JUDICIAL REVIEW

Submitted by

Akanksha Rajput
Garima Srivastava
Jharna Saksena
Nishachay Tiwari
Pratibha Maurya
Sharad Trivedi

Of

Faculty of Law

Dr. Shakuntala Misra National Rehabilitation University, Lucknow

Under the guidance of

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 ACKNOWLEDGEMENT
I would like to convey my special thanks of gratitude to my teacher who gave me the golden
opportunity to do this wonderful project on JUDICIAL REVIEW which also helped me in
doing lot of research and I came to know about so many new things.

I am really thankful to her.

Secondly I would also like to thank my parents and friends who helped me a lot in finishing
this project within the limited time.

I am making this project not only for marks but to also increase my knowledge.

THANKS AGAIN TO ALL WHO HELPED ME

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 INDEX

1. Introduction………………………………………………………………......4
2. Provisions of Judicial Review in the Constitution……………………….…..5
3. Supremacy of Indian Judiciary………………..……………………………..7

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Judicial review and Constitution

The matter related to judicial review of administrative achievement, which generally has
complicated the foundation of common law doctrine such as doctrine of proportionality,
doctrine of legitimate expectation, doctrine of reasonableness and principle of natural justice.
The Indian Constitution has given influences to the state’s higher courts and to the S.C.I. to
scrutinize the legitimacy of administrative action and the statutes.

The main objects of judicial review are to guard the rights of the public’s and implement the
fundamental rights as mentioned in the Indian Constitution. In the difficulty of State and
Centre relation, Article 246 and Scheduled 7th of the Constitution has clearly marked the
working zone between the regulation construction controls of states lawmakers and the Indian
Parliament for Union. The higher courts approach to the Supreme Court of India when a
question is raised in the interest of public and the competence of legislation.

The judicial review has evolved in the three dimension, before the Indian courts first, to
protect the legality of essential rights surefire underneath the Part three of the Constitution,
second, to authorize the disinterest of organizational achievement and third, the interrogation
of public interest and legislative competence between Centre and State relation.

Under Article 32 of the Constitution, the S.C.I. has the gear stick to contrivance the
indispensable rights. The inhabitants of India have the rights under Article thirty-two to
approach directly to the Indian Supreme Court for on the lookout for cure in contrast to the
destruction of the essential rights. Nevertheless, the prerogative of the fundamental rights is
itself the portion of the essential right of the Indian publics.

Wherever the Indian Supreme Court has the powers to enforce these right in the form of writ,
such as writ of habeas corpus, which expression the technique the influence to liberation the
individual on or after illegitimate confinement, writ of quo-warranto, which directs the
person to vacate the office they assumed wrongfully, writ of mandamus directs the public
authority to do his work, writ of certiorari, which directs the judiciary to take away the
scheduled of subordinate judiciary and transport beforehand itself, writ of prohibition which
prohibits the lower court from proceeding of a case. Other than S.C.I., the state’s higher
courts have the influence under Article two hundred twenty-six of the Constitution to
implement the writ, in case of contravention of essential rights in contrast to the inhabitant of
India.

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In the recent decades, the initiation of Public Interest Litigation, the Article 32 of the
Constitution has been interpreted creatively into the shape of innovative remedies for
ensuring the executive authorities to comply the judicial direction. In the case of PIL the
judges are applying private remedies such as stay orders, injunctions and other remedies,
which are essential to enforce in the interest of the public.

Provisions of Judicial Review in the Constitution

The Constitution framers of India made facility for the judicial assessment, on the foundation
of the America’s Constitution. The controls of the parliament under the Indian Constitution
are divided between Center and States. The S.C.I. has influence to assessment the
legislations, which were endorsed by the assemblies of states or by the Indian parliament. The
judicial review has been decided by the Indian Constitution to the state’s higher courts and to
the S.C.I.

