By - Rattandeep Singh BBALLB & Anupreet Kaur, BA.LLB, (Students), University Institute of Legal Studies, Chandigarh University.
Abstract
A prominent tool that professes the courts with the authority to declare whether legislative and executive actions are lawful and in line with constitutional principles is referred as judicial review. With an emphasis on India's legal system, this paper explores the origin, evolution, and use of judicial review. From prehistoric legal custom to British colonial control and its official establishment in the Indian Constitution, it charts the evolution of judicial review over time. The study highlights key judicial precedents, such as Kesavnanda Bharati v. State of Kerala 1973, which upheld the basic structure theory and established judicial review as a fundamental component of constitutional governance. The study further explores the conflict between judicial review and legislative sovereignty by analyzing seminal instances such as Minerva Mills v. Union of India (1980) and the NJAC ruling (2015). The scope and restrictions of judicial review under Articles 13, 32, and 226 are also covered, with a focus on judicial restraint to avoid overstepping into the legislative and executive branches. The paper explores potential reforms, including the adoption of artificial intelligence and technological advancements to enhance judicial efficiency. Ethical consideration, transparency, and privacy concerns are also addressed to ensure a balanced integration of AI in the judiciary.
Introduction
The authority of the courts to examine the actions of the 3 independent organs of a country namely legislative, executive, and judiciary with a trajectory to declare whether such activity or action are by the constitution or not is judicial review. Actions or activities inconsistent are determined contrary to law and therefore, considered void. This dialogue at an ideal stage is powered by a written constitution. Unwritten or flexible constitutions like in the United Kingdom do not permit this. If a law goes into conflict with the long-standing constitution policies remain valid as overriding laws is only possible if a new law is passed.
The layman's terminology for the phrase judicial review could be more accurately named “constitutional review”, courts have this inherent tradition where they can do judicial review but cannot declare them unconstitutional or constitutional because of a long-standing practice. Therefore, these “administrative reviews” analyze the questionable activity of the functionaries against the bars of legitimacy and free from misuse.
In the United States Fourth chief justice (1801-35) is usually considered to have initiated the constitutional judicial review. The Supreme Court of the United States had the authority to overturn legislation enacted by Congress listed in the case Marbury v. Madison (1803).
Supremacy of Law is the soul of the Indian constitution. The grass-root feature is “Doctrine Of Judicial Review” in constitution of India and Emperor v. Burah (1877) was the first landmark case where the concept of judicial review was initially recognized, Court acknowledged the supremacy of judiciary to check the constitutionality of the administrative actions. In the landmark case of Shankari Prasad v. Union of India (1951) the Supreme Court declared the validity of First Constitutional Amendment (1951) stating that parliament had the power to amend any part of the constitution even the fundamental rights provided under Article 368.
Judicial review has a wider scope in consideration given to India as it not only covers the laws passed by the legislature but as well as the executive. The main focus is to safeguard the fundamental rights of the people by giving them writs to issue that can strike down any law that violates the Constitution. Under articles 32 and 226 of the Indian constitution writs like Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto are provided which are acting as a remedy for the citizens against any unfair administrative or legislative actions.
Historical Evolution of Judicial Review in India
In India judicial review was not a sudden expansion but a steady evolution influenced by ancient Indian legal traditions, Firstly the British colonial laws, and then, The Indian Constitution. As, the idea of the rule of law, which assures no one is above the law, has its traces back to ancient India. The Dharma (moral and legal order) in Hindu legal traditions, Sharia in Mughal law, and customary laws all contributed to the concept of judicial impartiality. However, during the ancient system judicial review was not present as a formal doctrine. It eventually developed systematically under British rule via legislation and judicial pronouncements. Before the Indian constitution, British laws exercised some restrictions on legislative powers, therefore it led to the steady development of judicial review. The Government of India Act, of 1958 focused on recognizing British rule in India after the 1857 revolt. The Governor General’s council had legislative or administrative power but with confinements imposed by the British parliament though in this no judicial review was provided but courts had the authority to interpret laws. After the foremost recognition of judicial review in the case of Emperor v. Burrah (1877) further recognition was conducted in the case Annie Besant v. government of Madras (1918) the Madras high court relying on the verdict of the privy council, ruled that British parliament was supreme and that if a law exceeded the bars set by the British parliament, it would be declared null and void.
When drafting the Constitution of India, the framers had the target of a supreme court with powerful judicial review authority. Therefore, they amalgamated the U.S. Model of the constitution allowing strong judicial review as the courts can invalidate laws violating the constitution and the British Model of following parliamentary system sovereignty withdrawing courts from striking down laws resulting in courts having the power to review laws under a written constitution with the parliament being subject to the constitutional guidelines and to ensure the compliance of administrative bodies the judiciary was deployed as the guardian of the constitutional provisions. The development of judicial review in India was intensely influenced by judicial review developments in the USA and the UK. The Indian constitution is flexible, specific & exact. Whereas the US constitution is very rigid and the UK has an unwritten constitution. In the Indian constitution, there are specific provisions of judicial review such as Article 13 of the Indian Constitution which states that any law that is inconsistent with the fundamental rights is void or Article 143 which gives powers to president to ask supreme court for its opinion of matters of public importance.Although the term judicial review is not clearly mentioned in these Articles but its essence can be founded under these Articles. For the contrast, the US Constitution highlights the supremacy of judicial power of the court in Art. III, IV, V but does not highlights specified provisions for judicial review, here the all the laws are validated by constitution depicting judicial review in US is the formulation by court. Shifting back to the UK parliament sovereignty overpowered constitution establishing democracy as the activity done by the parliament cannot be challenged before the court on whatsoever matter. Any kind of legislation passed by the parliament cannot be accountable to any kind of constitutional authority even if it is delivering an unjust. On the contrary, for the India and US all laws are subject to the supremacy of the Constitution and if any act or law violates the article and provisions of constitution, the court can strictlytake the discretion to ensure the legitimacy of law. Shifting the spotlight to judicial reviews of administrative acts are very vast in nature hence being subjected to the process of Judicial Review for the above-mentioned three countries. All the actions by the ewecutive bodies can be defined by courts if they are unfair, not rational and mala-fide by it’s nature as the ‘doctrine of ultra vires’ exist in the mentioned three countries. Indian constitution being specific and exact the supreme court had this feature to its disadvantage and it grinded hard to retain as much judicial review possible as possible in the Kesavananda Bharti Case a crossroad between validity of decision-making power by the court against parliament. The case Kesavananda Bharti Case (1973) had a landmark impact on ‘Judicial Review’ in India from establishment of the Basic Structure Doctrine supreme court stated parliament has not the authority to make changes or amendments in the constitution in a way that it change the spirit of the “basic structure” confirming that parliament have the power to amend constitution under article 368 but it cannot annihilate its essential and core features like democracy, fundamental rights and judicial review. This strengthened the judicial review to its core by validating the ‘Judicial Review’ as an inherent part of the basic structure by holding judiciary has the authority to strike down amendments which contrary to the basic structure thus confirming that parliament’s authority to amend the constitution was not absolute but a subject that violate the basic structure. This case prevented the probability of a government using a parliamentary majority to demoralize democracy or fundamental rights. For example, the judicial review itself was protected as a part of the basic structure, meaning parliament could not remove the court’s inherent power to review the laws or the amendments.
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