Meaning and Origin of Judicial Review
Judicial review is the power of the judiciary to examine the constitutionality of laws and executive orders of
both the Central and State governments. If a law or action is found to be in violation of the Constitution (ultra
vires), it can be declared illegal, unconstitutional, and invalid by the judiciary.
● Origin: The doctrine originated and was developed in the USA. It was first propounded in the landmark
case of Marbury v. Madison (1803) by Chief Justice John Marshall.
● Indian Context: In India, the Constitution itself confers the power of judicial review on the Supreme
Court and the High Courts. The Supreme Court has declared judicial review to be a basic feature of
the Constitution, meaning it cannot be curtailed or excluded even by a constitutional amendment.
Importance of Judicial Review
Judicial review is essential for the following reasons:
● To uphold the principle of the supremacy of the Constitution.
● To maintain federal equilibrium by balancing power between the Centre and the States.
● To protect the Fundamental Rights of citizens.
The Supreme Court has emphasized its significance in numerous cases, describing itself as the
"ultimate interpreter of the Constitution," a "sentinel on the qui vive" for Fundamental Rights, and
highlighting that "rights without remedies are as writ in water."
Classification of Judicial Review
Justice Syed Shah Mohamed Quadri classified judicial review into three categories:
1. Judicial review of constitutional amendments.
2. Judicial review of legislation by Parliament, State Legislatures, and subordinate legislation.
3. Judicial review of administrative actions of the Union and State authorities.
Constitutional Provisions for Judicial Review
Though the term "Judicial Review" is not explicitly used in the Constitution, several Articles grant this power to
the Supreme Court and High Courts:
● Article 13: Declares that any law inconsistent with or in derogation of Fundamental Rights shall be null
and void.
● Article 32: Guarantees the right to move the Supreme Court to enforce Fundamental Rights.
● Article 131: Provides for the Supreme Court's original jurisdiction in Centre-State and inter-state
disputes.
● Article 132: Gives the Supreme Court appellate jurisdiction in constitutional cases.
● Article 133: Gives the Supreme Court appellate jurisdiction in civil cases.
● Article 134: Gives the Supreme Court appellate jurisdiction in criminal cases.
● Article 134-A: Deals with the certificate for appeal to the Supreme Court from High Courts.
● Article 135: Empowers the Supreme Court to exercise the jurisdiction of the pre-constitution Federal
Court.
● Article 136: Authorizes the Supreme Court to grant special leave to appeal from any court or tribunal.
● Article 143: Authorizes the President to seek the opinion of the Supreme Court on questions of law or
fact.
● Article 226: Empowers High Courts to issue writs for the enforcement of Fundamental Rights and for
any other purpose.
● Article 227: Vests in High Courts the power of superintendence over all courts and tribunals within
their jurisdiction.
● Article 245: Relates to the territorial extent of laws made by Parliament and State Legislatures.
● Article 246: Deals with the subject matter of laws made by Parliament and State Legislatures (Union,
State, and Concurrent Lists).
● Articles 251 & 254: In case of a conflict between Central and State law, the Central law will prevail.
● Article 372: Deals with the continuance of pre-constitution laws.
Scope of Judicial Review
The constitutionality of a legislative or executive action can be challenged in the Supreme Court or High Courts
on three grounds:
1. It infringes upon Fundamental Rights (Part III).
2. It is outside the competence of the authority that framed it.
3. It is repugnant to other constitutional provisions.
Comparison with the USA
The scope of judicial review in India is narrower than in the USA.
● The American Constitution follows the "due process of law," which allows courts to examine laws on
both substantive (unlawful) and procedural (unreasonable) grounds. This gives the US Supreme Court
very wide powers.
● The Indian Constitution contains the phrase "procedure established by law," which means the
Supreme Court primarily examines if a law is within the powers of the authority that made it, and not
necessarily its reasonableness or policy implications.
Synthesis of Systems
India has synthesized the American principle of judicial supremacy and the British principle of
parliamentary supremacy. While Parliament is not fully sovereign due to limitations like the written
Constitution, federalism, and Fundamental Rights, the judiciary's power is also not as absolute as in the US.
Judicial Review of the Ninth Schedule
The Ninth Schedule, along with Article 31B, was introduced by the 1st Constitutional Amendment Act, 1951.
Its purpose was to protect laws included in it from being challenged on the grounds of violating Fundamental
Rights.
However, the Supreme Court has limited this immunity through several landmark judgments:
● Kesavananda Bharati case (1973): The Court ruled that laws included in the Ninth Schedule could
still be challenged if they violated the "basic structure" of the Constitution.
● Waman Rao case (1980): The Court clarified that the "basic structure" doctrine would apply to all laws
added to the Ninth Schedule after April 24, 1973 (the date of the Kesavananda Bharati judgment).
● I.R. Coelho case (2007): The Supreme Court reaffirmed its previous stance, holding that there can be
no blanket immunity from judicial review.
○ Judicial review is a basic feature and cannot be taken away by placing a law in the Ninth
Schedule.
○ Laws placed in the Ninth Schedule after April 24, 1973, are open to challenge if they violate
Fundamental Rights under Articles 14, 15, 19, and 21, or the basic structure.
○ The validity of such a law will be determined by its effect and impact on Fundamental Rights
(the "rights test"). If a law damages the basic structure, it will be invalidated.
○ However, if the validity of a Ninth Schedule law has already been upheld by the Court, it
cannot be challenged again on these new principles. Actions already taken under such laws
also cannot be challenged.
Number of Acts and Regulations Included in the Ninth Schedule
I. Included Before April 24, 1973
● First Amendment (1951): 13 acts (Serial Numbers 1 to 13)
● Fourth Amendment (1955): 7 acts (Serial Numbers 14 to 20)
● Seventeenth Amendment (1964): 44 acts (Serial Numbers 21 to 64)
● Twenty-Ninth Amendment (1972): 2 acts (Serial Numbers 65 to 66)
II. Included After April 24, 1973
● Thirty-Fourth Amendment (1974): 20 acts (Serial Numbers 67 to 86)
● Thirty-Ninth Amendment (1975): 38 acts (Serial Numbers 87 to 124)
● Fortieth Amendment (1976): 64 acts (Serial Numbers 125 to 188)
● Forty-Seventh Amendment (1984): 14 acts (Serial Numbers 189 to 202)
● Sixty-Sixth Amendment (1990): 55 acts (Serial Numbers 203 to 257)
● Seventy-Sixth Amendment (1994): 1 act (Serial Number 257A)
● Seventy-Eighth Amendment (1995): 27 acts (Serial Numbers 258 to 284)
Note: Entries 87, 92, and 130 were omitted by the Forty-Fourth Amendment in 1978.