Introduction:

Judicial Review basically is an aspect of judicial power of the state which is exercised the courts to
determine the validity of a rule of law or an action of any agency of the state. In the legal systems of
modern democracies it has very wide connotations. The judiciary plays a very important role as a
protector of the constitutional values that the founding fathers have given us. They try to undo the harm
that is being done by the legislature and the 3 executive and also they try to provide every citizen what
has been promised by Constitution. All this is possible because of the power of judicial review. India is
lucky enough to have a constitution in which the fundamental rights are enshrined and which has
appointed an independent judiciary as guardian of the constitution and protector of the citizen's
liberties against the forces of authoritarianism. In a true form of democracy, the rule of a fearless
independent and impartial judiciary is indispensable and cannot be over emphasized.

Judicial review of legislation is a result of two of the most fundamental features of Indian constitution.
The first is the two-tier system of law with the constitution as the Supreme law and other legislation
being the ordinary law which is valid only in so far as is consistent with the constitution. The Second is
the separation of the legislative, the executive and the judicial powers of the state. The exercise of each
of these powers is a function of the Legislature, the executive and the Judiciary as a separate organ of
the State. Deriving their powers from the constitution, the legislatures in India enact statutes. There is a
two-fold limitation on the validity of the statues. The Legislatures must have the competence to enact
them. Secondly, they must not conflict with the constitution. They would be invalid to the extent of their
repugnancy with the constitution. 'Judicial Review' stands for something which is done by a court to
examine the validity or correctness of the action of some other agency...

The constitution vests in judiciary, the power to adjudicate upon the constitutional validity of all the
laws. If a laws made by parliament or state legislature violates any provision of the constitution, the
Supreme Court has power to declare such a law invalid or ultra virus. So the process of judicial scrutiny
of legislative acts is called Judicial Review. Article 368 of the Constitution gives the impression that
Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme
Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With
the intention of preserving the original ideals envisioned by the constitution-makers. To Abraham
Lincoln, democracy meant a Government of the people, by the people and for the people. So in
democratic nation whenever any law passed by parliament violates any provision of constitution or
takes away any fundamental rights of the person, the Supreme Court has right and power to strike down
that law or act.

According to me this jurisdiction of Supreme Court is essential for protection of basic features of the
constitution.
Judicial Review in India The system of judicial review is also applicable in India. Although the term

Judicial Review has not been mentioned in the Constitution, the provisions of various Articles of the
Constitution of India have conferred the power of judicial review on the Supreme Court. Accordingly the
constitutional validity of a legislative enactment or an executive order may be challenged in the
Supreme Court on the following grounds -

1. Violation of fundamental rights.

2. Outside the competence of the authority which has framed it. 3. It is repugnant to the Constitutional
provisions.

The Supreme Court considerably widened the scope of judicial review in India through its judgement in
Maneka Gandhi's case. In this case, the Supreme Court accepted the concept of natural justice as one
essential component of law thereby importing the American concept of 'due process of law' into our
Constitution.

In the case of Charanjit Lal v. The Union of India', Justice Mukherjee observed: "The court should prima
facie lean in favour of constitutionality and should support the legislation if it is possible to do so on any
reasonable ground." In pursuance of this attitude the Supreme Court of India has enunciated the
doctrine of severability, which implies that only those portions of the law are declared as void which are
inconsistent with the provisions of the Constitution and the rest of the law is permitted to operate. The
Courts in India have exercised power of judicial review with great restraint and attached more
importance to the express words of the Constitution rather than the spirit of the Constitution.

CONSTITUTIONAL PROVISIONS

Judicial Review under the Constitution of India stands in a class by itself. Under the Government of India
Act of 1935, the absence of a formal Bill of Rights in the constitutional document very effectively limited
the scope of Judicial Review power to an interpretation of the Act in the light of the division of power
between the centre and the units. Under the present Constitution of India the horizon of judicial review
was in the logic of events and things, extended appreciably beyond a 'formal' interpretation of 'federal'
structure.

The debates of Constituent Assembly reveal, beyond any dispute, that the judiciary was contemplated
as an extension of the Rights and an 'arm of the social revolution'. Judicial Review was accordingly,
desired to be an essential condition for the successful implementation and enforcement of the
Fundamental Rights. Members of Constituent Assembly were agreed upon one fundamental point that
Judicial Review under the new Constitution of the U.S.A., where the doctrine was more an 'inferred'
than a 'conferred' power and more implicit than 'expressed' through constitutional provisions.

