitutional and executive amendments, is possible. The laws listed in the ninth schedule of the Indian Constitution are not subject to judicial review. Every court in the land honors the Supreme Court’s interpretations, so there is no appeal against the Supreme Court’s decision.
The first amendment act of 1951 was challenged before the Supreme Court in Shankari Prasad v. Union of India on the grounds that it abridged the 'Right to Property,' and it was argued that this could not be done because the fundamental rights under article 13 could not be abridged (2). The Supreme Court rejected the argument, stating that the terms of Article 368 are completely general and empower the legislature to amend the constitution without exception.
In the landmark case of Golaknath v. State of Punjab, three constitutional amendments were challenged: the first, fourth, and seventeenth. The Supreme Court overturned its decision that parliament, under Article 368, has no power to amend the constitution in order to take away or limit the fundamental rights guaranteed by it. According to the Supreme Court:
- Article 368 only specifies the procedure to be followed when amending the constitution;
- it does not grant the authority to amend the constitution;
- Articles 245, 246, and 248 of the Union list grant the authority to amend the constitution.
In the Minerva Mills case, Section 4 of the Constitution was struck down by a majority of the Supreme Court.
The 42nd Amendment Act granted the directive principles authority over our constitution's articles 24, 19, and 31. As it would jeopardize the harmony of the Indian Constitution and stated that Parts III and IV of our constitution are equally important and that absolute primacy of one over the other is not permissible.
As a result, interpreting the various provisions of the constitution aids in the proper implementation of laws in the country.
CONCLUSION
The judicial review system is one of the most powerful in our Indian Constitution. Thus, the doctrine of judicial review is deeply rooted in India, and it is explicitly sanctioned by the Indian constitution. All of the provisions in our Indian Constitution emphasize the importance of the judiciary in keeping a check on the legislative and executive branches of the federal government as well as the states. The judicial review system protects our constitution by ensuring individual fundamental rights, dividing power between the union and the states, and clearly defining the powers of every organ in the country. Thus, the government's actions are legitimized, and the Indian constitution is protected from any undue encroachment by the government.
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