Article 13 (2) of the Indian Constitution believed that countrywide shall not creäte any
regulation, those abbreviates or take absent the right as deliberated in its Part three, in respect
of important rights of the inhabitants of India. If any rule was created against this clause of
the Constitution, it will come within the purview of infringement and will be declared as
void. The clause denoted meaning of law; it has included usage or custom, ordinance, bye-
law, order, notification, regulation and rule, which is enforced in the domain of India. The
meaning of law in force, represents that the law made or passed by legislature or authority
competent inside the province of India beforehand the Indian Constitution come in force.
Such law or any part thereof was not cancelled earlier in all or in a particular location is not
in operation, it may be called laws in force.

The facilities of rights of legitimate remedies have been provided in the Article 32 of the
Constitution. The injured somebody can travel to the Indian Supreme Court, for a suitable
proceeding for execution of the rights deliberated and guaranteed as essential right under Part
three of the Constitution. The S.C.I. has the influence to production of writs, order and
direction, which might be suitable for the implementation of essential rights by method of
any of the writs.

It is the power to issue order, direction and/or writ whichever is suitable for execution of any
rights amalgamated in Part three of the Indian Constitution. The Parliament has been
capitalized with control or powers to a little additional judiciary, for working out inside their

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confined parameters, of this one dominion under clause (1) and (2) of Article 32. However,
such power given to the S.C.I. under Article thirteetwo shall not be suspended, separately
from as otherwise obtainable for, under the Indian Constitution.

The S.C.I. has the innovative dominion in any disagreement under Article one hundred thirty-
one of the Indian Constitution for dispute between two States or difference amongst Indian
government and states one or more or between two or more than two state. If the question
involved of law and fact on which the legal rights depend. The judicial review is subject to
provision under the Article 131of the Indian Constitution.

Section 5, Constitution Amendment Act, 1956, the seventh amendment of Constitution has
made it clear that the provision provided be going to not spread to the argument ascending
available of any arrangement, assignation, sanad, treaty, covenant, or additional mechanism
of a similar nature, which have been applied or executed beforehand the implementation of
the Constitution. But after the Constitution came in force this jurisdiction is available.

The Article 132 of the Constitution of India has provides appellate authority to the S.C. I. The
person who is not satisfied with direction or verdict of the Higher courts of states, might line
of attack over and done with the plea to the Indian Supreme Court, under this Article. The
appeal to the Supreme Court of India may be in criminal matter, civil matter or other matters.
The appeal can be made against final order, decree or judgment of High Court, within the
domain of India.

The word final order refers to order, which has been decided in favor of the appellant. Under
Article 132, the concerned High Court has to certify before making the appeal to the Supreme
Court under Article 134A stating, that the case encompasses significant interrogation of rule.
When the concerned High Court has given such certificate to the party, the party might
petition to the S.C.I. on the basis of that, which has been alleged erroneously pronounced by
the High Court.

Under Article 133 judicial review can be made in the civil matters on plea from the higher
courts of states to the Supreme Court on receiving its final order, decree of judgment of civil
proceeding, within the domain of India. The concerned High Court need to certify, under
Article 134A, that the concerned matter is having considerable interrogation of rule, which is
of wide-ranging reputation and the High Court should find that it has general importance and
required decision by the S.C.I. When a plea from the High Court has been decreed the Indian

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Supreme Court, will not agree to plea to be made, unless the Parliament of India, by law may
remove its effect. Under Article 135, powers and jurisdiction of the federal court for judicial
review, which more than existing one now work out by the Indian Supreme Court. Under this
article the Indian Supreme Court likewise has controls and influence in relation to any matter,
whether the provisions of the Article 133 or Article 134 are provided or not. The power and
influence of the Indian Supreme Court will also be applied on any matter of judicial review,
instantly beforehand the implementation of this Constitution under any standing rule.

The Constitution has authorized to the Indian Supreme Court, under Article one 136 of the
power to grant special leave to plea. The Indian Supreme Court, on its pleasure can award
special leave to plea after any order or sentence, decree, determination and judgment of any
matter or cause, which has been made by any tribunal or court in the domain of India. In the
least tribunal or judiciary established under any legislation in reverence to the Armed Forces,
Article 136 of the Constitution is applicable to any order or sentence, determination, and
judgment.

