Judicial review in India

Judicial review in India. It is a cornerstone power of the Supreme Court of India and the High Courts of India to examine the constitutionality of legislative enactments and executive actions. This power, though not explicitly named in the text, is derived from the provisions for Writ jurisdiction in India and the court's role as the ultimate interpreter of the Constitution of India. The doctrine ensures that the actions of the Parliament of India and the Government of India conform to the constitutional framework, safeguarding Fundamental Rights in India and upholding the principle of Separation of powers in India.

Constitutional basis

The constitutional foundation for judicial review is embedded in several articles. Article 13 of the Constitution of India explicitly states that any law inconsistent with or in derogation of the fundamental rights shall be void, empowering the judiciary to strike down such legislation. The writ powers under Article 32 (for the Supreme Court of India) and Article 226 (for the High Courts of India) provide the procedural mechanism to enforce these rights against the state. Furthermore, Article 141 establishes that the law declared by the Supreme Court of India is binding on all courts within the territory of India, cementing its authoritative interpretive role. The power is also inferred from the federal structure delineated in the Constitution of India, which requires an arbiter to resolve disputes between the Government of India and the States and union territories of India.

Scope and powers

The scope of judicial review in India is extensive, covering the review of constitutional amendments, legislative acts, and administrative actions. Courts can examine laws for violation of Fundamental Rights in India or for transgressing the distribution of powers between the Parliament of India and State Legislatures under the Union List, State List, and Concurrent List. Through Public interest litigation in India, the judiciary has expanded its reach to address executive inaction or negligence affecting the public at large. The power extends to reviewing the actions of constitutional bodies like the Election Commission of India and statutory authorities. However, the courts exercise restraint in matters of policy, fiscal management, and appointments, adhering to the doctrine of Separation of powers in India.

Landmark cases

Several landmark judgments have defined and expanded the scope of judicial review. In Kesavananda Bharati v. State of Kerala, the Supreme Court of India propounded the Basic structure doctrine, holding that Parliament's power to amend the Constitution of India under Article 368 is not unlimited and cannot alter its basic structure. The Minerva Mills v. Union of India case reinforced this doctrine. In Maneka Gandhi v. Union of India, the Court gave an expansive interpretation to Article 21 (right to life), making the procedure established by law requirement fair and just. The case of S. R. Bommai v. Union of India established strict guidelines for the imposition of President's rule under Article 356, making such proclamations subject to judicial review.

Limitations and criticisms

Despite its vital role, judicial review faces limitations and criticism. The doctrine of Separation of powers in India mandates that the judiciary not encroach upon the domains of the Lok Sabha and the Rajya Sabha, leading to the development of the "self-restraint" principle. Critics, including figures like Nani Palkhivala and H. M. Seervai, have occasionally accused the judiciary of judicial overreach or "judicial activism," particularly through Public interest litigation in India, arguing it disrupts the balance of power. The process can also be time-consuming, leading to delays in governance and policy implementation. Furthermore, the power is limited by the text of the Constitution of India itself and the practical inability to review certain actions like those pertaining to the Comptroller and Auditor General of India in their official capacity.

Comparison with other jurisdictions

The Indian model of judicial review is a unique blend, drawing from but differing significantly from other major systems. Unlike the United States, where judicial review was established by Marbury v. Madison and is diffuse (exercisable by all courts), in India it is concentrated primarily in the higher judiciary—the Supreme Court of India and the High Courts of India. It differs from the United Kingdom's system, which, prior to the Human Rights Act 1998, was based on parliamentary sovereignty, though Indian courts do apply principles of proportionality similar to those used by the European Court of Human Rights. The Basic structure doctrine finds a parallel in the German Constitutional Court's concept of "eternity clauses," but remains distinctively Indian in its formulation and application by the Supreme Court of India. Category:Law of India Category:Indian judiciary Category:Constitutional law