The doctrine of judicial review originated in the USA. It was first propounded in the case of Marbury vs Madison in 1803. The Indian Constitution confers the power of judicial review on the Supreme Court as well as High Courts. Judicial review has been declared as one of the basic structure of the Constitution by the Supreme Court.
Judicial review is the power of courts to examine the legislative enactments and executive orders of the Central as well as State governments to check its constitutionality. If such enactments or orders are found to be in violation of the Constitution, they shall be declared null and void.
Justice Syed Shah Mohamed Quadri, in judicial review of administrative action, has classified judicial review into the following three categories:
- Judicial review of constitutional amendments
- Judicial review of legislation of Parliament and State Legislatures and subordinate legislations
- Judicial review of administrative action of the Union and State and its authorities
Judicial review is necessary so as:
- To uphold the supremacy of the Constitution
- To protect the fundamental rights
- To maintain the balance between the centre and the states
In Kesavananda Bharati vs State of Kerela, the court held:
‘as long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with the view to see that the guarantees afforded by these rights are not contravened.’
Constitutional Provision Regarding Judicial Review
Various articles of the Constitution have conferred the power of judicial review on the Supreme Court and the High Court. These articles are:
- Article 13 declares that law inconsistent with fundamental rights shall be null and void.
- Article 32 guarantees the right to move to the Supreme Court for enforcement of fundamental rights.
- Article 131 deals with the Supreme Court’s original jurisdiction in dispute regarding centre and state and between states.
- Article 132 deals with the appellate jurisdiction of the Supreme Court in constitutional cases.
- Article 133 deals with the appellate jurisdiction of the Supreme Court in civil cases.
- Article 134 deals with the appellate jurisdiction of the Supreme Court in criminal cases.
- Article 134A deals with the certificate for the appeal to Supreme Court.
- Article 135 entitles the Supreme court the power to exercise jurisdiction and power of the Federal Court under any pre-constitutional law.
- Article 136 deals with Supreme Court’s power to grant special leave to appeal from any judgement, decree, order, sentence (except law relating to armed forces).
- Article 143 deals with the power of the President to consult with the Supreme Court regarding any question of fact or law which is of public importance.
- Article 226 deals with the power of High Courts to issue writs for the enforcement of fundamental rights or any other purpose.
- Article 227 deals with the power of superintendence of the High Court over all courts and tribunals throughout the territories concerning which it exercises jurisdiction.
- Article 245 deals with the extent of laws made by Parliament and the Legislature of States.
- Article 246 deals with the subject matter of laws made by Parliament and the Legislature of States.
- Article 254 provides that in cases of conflict between central and state law, the central law shall prevail over the state law.
- Article 372 deals with continuance in force of pre-constitutional law.