In the Report of the abhor Committee of Supreme Court, it was recommended that "a Supreme Court
with jurisdiction to decide upon the constitutional validity of acts and laws can e regarded as a necessary
implication of any federal scheme". This was eventually extended to an interpretation of the laws and
executive orders on the touchstone of the Fundamental Rights. In the Draft Constitution of India, this
power of Judicial Review in relation to fundamental rights found formal expression in Art. 8 (2) and Art.
25 (1) & (2) which, when adopted by the nation's representatives in the Constituent Assembly on
November 26, 1949, became the new Arts. 13 (2) and 32 (1) & (2), respectively, under the Constitution
of India.

However there was a sharp controversy among the members of the Constituent Assembly over the
perpetually veered question of reconciling the conflicting concepts of the individuals' fundamental and
basic rights and the socio-economic needs of the nation..

As a result Judicial Review, which was recognized as the basic and indispensable precondition for
safeguarding the rights and liberties of the individuals, was sought to be tempered by the urge for
building up a new society based on the concept of welfare and social righteousness. The consequence
was a drastic curtailment of the power of judicial Review of the Supreme Court of India. The overriding
need for 'security of the State' consequent on the partition of India and its after-math, and growing
fissiparous and subversive tendencies, merely provided further impetus to the process and made it a fait
accompli. What happened as a result was that the much debated 'Due Process Clause', which was
previously inserted in the original DraftConstitution, became the "first casualty", and was eliminated
from the purview of the Rights to Personal Liberty. Under Art. 21 of the new Constitution of India, it was
replaced by 'except according to procedure established by law', and in Art. 31 (1) it was substituted by
'save by authority of law."
envisaged in Arts. 19, 21, and 31, and reduce the Supreme Court's power of Judicial Review to one of
'formal' review. Lest Judicial Review stood in the way of social and economic progress, the door was
kept wide open, through a comparatively flexible amending procedure, to impose the ultimate will of
the popular representatives in the matter of removing constitutional limitations.

JUDICIAL APPROACH

The foundation of the Indian Supreme Court's Review-power was laid firmly and well in the case of A.K.
Gopalan v. State of Madras². This case not only elucidated the principle of Judicial Review and the basis
on which it would rest in future, but at the same time evolved a set off guidelines which would
eventually set the pattern for the fundamentals of judicial approach to the Indian Constitution. Form
'Gopalan' to 'Golaknath is, indeed, a long march, not only in respect of the nature and scope of Judicial
Review itself, but in regard to the impact and consequences of such Review on the attainment of social
objectives, too..

These two cases represent two distinct lines of judicial thinking, two distinct tendencies, and, also two
separate sets of social philosophy. One represents a halting, over-cautious and tradition-bound attitude
of the judiciary in restricting its own freedom of action by sticking to the express phraseology of the
Constitution, scrupulously avoiding the nations of 'Natural Justice' and 'Due Process', and construing the
law in favour of the legislature; the other represents a big, bold, and almost revolutionary effort to
resurrect Judicial Review by expanding its horizon beyond a literal interpretation of the Constitution,
introducing novel concepts like 'prospective overruling' and convening a Constituent assembly to amend
the Fundamental Rights, and by prohibiting any legislative amendment of Fundamental Rights in future.
The 'Gopalan' decision, while restricting the ambit of the individual's rights to freedom and personal
liberty, paved the way to the realization of the social objectives by its clear enunciation of the principle
of judicial subordination to legislative wisdom and discretion, and by its emphasis on social control of
individual liberties. The 'Golaknath' case, while trumpeting the individuals' basic liberties as sacrosanct
and transcendental, has indeed, made it almost impossible to enact social welfare legislation.

The Supreme Court of India has used the power of judicial review in various cases. We may refer to the
Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the
Keshwananda Bharti case (1973), the Minerva Mills case (1980) and so on. However while exercising the
power of judicial review, the Supreme Court has never adopted the American practise as it is.
One of the most significant cases decided by the Supreme Court was Golakhnath case of 1967in which
the Supreme Court held that the Parliament has no right to abridge or abrogate the Fundamental Rights
granted by the Constitution through an amendment of the Constitution. Thus it made the fundamental
Rights transcendental and superior to the constituent power of the Parliament through its power of
judicial review. The Supreme Court continued this attitude in the Bank Nationalisation and Privy Purses
cases and challenged the right of the Parliament to curtail the fundamental rights by the Parliament.
This attitude of the Supreme Court obliged the Congress Government to effect 24th, 25th and 26th
amendments in the Constitution. It also made a bid to curtail the right of the Supreme Court to declare a
law affecting Fundamental Rights under article 14, 19 and 31 as void of the law was passed to give effect
to the Directive Principles under Article 39 (b) or (c). These amendments were challenged in the
Keshwanand Bharati case.

