Administrative Law

LLM I Semester

Judicial Review

Under the statutory and constitutional provisions, the courts have the wide range of
powers of judicial review in India. It is to state that the constitutional and statutory
provisions of judicial review are totally different. The courts must exercise these
powers with self-control and great caution. It is not expected from the courts that they
phase out from the boundary of their appropriate influences of judicial assessment.
The constitution of India provides an express provision for judicial review in the
shape of Article 13, which states as:

13(1). All laws in force in the territory of India immediately before the
commencement of constitution shall be void to the extent to which they are
inconsistent with the provisions of part 3rd of the constitution.

13(2). state shall not make any law which takes away or abridges the fundamental
rights conferred by part 3rd of constitution and any law made in contravention of
fundamental rights shall to the extent of contravention, be void.

13(3). law includes any ordinance, order, by-law, rule, regulation, notification,
custom or usage having the force of law.

Article 13 in fact provides for the judicial review of all legislations in India, past as
well as future. This power has been conferred on the High courts and the Supreme
Court of India which can declare a law unconstitutional if it is inconsistent with any
of the provisions of part 3rd of the constitution.

Thus, the laws which take away or abridge the fundamental rights are liable to be
struck down as ultra vires or void by the courts under art 13 (2) by exercising the
power of judicial review. Chief Justice Patanjali Shastri in State of Madras vs
V.G.Row AIR 1952 SC 196  observed that our constitution contains express provision
for judicial review of legislation as to its conformity with the constitution........ the
courts in this country face upto such important and none too easy task, it is not out of
any desire to tilt at legislative authority and a crusader's spirit, but in discharge of duty
Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
plainly laid upon them by constitution. This is especially true as regards the
fundamental rights as to which the court has been assigned the role of sentinel on the
qui vive.  Chief Justice Kania in A.K.Gopalan vs state of Madras AIR 1950 SC 27
pointed out that it was only by way of abundant caution that the framers of our
constitution inserted the specific provisions in Art 13...... In India, it is the constitution
which is supreme and all statute laws must be in conformity with the constitutional
requirements and it is for the judiciary to decide whether any enactment is
constitutional or not.

 The fundamental subjects of judicial review in the constitution of India relates to the
following things,

1. Violation of fundamental rights

2. Violation of various other constitutional restrictions embodied in the constitution.

3. Enactment of legislative act in violation of constitutional mandates regarding

4. Delegation of essential legislative power by the legislature to the executive or any

5. Violation of implied limitations and restrictions.

In India, judicial review broadly covers three aspects;

 (1) Judicial review of legislative action

(2) Judicial review for judicial decision, and

(3) Judicial review of administrative action

 These facets of judicial review were pronounced by the S.C.I. in case of L.Chandra
Kumar v. Union of India AIR 1997 SC 1125 stating that the judges of higher court
have to interpret legislation up to this end that the Constitutional values are not to be
interrupted. To achieve this end, the judges have to keep in mind that the legislature
passed the law, which is in harmony by way of establishment of the Indian
Constitution. The powers to review legislation are vested by way of the S.C.I. and

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
state’s higher courts, for the resolution of judicial assessment. The judicial assessment
of legislation is in conformism, through the establishment of the Constitution. 

In Brij Bhurshan vs State of Delhi AIR 1950 SC 129, the Supreme Court struck down
the East Punjab Public Safety Act 1950, on the ground that pre-censorship restricted
the freedom of the press.

Ramesh Thapper vs State of Madras, AIR 1950 SC 124, Supreme Court again struck
down the Madras Maintenance of Public Safety Act 1949, on the ground that unless a
law restricting freedom of speech and expression is directed against undermining the
security of the state or to overthrow it, such law cannot fall within the reservation of
clause (2) of Article 19.

Shankari Prasad vs Union of India AIR 1951, SC 455, at page 458. The First
Amendment was challenged on the ground that it abrogated the fundamental right.
The argument was based on the fact that the law under Article 13 (3) shall include the
constitutional amendment law. The Supreme Court rejected the contention and held
that the word law in Article 13 must be taken to mean rules or regulations made in
exercise of constitutional power and therefore A 13(3) did not affect amendments
made under Article 13 (3).

Sajjan Singh vs State of Rajasthan AIR 1965 SC 845, again the validity of the
constitution, 17th Amendment Act 1964 was in issue. The Court stuck to the position
laid down in Shankari Prasad case and held that the constitutional amendments made
under Art 368 fall outside the purview of judicial review by the courts.

This amendment was again challenged in Golaknath vs State of Punjab and Supreme

1. The power of parliament to amend the constitution is derived from Article 245 read
with entry 97 of list 1st of the constitution and not from Article 368. Article 368 only
lays down the procedure for the amendment of the constitution. Amendment is a
legislative process.

2. An Amendment is a law within the meaning of art 13 (3), including every kind of
law, statutory as well as constitution law and hence a constitutional amendment which
contravened Art 13 (3) will be declared void.

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
Invoking the concept of Implied Limitations on the parliament's power to amend,
Chief Justice Subba Rao held that fundamental rights were given a transcendental
position under our constitution and are kept beyond the reach of parliament.

In order to remove the difficulties created by the decision of Supreme Court in

Art 13 (4). "Nothing in this article shall apply to any amendment of this constitution
made under article 368."

Article 368. Procedure for amendment of the constitution was replaced by Power of
parliament to amend the constitution and the procedure thereof.

Article 368(3). "Nothing in article 13 shall apply to any amendment made under this
article."

Thus, this amendment restored the amending power of the parliament and also
extended its scope by adding the words " to amend by way of addition or variation or
repeal" any provision of this constitution in accordance with the procedure laid down
in Article 368.

In 1972, The Supreme Court was called upon to consider the validity of the 24th, 25th
and 29th Amendment in Keshavananda Baharti's case AIR 1973 SC 1461.  The
Supreme Court emerged victorious by asserting its institutional role Vis a Vis
parliament in constitutional powers and strengthening its powers of judicial review
through the Basic Feature Doctrine. The doctrine of basic feature has since become
the bedrock of constitutional interpretation in India.

The last straw was the Allahabad High Court's decision staying Mrs Gandhi's Election
as Member of Parliament. Indira Gandhi filed an appeal before the Supreme Court
from the decision of the Allahabad High Court in which it was held that the appellant
had committed certain malpractices in her election. Before Supreme Court could hear
the Appeal the parliament passed the Constitutional Amendment Bill 1975, which
inserted clause 329 A in the constitution and placed the election of Prime Minister and
Speaker beyond the purview of judicial scrutiny by way of judicial review.

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
Supreme Court held that the Democracy is the basic structure of the constitution.
Therefore, if by 329 A, any essential feature of democratic, republican, structure of
Indian polity is damaged or destroyed it would be ultra vires of the constitution.

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]