Power of Judicial Review - Constitutional Organs
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 (Article 226, Article32) which can declare a law unconstitutional if it is inconsistent with any of the provisions of Part III of the Constitution.
Meaning and basis of Judicial Review:
‘Judicial Review” is the power of courts to pronounce upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce and power to refuse to enforce such as they find to be unconstitutional and hence void. “Judicial Review” said Khanna, J., in the Fundamental Rights case, “has thus become an integral part of our Constitutional System and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of statutes.
If the provisions of the statutes are found to be violative of any of the articles of the Constitution which is the touchstone for the validity of all laws the Supreme Court and the High Courts are empowered to strike down the said provisions”.
The doctrine of judicial review was for the first time propounded by the Supreme Court of America. Originally, the United States Constitution did not contain an express provision for judicial review. The power of judicial review was however assumed by the Supreme Court of America in the historic case of Marbury Vs Madison.
In the Indian Constitution there is an express provision for judicial review, and in this sense it is on a more solid footing than it is in America. In The State of Madras Vs V.G.Row, Patanjali Sastri, C.J., observed, “Our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted ‘due process’ clause in the Fifth and Fourteenth Amendments.
If then, the courts in this country face up to 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 plainly laid upon them by the 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”.
But even in the absence of the provision for judicial review, the courts would have been able to invalidate a law which contravened any constitutional provision, for, such power of judicial review follows from the very nature of constitutional law. In A.K. Gopalan Vs State of Madras, Kania,C.J., pointed out that it was only by way of abundant caution that the framers of our Constitution inserted the specific provisions in Article 13.
He observed: “In India, it is the Constitution that is supreme and that a statute law to be valid, must be in all conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not.”
In Kesavananda Bharati’s case it has been held that Judicial Review is the ‘basic features’ of the Indian Constitution and, therefore, it “cannot be damaged or destroyed by amending the constitution under Article 368 of the Constitution”.
Again, in L. Chandra Kumar Vs Union of India, 1997, the Supreme Court has held that the power of judicial review of legislative action as vested in the High Court under Article 226 and in the Supreme Court under Article 32 is part of the basic structure of the Constitution and can be ousted or excluded even by the constitutional amendment.
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