PROJECT

ON

JUDICIAL REVIEW AND THE

NINTH SCHEDULE

Submitted by

Under the guidance of

Dr. Mohammed Asad Malik

Associate Professor, Faculty of law

Jamia Millia Islamia

New Delhi.
 ACKNOWLEDGEMENT

I would like to thank the Almighty as without his grace it was not possible to complete
this project.

I would like to express my earnest and deepest gratitude to Dr. Mohammed Asad
Malik, Associate Professor, Faculty of Law, Jamia Millia Islamia, for giving me this
opportunity to do a project on such a valuable topic “Judicial Review and the Ninth
Schedule” and allowing me to present my view point in a liberal manner. His help and support
gave me the strength to complete this project with complete understanding. I am ever thankful
and indebted to Sir for his valuable guidance and friendly encouragement throughout the period
of research. His constructive comments and suggestions made the study very meaningful. I
acknowledge the sincere support and efforts of my esteemed and learned teacher and guide.

Lastly, I would like to thank all the staffs of the library, Academic section and all the
members of JMI family for their full support and assistance.

Thanking You

Shabih Fatima

i
 TABLE OF CASES

 A.K Gopalan v. State of Madras, AIR 1950 SC 27.

 Anuradha Bhasin v. Union of India, 2020 SCC Online SC 25.

 Dr. Bonhom’s Case, 8 Co, Rep 113b, at 118a.

 I.R Coelho v. State of Tamil Nadu, AIR 2007 SC 861, (2007) 2 SCC 1.

 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 159.

 Joseph Shine v. Union of India, AIR 2019 SCC 39.

 Kerala Bar Hotels Association v. State of Kerala, AIR 2016 SC 163.

 Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.

 L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

 Marbury v. Madison, 5 U.S. 137 (1803).

 Minerva Mills v. Union of India, AIR 1980 SC 1789.

 Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

 S.P. Sampath Kumar v Union of India, AIR 1987 SCC 124.

 S.R Bommai & Ors v. Union of India & Ors., (1994) 3 SCC 1.

 Shayara Bano v. Union of India, AIR 2017 SC 4609.

 Shiv Sena v. Union of India, W.P. No. 1393 (2019).

 State of Madras v. V.G Row, AIR 1952 SC 196.

 ABBREVIATIONS

 A.I.R. All India Reporter

 All Allahabad

 Art/Arts Article/Articles

 B.C. Before Christ

 Cr. Pc. Criminal Procedure Code

 Edn Edition

 SCC Supreme Court Cases

iii
 CONTENTS

Acknowledgement....................................................................................................................i

Table of Cases...........................................................................................................................ii

Abbreviations...........................................................................................................................iii

1. Introduction..........................................................................................................................1

2. Judicial Review......................................................................................................................1

3. History of Judicial Review…................................................................................................2

4. Judicial Review in India.........................................................................................................3

Rule of Law…...........................................................................................................3

Separation of Power....................................................................................................3

Theory of Checks and Balances................................................................................3

5. Constitutional Provision of Judicial Review….....................................................................4

6. Limitations of Judicial Review…..........................................................................................6

7. Recent Judgments on Judicial Review…................................................................................9

8. Conclusions............................................................................................................................9

Bibliography..............................................................................................................................11
 1. INTRODUCTION

Being the largest written Constitution in the world, The Constitution of India came into force
on 26th January, 1950. With 395 articles divided into 25 parts and 12 schedules, it is the
lengthiest Constitution in the world. The Preamble of India states India to be democratic
republic henceforth it there are three pillars of Indian Democracy, The Legislative, The
Executive and The Judiciary. One of the important reason as to why judicial review is
incorporated in the constitution is its need to be in conformity of the needs of the citizens of
India. By playing the role of the protector of the constitutional values, the judiciary has always
strived to be separate from the state or any other entity. It is a complete independent body. The
judiciary looks over the acts of the legislature and the executive and strives to undo the harm
done by them. It looks forward to provide every citizen what has been promised by the
Fundamental Rights and Duties and the Directive Principles of the State Policy which are
mentioned under the Constitution of India. Judiciary in India has faced many hindrances from
the time immemorial. The influence of the government, bureaucrats have always created a
trouble for the proper functioning of the judiciary but it has still maintained its position of a
guardian of rule of law in the society. One of the tools of Judiciary to look over the acts of the
other two institution is thus, Judicial Review. The concept of Judicial Review has not been
included as any separate provision but instead is found in the very spirit of the Constitution of
India. In a federal state such as India it is important to maintain a federal balance and therefore
an impartial institution becomes a basic need. A quality of a good constitution is that it should
possess some limitations and restrictions on the power of the government and the legislature.
Hence, it should provide for the power of Judicial Review over constitutional amendments and
legislative acts.