Under Article 143 of the Constitution, requirements are available that Indian President can
mention to the S.C.I. The President, if he feels at any time that the question of law and fact is
expected to rise or has ascended, which is in the nature of public importance and convenience
can take the opinion of S.C.I., and the S.C.I., subsequently enquiry the case can give opinion
or recommendation to the president.

Under Article one hundred forty-five make available the legislation of the judiciary. Under
this Article Indian Supreme Court is specified controls, subject to the endorsement of the
Indian President, making rules and regulations mainly for procedure and practice of the
Indian courts from time to time. Therefore, to create some rule on the problem of technique
and practice, the Parliament enjoys the supreme authority.

Supremacy of Indian Judiciary

The gradual development of judicial assertion of supremacy can be perceived through the
inspection of law case of the S.C.I. meanwhile freedom frontwards. In the early decades the
Supreme Court took very cautions, modest and slow steps. However, at the same time, it was
persistent and secured development of jurisprudence and judicial supremacy.

The case of C. Golaknath (1967), was very important for judicial review under constitutional
development. In this case the State government of Punjab declared 418 acres’ surplus land,

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leaving for all heirs share only of 30 acres. The C. Golaknath challenged Punjab land Act,
1953 under Article thirty-two of the Indian Constitution in the Supreme Court on the based
that identical fortification of rule and fairness beforehand rule. The government had denied to
acquire property and practice any profession of the people under fundamental rights. The
Supreme Court of India declared Ist, 4th and 17th amendment Acts, and therefore of Punjab
Land Act, 1953 which had placed it under ninths Scheduled of the Indian Constitution, as
ultra vires.

This case complicated dualistic interrogations, under Article 13 (2), that any legislation which
takings absent or condenses right after the essential rights of the person, the State shall not
make any such law, so the constitutional modification Act is a rule under Article 13(2). There
is indirect restriction on the altering control of the parliament of India. That the essential
rights are the elementary construction of the Constitution. Henceforth, the parliament cannot
alter the elementary construction of the Indian Constitution.

A bench of eleven judge, which had corrected and considered the view, in case of Sajjan
Singh1 and earlier in case of Sankari Prasad2 detained that the modification of the
Constitution is law, if abbreviates, the privileges replicated in Part three of the Constitution, it
is void. It is vibrant from the day of the verdict of the S.C.I. The Parliament has no
mechanism to change Part three of the Constitution, which abridges the essential rights.

Chief Justice, Indian Supreme Court Justice Gajendra Gadkar who was the writ in their
majority opinion held that the legitimacy of the confinement of a individual punished by the
Assembly, the High Court is permitted to divert Appeal of habeas corpus. The court further
held that the legitimacy of the sentence of imprisonment enforced by Assembly on Keshav
Singh, the court had passed order to release him. Justice Sarkar writing in his rebellious
opinion, stated that in case, where interference was certainly avoidable and not justifiable.
The instruction of the High Court was to frustrate the right of legal action of the Assembly.

In case of Keshavanand Bharathi v. State of Kerala3, the thirteen judge bench of the S.C.I.
absolute that the Parliament has the widespread mechanism to proceeds absent the
indispensable privileges, if necessary, by amending the Article three hundred sixty-eight of
the Indian Constitution. Out of thirteen judges, six learned judges supported the legitimacy of

1
(1965) A.I.R. 1965 SC 845
2
(1951), A.I.R. 1951 SC 458
3
(1973)
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29th Modification of the Constitution, they did not subsidize to the elementary structure
principle. The six other knowledgeable judges supported 29th Modification of the
Constitution, theme to passing the rudimentary structure. The thirteenth learned judge, Justice
Khanna supported the 29th Modification decided with six leaned judges that was not
possibilities to the guideline of elementary structure.

Justice Khanna appropriated the dissimilar opinion and detained that Parliament has complete
control to modify the Constitution, but Parliament essential authority into which the
elementary construction of the Constitution. Under constraint of the Parliament influence, the
judicial assessment derives under the elementary construction of the Indian Constitution. It
has conceded the rule as per the opinion of the single judge of Justice Khanna.

