Short note on judicial review

 Judicial review is the power of the courts to examine the legislative, executive and administrative actions of the government to determine whether such actions are consistent with the Constitution. Judicial review is usually considered to have begun with the assertion by John Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) that the Supreme Court of the United States had the power to invalidate legislation enacted by Congress.

The scope of judicial review is limited both in its availability and function: the role of the court is not to re­make the decision being challenged, or to inquire into the merits of that decision, but to conduct a review of the process by which the decision was reached in order to assess whether that decision was flawed and should be revoked.

The concept of Judicial Review has it foundation on the following constitutional principles:

(i) The Government that cannot satisfy the ‘governed’, the legitimacy of its action cannot be expected to be considered legitimate and democratic and such government also cannot expect to receive the confidence and satisfaction of the governed.

(ii) The government in a democracy is a government of limited powers, and a government with limited powers has to take recourse to a machinery or agency for the scrutiny of charges of legislative views and constitutional disobedience, and such act of scrutiny can be done impartially and unbiasedly only by the court.

(iii) Each citizen in a democracy, who is aggrieved of a legislative Act on the ground of constitutional violation, has the inherent right to approach the court to declare such legislative Act unconstitutional, and void.

(iv) In a federal State, judicial arbitration is inevitable in order to maintain balance between the Centre and the State.

(v) Where the constitution guarantees the fundamental rights, legislative violation of the rights can be scrutinized by the court alone.

(vi) The legislature being the delegate and agent of the sovereign people has no jurisdiction and legal authority to delegate essential legislative function to any other body.

Judicial Review is one of the cardinal features of Indian constitutional system. India has constitutional and limited democracy which imposes limitations on the power of the government and banks on majority rule to avoid tyranny and arbitrariness.

There is no express provision in the Constitution of India declaring the Constitution to be the supreme law of land, because they believed that when all the organs of government, federal and State, owe their origins to the constitution and derive powers there form, and the Constitution itself cannot be altered except in the manner specifically laid down in the Constitution.

The Indian Judiciary has also power of judicial review under the provisions of Articles 13,32, 131,136, 143,226 and 246.

In S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124 P.N. Bhagwati, C.J. declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was.

The Court further declared that if a law made under Article 323-A (1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

In Kihoto Hollohan v. ZachIIIhu, 1992 Supp (2) SCC 651 the Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.

In L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 a larger Bench of seven Judges unequivocally declared 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”.