2. JUDICIAL REVIEW

Judicial Review is a practice to review any legislative or executive action. It is the power of the
court to determine the constitutionality of legislative acts instituted by aggrieved persons. It is
the power of the court to declare any law or act void on the ground of constitutionality.

1
The Doctrine of Judicial Review originated for the first time by the Supreme Court of America.
At first, the United States of America did not contain any expressed provision of judicial
review in is Constitution, however, it got incorporated by the historic case of,
Marbury v. Madison1: The federalists after losing an election in 1800, created several new
judicial post before leaving which were confirmed by the Senate and they were signed and
sealed. The Federalist’s Secretary of State, John Marshal failed to deliver some positions. The
new President instructed his secretary of State, James Madison not to deliver seventeen of these
commissions which included one for William Marbury. Marbury filed a petition in Supreme
Court to issue a writ of Mandamus to Secretary Madison asking him to positively deliver the
commissions It was held that Constitution is the paramount and Supreme Law and every other
Act or Legislation is an ordinary law which if repugnant to the Constitution should be held
void.
It was with this that the concept of Judicial Review was formed for the first time. It later founds
its root in,
Dr. Bonham’s Case2, where Coke CJ stated that, “when an act of parliament is against a right
or reason or repugnant or impossible to perform, the common law will control it and adjudge
such act to be void.”3
3. HISTORY OF JUDICIAL REVIEW

The High Courts and the Supreme Court have this power because judiciary is a touchstone to
ascertain the truthfulness of actions of other organs and authority. Judiciary when approached
confirms whether the actions of the wings of the government are in accordance with it or not.
This power vested in Judiciary to decide validity is known as “Judicial Review”.

It is the power of the courts to pronounce upon the constitutionality of the legislative acts
which fall within their normal jurisdiction and the power to refuse to enforce such as they find
to be not in line with the constitutional values and hence are void. 4

1
5 U.S. 137 (1803).
2
8 Co, Rep 113b, at 118a.
3
Ibid.
4
Dr. J.N. Pandey, Constitutional Law of India, 28 (Central Law Agency, Allahabad, 57thedn, 2020).
 4. JUDICIAL REVIEW IN INDIA

The basis of Judicial Review in India is formed on principles of, Rule of Law, Separation of
Power and the system of Checks and Balances. The power of judicial review has in itself
incorporated the basic feature of the Indian Constitution which is rule of law. Any action taken
by the state has to be scrutinized under the doctrine of rule of law under the conditions of
reason of doubt raised for any legislative or executive action, which is indeed done by the
judiciary.

The basis of Judicial Review in India:

Rule of Law: The Rule of Law is propounded in the Article 14 of the Constitution of
India. It guarantees that every person within the territory of India shall not be denied equality
and shall be governed equally in the view of the law.5

Separation of Power: Separation of powers means distribution of powers for specified

functions of the state. All the powers of the government have been interpreted to be falling
within one or another of three great classes, as- (1) the enactment of laws, (2) the interpretation
of laws and (3) the enforcement of laws; namely- legislative, judiciary and executive.
Government has been deemed to be made up of three branches serving for their functions and
such classification is recognized as classical division.6

Theory of Checks and Balances: The system of checks and balances is a part of proper
functioning of three branches of government. It guarantees that no part of the government
becomes too powerful. If we look it in the purely Indian context, three agencies of government
are given different powers but not in absolute form. All three have their own powers and
functions but another can interrupt in its function if the former has acted against constitutional
provisions in described manners.

5
Rule of Law, available at: http://www.legalserviceindia.com (Last visited on November 5th, 2020).
6
Separation of Power, available at: http://www.latestlaws.com (Last visited on November 5th, 2020).
 5. CONSTITUTIONAL PROVISIONS OF JUDICIAL REVIEW

 Article 13 (1) and Article 13 (2):

Article 13 (1): All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to
the extent of such inconsistency, be void.7

Article 13 (2): The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the extent of
the contravention, be void.8

In K Gopalan v. State of Madras9: Kania C.J stated that, “inclusion of Article 13 (1) and 13 (2)
is a matter of abundant caution”.

Hence, this article gives the power to judiciary to declare any law void.

 Article 32 and Article 226:

In L. Chandra Kumar v. Union of India,10 the Supreme Court held that, with respect to the High
Courts, the power of Judicial Review is incorporated in Articles 226 and 227 of the
Constitution. Article 32 and Article 136 are in regard to the Supreme Court of India, and
therefore the judiciary in India has come to control by this feature of judicial review every
organ of governmental and public functions.