In the case of Sankari Prasad4, it was held by six judge bench, five judges not agreed to
amending the essential rights under the Indian Constitution. However, in case of
Keshavanand Bharti (1973), six judges out of seven judges held that Parliament modifying
influence has and at all portion of the Constitution can be amended and over ruled the
Golaknath case. The Supreme Court held that the essential rights cannot be modified in such
a method, which will touch the elementary construction of the Constitution.

The most recent improvement in I. R. Coelho v. State of Tamil Nadu5, was seen from
Keshvanand Bharti 6case in which the cases like Chandra Kumar v. Union of India and
others7, Waman Rao and others v. Union of India and others 8, Minerva Mills Ltd. and others
v. Union of India9, Indira Nehru Gandhi v. Raj Narnia 10, where judicial review was
considered as essential and integral Part of the Constitution of India.

In exercise of jurisdiction of review, the gradual empowerment of Indian judiciary has caused
in jurisdictive intervention, by the privilege powers of the Indian President and the State’s
Governor, to endowment mercy and abandon or to decrease judgement in criminal cases. It
was said in the case of Swaran Singh v. State of U.P11, and Satpal v. State of Haryana12. The

4
(1951), A.I.R. 1951 SC 458
5
(2007)
6
(1973)
7
(1997)
8
(1981)
9
(1980)
10
(1975)
11
(1988), 8 S.C.C.16
12
(2000),5 S.C.C.170
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Indian Supreme Court has expanded the views of life imprisonment through judicial review.
In Swami Shradhanand v. State of Karnataka13 case in the matter of sentencing, the
constitutional philosophy and statutory provision, the court has innovated the interpretation of
the life sentence till death. The area of judicial review where it was not worked out to be
practicable and did not generate legislation, but generates pure and simple rules of the
legislation. This development of judicial review was felt appropriate and opened to less
criticism.

In the case of Badrinath v. Government of Tamil Nadu and others (2000), there was fit case
for applying the doctrine of Wednesbury, in which the Indian Supreme Court did not go into
the interrogation of accuracy. That valuation completed by the Departmental Selection
Committee. This is the intension of the tribunal or the court that cannot interfere in respect of
fitness for promotion.

It was held in case of Mitthu v. State of Punjab (1983), that the S.C.I. has struck down
Section 303 of Indian Penal Code, 1860. This section had made death sentence mandatory. In
case Article twenty-one of the Indian Constitution was illustrated by the S.C.I. complete its
frequent pronouncement.

The S.C.I., earlier had expounded same scope under Article twenty-one of the Constitution in
Manaka Gandhi case and Bachan Singh case. The judiciary specified it is now too late for
the day of scrap,that it is to the lawmakers to make available the sentence and the duty of the
court is to enforce it. However, it is for the lawmakers to recommended the technique and
requirement of judiciary to fallow it.

Justice Krishna Iyer in case of G. Krishna Goud v. State of Andhra Pradesh (1976),
expressed his frustration. He stated that as a citizen we can rewrite the law, but as the judge
we never rephrase the legislation, although our opinions are mandatory crucial alterations of
the law. The judgement of death, which has been granted by the judiciary, the frontier of
court has been crossed on judicial matter.

In I.R. Coelho v. State of Tamil Nadu (2007), case the nine judge bench considered judicial
review as a basic structure as given in common law tradition. The Supreme Court had
summarized the ambit and scope of judicial review in the elementary structure philosophy, as
safety of the important rights, through conjoint law. The important constructions of the

13
(2008),13 S.C.C. 767
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conjoint law are the constitutionalism. It was too whispered that the judicial assessment is the
foremost structure of the Constitution and it is very indispensable component under the rule
of law.

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 BIBLIOGRPHY

Primary Source:

 Indian Constitional Law, 7th Edition of M. P. Jain

Secondary Source:

 file:///D:/pdfs%20on%20judicial%20review/JUDICIAL%20REVIEW

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