Judicial Review means Judicial Scrutiny

The power of judiciary to review the Act of the

legislature or the Executive in order to determine
its constitutional propriety
If an Act violates the provisions of the
Constitution, it can be declared or held as
unconstitutional, illegal or ultra vires
 Thus Judiciary Guardian of the Constitution

Courts does not scrutinize the constitutionality

of every statute law
Only when aggrieved party brings it to the court
 Judicial Review in America
The concept of Judicial Review originated in
United States of America

In Marbury v. Madison (1803) the U.S.A

Supreme Court announced for the first time
the principle that a court may declare an act
of Congress void if it is inconsistent with the
Constitution.
 The Fifth Amendment in 1789 says to the
federal government that no one shall be
"deprived of life, liberty or property
without due process of law." The Fourteenth
Amendment, ratified in 1868, uses the same
eleven words, called the Due Process Clause,
to describe a legal obligation of all states.
Due means what is just and proper and law
here means natural law
 Based on this he said When the court is
called upon to give effect to a statute passed
by the congress, which is clearly in conflict
with the supreme law of the constitution, it
must give preference to the latter and hold the
former void and of no effect
 Judicial Review in India
India being a quasi-federal state, the
constitution is the supreme law of the land.

Powers distributed between states and union

government
 The Supreme Court is the guardian of the
constitution

Based on Art 21 No person shall be

deprived of his/her life or personal liberty
except according to the procedure established
by law
 Two aspects
Due procedure should be followed in the
enactment of the law/ statute

Conform with the provisions of the constitution

 Justice B.K. Mukherjee
A Statute or law to be valid must, in all cases,
be in conformity with the constitutional
requirements and it is for the judiciary to
decide whether any enactment is
unconstitutional or not
 Since independence the supreme court in
various cases enjoyed the power of Judicial
Review and has openly declared an Act as
illegal or Void

Some of the important cases are.

 A.K.Gopalan V. State of Madras (1950)
The first major constitutional issue decided by the Supreme Court
came out of the preventive detention of communist leader A K
Gopalan, in whose honour the headquarters of CPM is named.
The issue was whether somebody's detention could be justified
merely on the ground that it had been carried out "according to
the procedure established by law," as stipulated in Article 21 of the
Constitution. Or, would that procedure be valid only if it complied
with principles of natural justice such as giving a hearing to the
affected person?
 The case was questioning the validity
Preventive Detention Act, 1950

In the A K Gopalan case of 1950, the Supreme

Court, taking a narrow view of Article 21,
refused to consider if the procedure
established by law suffered from any
deficiencies.
 The apex court interpreted that the words
"procedure established by law" in article 21
are to be given a wide and fluid meaning of
the expression "due process of law" as given
under the U.S. constitution but it refers to only
state made statues laws. if any statutory law
prescribed procedure for depriving a person of
his rights or personal liberty it should meet
the requirements of article 21
 Article 21 of the Constitution of India, 1950
provides that, No person shall be deprived of
his life or personal liberty except according to
procedure established by law.

Article 22 - Protection against arrest and

detention in certain cases
 Shankari Prasad V. Union of India (1951)
and Sajjan Singh V. State of Rajasthan
(1965)
The question of amendability of fundamental
rights

The fundamental rights of the individual under

constitution though sacrosanct and constituting
limitations on the power of the executive and
legislature are not immutable and absolute in
character but subject to parliaments power to
amend the constitution under article 368
 Art 13 - Laws inconsistent with or in
derogation of the fundamental rights

Art 368 - Power of Parliament to amend the

Constitution and procedure therefore
 The court upheld the power of the Indian
parliament of amending any part of the
constitution including the fundamental rights
Golaknath V. State of Punjab (1967)
The fundamental rights are natural rights or
moral rights which every human being ought
to possess

They are primordial rights necessary for the

development of human personality
 This gives the fundamental rights a
transcendental position and takes them
beyond the reach of parliament
Parliament will have no power from the date
of this decision (27th February, 1967) to amend
any of the provisions of part III of the
constitution so as to take away or abridge the
fundamental rights
Kesavananda Bharati V. State of Kerala (1973)

The Supreme Court recognized basic structure

concept for the first time in the historic
Kesavananda Bharati case in 1973. Ever since
the Supreme Court has been the interpreter of
the Constitution and the arbiter of all
amendments made by parliament. The court
by majority overruled the Golak Nath case
which denied parliament the power to amend
fundamental rights of the citizens.
 It is a landmark of the Supreme Court of India,
and is the basis in Indian law for the exercise
by the Indian judiciary of the power to
judicially review, and strike down,
amendments to the Constitution of India
passed by the Indian Parliament which conflict
with or seek to alter the Constitutions basic
structure.
Basic Features/Structure of the Constitution

Supremacy of the Constitution

Republican and democratic form of government
Secular character of the Constitution
Separation of powers between the legislature,
executive and the judiciary
Federal character of the Constitution
Unity and integrity of the nation
Essential features of the individual freedoms
secured to the citizens
 Indira Gandhi v. Raj Narain, (1975)

Basic Structure concept reaffirmed in this

case. The Supreme Court applied the theory of
basic structure and struck down Cl(4) of article
329-A,which was inserted by the 39th
Amendment in 1975 on the ground that it was
beyond the amending power of the
parliament as it destroyed the basic feature of
the constitution.
Justice Y.V. Chandrachud listed four basic features
which he considered unamendable:
sovereign democratic republic status
equality of status and opportunity of an individual
secularism and freedom of conscience and
religion
'government of laws and not of men' i.e. the rule
of law
 Minerva Mill v. Union of India (1980)
After the decision of the Supreme Court in
Keshvanand Bharti and Indira Nehru Gandhi case
the constitution (42nd Amendment) Act, 1976 was
passed which added two new clauses, namely,
clause (4) and (5) to Art.368 of the Constitution. It
declared that there shall be no limitation whatever
on the constituent power of parliament to amend
by way of addition, variation or repeal of the
provisions of the Constitution under this Article.
 Chief Justice Y.V. Chandrachud, delivering the majority
judgement (4:1), upheld both contentions.The majority
view upheld the power of judicial review of constitutional
amendments. They maintained that clauses (4) and (5)
of Article 368 conferred unlimited power on Parliament to
amend the Constitution. They said that this deprived
courts of the ability to question the amendment even if it
damaged or destroyed the Constitution's basic structure.
The judges, who concurred with Chandrachud, C.J. ruled
that a limited amending power itself is a basic feature of
the Constitution.
 Limitations of Judicial Review
Power to examine the procedure established
by Law and not due process of law
Cannot pronounce a judgment on the legality
of a declaration of Emergency by the president
The aid and advise by cabinet to president no
subject to judicial review
The speaker decision not under the purview of
the court
Thank You