The Supreme Court in L. Chandra Kumar v. Union of India11pronounced the broad aspects of
Judicial Review. The judgment implied that the judges of the Higher Court to look over the
legislation in such a manner that any constitutional values are not compromised. The judicial
assessment of legislation is in conformism, through the establishment of the Constitution.

7
The Constitution of India, art 13.
8
Ibid.
9
AIR 1950 SC 27.
10
AIR 1997 SC 1125.
11
Ibid.
 Article 245:

(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or
any part of the territory of India, and the Legislature of a State may make laws for the whole
or any part of the State.

(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have
extra-territorial operation.12

Hence the Parliament can make laws and judiciary can amend it.

In State of Madras v. V.G Row13 Patanjali C.J., stated that, “our Constitution contains express
provisions for judicial review of legislation as to its conformity with the Constitution.”

 Article 368:

In Keshavananda Bharti v. State of Kerala,14 the Supreme Court of India held that the judicial
review comes under the ‘basic structure’ of the Indian constitution and hence cannot be
amended or challenged by amending the constitution under the Article 368 of the Constitution
of India.

This was also applied in the case of Indira Nehru Gandhi v. Raj Narain.15

In Minerva Mills v. Union of India,16the Article 368 (4) and 368 (5) were declared
unconstitutional as they were believed to be informal methods.

 Article 323:

In S.P. Sampath Kumar v.Union of India,17The validity of art. 323-A was upheld by the
Supreme Court and the Act as the necessary changes suggested by the court were incorporated
in the Administrative Tribunal Act.

12
The Constitution of India, art 245.
13
AIR 1952 SC 196.
14
AIR 1973 SC 1461.
15
AIR 1975 SCC 159.
16
AIR 1980 SC 1789.

5
Judicial Review can also be exercised on the executive action:

S.R Bommai & Ors v Union of India & Ors. 18The Court held that Presidential proclamation
under Article 356 is not absolute and the power conferred by Article 356 on president is
conditioned power. The Supreme Court held that presidential proclamation is not immune from
judicial review.

Shiv Sena v. Union of India19 In this case similar guidelines from the case of S.R.Bommai &
Ors v Union of India, were pleaded.

6. LIMITATIONS TO THE JUDICIAL REVIEW

 Ninth Schedule:
In 1951, the first Constitutional Amendment added exception to the Article 13 (2). Article 31 A
and 31 C were also inserted. It also brought about an addition of Ninth Schedule in the
Constitution of India with regard to Article 31 B to save those legislations which were made on
dealing with the land reforms.
Article 31 A: This stated that, no law providing for the acquisition by the state of any estate or
rights, taking over the management of any property by a state for a limited either in the interest
of the public or to look after the proper management of a property or collaboration of two
corporations in public interest or looking after the management of any of the corporation, the
decline or changing of any rights of the agents, secretaries or treasures etc., or extinguishment
or modification of any rights arising from an agreement lease or license for searching, or
winning, mineral or mineral oil or premature termination or cancellation of such agreement,
lease or license, shall be deemed to be void on the ground that it is inconsistent with or takes
away or approaches any of the rights conferred by Art.14 or Art.19 of the Constitution of India .
Article 31-B validated certain acts and regulations if without prejudice to the generality of the
provision in Art.31-A they were put under 9th Schedule, and that the provisions thereof shall
not be deemed to be void on the ground that they are inconsistent with, or take away or abridge

17
AIR 1987 SCC 124.
18
(1994) 3 SCC 1.
19
W.P. No. 1393 (2019).
any of the rights conferred by Part III of the Constitution. The amendment saved the conflict of
such legislations with fundamental rights.
In I.R Coelho v. State of Tamil Nadu20, this historic judgment upholds the right of judicial
review and the supremacy of judiciary in interpreting the laws. The “Basic Structure Doctrine”
21
was held unanimously by a nine judges bench in this judgment.the authority of the judiciary
to review any such laws, which destroy or damage the basic structure as indicated in Art.21
read with Art.14, Art.19 and the principles underlying there under, even if they have been put
in 9th Schedule was upheld. The judgment reiterates and gives the controversial supremacy to
interpret laws to the judiciary in an ongoing struggle of supremacy between the judiciary and
thelegislative.
It was held by the Supreme Court that if the validity of any of the laws present under the 9th
Schedule has already been upheld by the court, it shall not get open to the challenge the law
again on the principles declared by the judgment, notwithstanding that the law is violate of any
rights under Part III.
 No Judicial Review in policy matters:
In Kerala Bar Hotels Association v. State of Kerala,22 it was stated that “the courts must be
loath to venture into an evaluation of state policy which must be given a reasonable time to pan
out. If a policy proves to be unwise, oppressive, or mindless, the electorate has been quick to
make the Government aware of its folly.”
In policy matters if the policy is arbitrary, unfair or is violative of any of the rights mentioned
under Part III of the Constitution, only then can be judicial review justified.
 Article 74 (2): Article 74(2) barred courts from inquiring into the advice given by
Council of Ministers to President. In a way the advice of Council of Ministers was kept out of
Supreme Court's power of Judicial Review by this article.23
 Article 77 (2): Orders and other instruments made and executed in the name of the
President shall be authenticated in such manner as may be specified in rules to be made by the
President, and the validity of an order or instrument which is so authenticated shall nor be

