POLITY

Judicial Review

Judicial Review

What Is Judicial Review?

  • The ultimate power of Judiciary to review and determine validity of a law or an order.

  • The power of a court to inquire whether a law, executive order or other official action conflicts with the Constitution and if the court concludes that it does, to declare it unconstitutional and void.

  • Judicial Review is one of the checks and balances to the doctrine of separation of powers.

  • Objectives of judicial review

  • Legitimizing government action

  • Protection of Constitution against any undue encroachment by the government


Subjects of Judicial Review – India

  • Violation of fundamental rights.

  • Violation of various legal rights/constitutional restrictions.

  • Enactment of statutes and other legislative/executive actions in violation of Constitutional mandate regarding distribution/separation of powers.

  • Delegation of essential legislative power by the legislature to the executive or any other body.

  • Violation of implied limitations and restrictions.


Action of Courts using Judicial Review:

Judicial Review


Features of Judicial Review in India

  • Both Supreme Court and High courts exercise the power of judicial review but ultimate and final power to determine the constitutional validity lies with the Supreme Court.

  • Judicial Review can be conducted in respect of all central and state laws.

  • Judicial Review applies only to the questions of law, not questions of fact.

  • Limitations - Judicial Review cannot be conducted on laws dealing with subjects in the ninth schedule of Constitution of India.

  • Judicial Review cannot be undertaken suo moto by the courts.


Judicial Review

Judgements on Judicial Review

  • S.P. Sampath Kumar v. Union of India - Justice P.N. Bhagwati, C.J. established that judicial review was a basic feature of Constitution.

  • L. Chandra Kumar v. Union of India - Bench stated: “that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.


Judgements on Judicial Activism

  • Navtej Singh Johar vs. Union of India – The Supreme Court decriminalized homosexuality by striking down Section 377 of the Indian Penal Code.

  • Indian Young Lawyers’ Association v. State of Kerala – Allowed entry of women into the Sabarimala Temple.

  • K.S. Puttaswami vs. Union of India – Right to Privacy declared a fundamental right under Article 21 and is enforceable against the State.

  • Vishaka v. State of Rajasthan – The Supreme Court laid down guidelines for prevention of sexual harassment of women at the workplace, which was followed for nearly 16 years before the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013).


Relevant Constitutional Provisions


Judicial Review


Judicial Activism / Legal Liberalism

  • Legal Liberalism is a fluid concept that loosely relates to the belief and faith in the Judicial system and the potential of the Courts to effect desirable and nationwide social change, especially in the improvement of the conditions of the less privileged and minority groups.

  • Legal liberalism in India would translate to the concept of judicial activism by courts, wherein the judiciary steps into the shoes of the legislature and the executive to make laws. A prime example of this would be the system of Public Interest Litigation, pioneered by Justice Bhagwati and Justice Krishna Iyer in the 1980s.

  • The Supreme Court, in particular, has actively participated in the evolution of the India’s legal jurisprudence through judicial activism and exercising its powers under Article 121 of the Constitution. For instance, in the case of Vishaka vs. State of Rajasthan, the Supreme Court laid down detailed guidelines for prevention of sexual harassment against women at the workplace, which were followed for 16 years before the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was passed.

  • However, the downside of judicial activism is the risk of judicial overreach, i.e. the Courts transcend the boundaries of the role of the interpreter of the constitution by stepping into the shoes of the legislature and the executive, in violation of the doctrine of separation of powers. The line between judicial activism and judicial overreach is a fine one, and often is subjective. However, some popular examples of cases of judicial overreach include the case of Shyam Narayan Chouksey v. Union of India, where the Court ordered that all cinema halls in India shall play the National Anthem before the feature film begins.

  • On several occasions, the Courts have ignored previous rulings while deciding on a particular subject matter in a case, which leads to confusion and filing of fresh cases which require clarification of the law. This increases the number of cases pending before the Courts, and contributes to the crisis in the Indian Legal System.


Judicial – Review, Activism & Overreach

Judicial Review


Conclusion – Way Forward

  • Judicial Review is the inevitable response of the judiciary to ensure proper check on the exercise of public power.

  • A general perception exists that the judiciary has been active in expansion of the field of judicial review into non-traditional areas.

  • Increased awareness of rights among people; trend of judicial scrutiny of a large number of significant government actions and the readiness of the executive to seek judicial determination of controversial issues have all resulted in the increasing significance of the role of the judiciary.

  • Given the crucial role of the judiciary in protection and even evolution of the law of the land, it is vital that the judiciary desist from passing ad hoc decisions without the backing of sound principles, particularly, when the decision appears to break new grounds.