During the emergency a bid was made to restrict the scope of judicial review through the Forty-Second
Amendment. The power to determine the constitutional validity of the central laws was exclusively
vested in the Supreme Court and the High Courts were deprived of their right in this regard.

The Janata Government on assumption of power made a bid to restore the powers which were taken
away from the judiciary during the emergency.by the Forty-Third Amendment passed in December 1977
it restored to the Supreme Court pre-emergency position with regard to power of judicial review over
the laws passed by the Parliament as well as the State Legislatures.

As a result of the Supreme Court judgement of March 1994 in the case of S.R.Bommal and others v. The
Union of India¹, also known as Assembly dissolution case, the scope of judicial review was further
widened. In recent years the judiciary has further widened his field of operation by declaring. judicial
review' as a basic feature of the Constitution. Thus the Supreme Court in India has not merely
interpreted the language of the Constitution but also pronounced on issues which involve matters of
policy.

IN Minerva Mill v. Union Of India: In this case the validity of 42nd amendment Act was challenged on the
ground that they are destructive of the 'basic structure' of the Constitution. The Supreme Court by
majority by 4 to 1 majority struck down clauses (4) and (5) of the article 368 inserted by 42nd
Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of
the constitution. It was ruled by court that a limited amending power itself is a basic feature of the
Constitution. The historical Judgement laid down that:
The amendment made to Art.31C by the 42nd Amendment is invalid because it damaged the essential
features of the Constitution. Clauses (4) and (5) are invalid on the ground that they violate two basic
features of the Constitution viz. limited nature of the power to amend and judicial review.. The courts
cannot be deprived of their power of judicial review. The procedure prescribed by Cl. (2) is mandatory. If
the amendment is passed without complying with the procedure it would be invalid. The Judgement of
the Supreme Court thus makes it clear that the Constitution is Supreme not. the Parliament. Parliament
cannot have unlimited amending power so as to damage or destroy the Constitution to which it owes its
existence and also

derives its power. IN L.Chandra kumar v. Union of India: Article 323-A and 323-B, both

dealing with tribunals, were inserted by the 42nd Amendment. Clause 2(d) of Art.323-A and Clause 3(d)
323-B provided for exclusion of the jurisdiction of the High Court under Art.226 and 227 and the
Supreme Court under Art.32.The Supreme Court in this case held these provisions as unconstitutional
because they deny judicial review which is basic feature of the Constitution. It held that the power of
judicial review vested in the High court under Art.226 and right to move the Supreme Court under
Art.32 is an integral and essential feature of the Constitution.

Conclusion:

Constitution has been working for about 60 years since it is adopted, but it is indeed very difficult to
make a correct appraisal of the course and development of Judicial Review, and its specific directions
and tendencies.Though the courts have the power of judicial review, the same cannot be exercised in an
arbitrary fashion. If the law-making power of parliament is not unlimited, the courts power to review the
laws passed by parliament is also not unlimited. Like other organs of the state, the judiciary derives its
powers from the constitution and the judges are as much under the constitution as anyone else. They
can interpret and invalidate laws but they cannot themselves assume the law making function; nor can
they confer that function on any person or institution other than the federal or provincial legislatures.
Nor can the courts make constitutional what is manifestly unconstitutional. Sovereignty is located
neither in parliament nor in the judiciary but in the constitution itself.

Despite various shortcomings of judicial review, it cannot be denied that it has played an important role
in ensuring constitutional government in the country by keeping the centre and the states in the
respective spheres. It has also enabled the Constitution to change according to changed conditions. by
imparting new meaning to the constitution. Through the exercise of this power, the Supreme Court has
protected the freedom of citizens and protected their Fundamental Rights against encroachment by the
legislative. and executive wings of the government.

There is nothing in the world which is bad or good for itself but it is its uses which make it bad or good.
This review system also has same situation. If Supreme Court use it only for country then it is very good
but if Supreme Court uses it and keeps their own interests in mind, it is worse for country as well as
countrymen.