20
AIR 2007 SC 861, (2007) 2 SCC 1.
21
Keshavananda Bharti v. State of Kerela, AIR 1973 SC 1461.
22
AIR 2016 SC 163.
23
The Constitution of India, art 74.
called in question on the ground that it is not an order or instrument made or executed by the
President24
 Article 122: Courts not to inquire into proceedings of Parliament

(1) The validity of any proceedings in Parliament shall not be called in question on the ground
of any alleged irregularity of procedure

(2) No officer or member of Parliament in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of business, or for maintaining order, in
Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of
those powers25.

 Article 214: Courts not to inquire into proceedings of the Legislature

(1) The validity of any proceedings in the Legislature of a State shall not be called in question
on the ground of any alleged irregularity of procedure

(2) No officer or member of the Legislature of a State in whom powers are vested by or under
this Constitution for regulating procedure or the conduct of business, or for maintaining order,
in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by
him of those powers.26

 Article 262: Adjudication of disputes relating to waters of inter State rivers or

river valleys

(1) Parliament may by law provide for the adjudication of any dispute or complaint with
respect to the use, distribution or control of the waters of, or in, any inter State river or river
valley

24
The Constitution of India, art 77.
25
The Constitution of India, art 122.
26
The Constitution of India, art 214.
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither
the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute
or complaint as is referred to in clause ( 1 ) Coordination between States27.

7. RECENT JUDGMENTS ON JUDICIAL REVIEW

 Shayara Bano v. Union of India28: The concept of triple talaq gives unilateral power to
the husband to divorce his wife and is arbitrary and hence is unconstitutional, was held by
Supreme Court.
 Joseph Shine v. Union of India29: It was held by the Supreme Court that Section 497 of
the Indian Penal Code is unconstitutional.
 Navtej Singh Johar v. Union of India30: The Supreme Court held that the Section 377 of
the Indian Penal Code is violative of the fundamental rights mentioned in Part III of the
Constitution and hence declared it unconstitutional.
 Anuradha Bhasin v. Union of India31: The Supreme Court of India directed the Union
Territory of Jammu and Kashmir to review the orders which suspended the internet services
and the orders which are not parallel with law must be revoked. Article 19 and Article 19 (1) g
protects the right to freedom of speech and expression and freedom to practice any profession
over the medium of internet.
8. CONCLUSIONS

After a reasonably detailed study of the above concepts, the amendments and the cases stated
therein, it is only natural to come to the conclusion that the Indian constitution holds the idea of
Judicial Review in high esteem though legislations over the time have shown that the same
could not be upheld as there was a lack of Judicial Activism at the earlier period of time. The
Constitution of India has been established as supreme and the basic structure that has been
highlighted in the Preamble of the same has been seen as utopian in nature thus keeping it out
of the ambit of any sort of legislation, it forms the guiding light for those who propound the

27
The Constitution of India, art 262.
28
AIR 2017 SC 4609.
29
AIR 2019 SCC 39.
30
AIR 2018 SC 4321.
31
2020 SCC Online SC 25.
idea of Judicial review along with Part III of the constitution. Judiciary is thus considered to be
the custodian of the rights of the people in the territory of India. In a federal Constitution, it has
another important role of determining the limits of the powers of the center and the state
through judicial review. Hence, it becomes necessary that the judiciary shall be kept
independent of the influence from the legislative as well as the executive.
 BIBLIOGRAPHY

A. Primary Sources

I. The Constitution of India, 1950.

B. Secondary Sources

II. Books
 C.D Jha, Judicial Review of Legislative Acts, 98 (LexisNexis, Butterworths,
Wadhwa, 2009).
 Dr. J.N. Pandey, Constitutional Law of India, 28 (Central Law Agency, Allahabad,
57thedn, 2020).
 Durga Das Basu, Commentary on the Constitution of India, ( LexisNexis,
Butterworths, Wadhwa, 9th Edn).

III. Websites

 Rule of Law, available at: http://www.legalserviceindia.com (Last visited

on November 5th, 2020).

 Separation of Power, available at: http://www.latestlaws.com (Last visited on

November 5th, 2020).