Doctrine of Judicial Review EDITED

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Doctrine of judicial review, book; M.P.

Jain, 8th Edn

 Judicial review has two prime functions (1) legitimizing governmental action; (2) to
protect the constitution against any undue encroachments by the government. These two
functions re interrelated.1
 If a law is inconsistent with the constitution were not to be declared void, then the written
constitution loses all its value n significance. When a law is in opposition to the
constitution, it is the duty of the courts to follow the constitution and not the law.2
 Some have asserted that judicial review is undemocratic as the judges who declare
statutes unconstitutional are neither elected by, nor are responsible to, the people.3
But there are many scholars who do not agree with this view. They argue that a
democracy need not have all the officials elected, and that judicial review is democratic
as it promotes democracy. By safeguarding the rights of the people and cabining
government organs within the confines of the constitution.4 In a democracy the majority
may not always be right and there always lurks the danger of oppression of minority by
the majority. Judicial review can keep such a tendency in check by keeping the majority
within the bounds of the constitution.
The legislature and executive are politically partisan bodies and are committed to certain
policies and programmes which they wish to implement. Therefore, they cannot be
trusted with the final power of constitutional interpretation. They would often seek to
bend the constitution to their own views and accommodate their own policies. The
constitution would thus become a plaything of the politicians.5
 Judicial review serves as a necessary check on the possible excesses by the legislature
and the executive. Judicial review helps in channelizing the acute and extreme
controversies of the day into legal channels.6

1
M.P. Jain, 8th Edn. Page 1665, para4.
2
M.P. Jain, 8th Edn. Page 1667, para 1.
3
Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv LR 129(1889); Schwartz,
A Basic history of the US Supreme court, 87 (1970.).
4
Rostow, The Democratic Character of Judicial Review in a Democracy (1960); Atiyah Judges and Policy.
Leonard W Levy, judicial review n supreme court (1967).
5
M.P. Jain, 8th Edn Page 1668, para 6.
6
M.P. Jain, 8th Edn Page 1669, para 2.
 There is another more abiding consideration in favour of judicial review. Modern
political thought draws a distinction between ‘constitution’ and ‘constitutionalism’.
Constitutionalism denotes a constitution not only of powers but also restraints as well. A
constitution envisages checks and balances and putting the powers of the legislature and
the executive under some restraints and not making them uncontrolled and arbitrary.
“Constitutionalism has one essential quality; it is a legal limitation on government; it is
the antithesis of arbitrary rule; its opposite is despotic government, the government of
will instead of law.”7 Judicial review is the cornerstone of constitutionalism.
 In a parliamentary system, the majority automatically supports the government in office.
This results in the powers of legislature gravitating towards the executive. In such a
context, on order to maintain personal rights and a balanced administration, some
external restraint on government becomes an absolute necessity. Therefore even if it
slows down somewhat the implementation of socio-economic programmes, that is the
price one has to pay for promoting constitutionalism, rule of law and democratic behavior
in the country.8
 The power of judicial review, vested in the Supreme Court and the high courts under
articles 32 and 226 of the constitution, is an integral part and essential feature of the
constitution, constituting part of its basic structure.9
 Justifying judicial review , Ramaswami J. has observe in SS Bola v, BD Sharma10
The founding fathers very wisely, therefore incorporated in the constitution itself the
provisions of judicial review so as to maintain the balance of federalism, to protect the
fundamental rights and fundamental freedoms guaranteed to the citizens and to afford a
useful weapon for availability, availment and enjoyment of equality, liberty and
fundamental freedoms and to help to create a healthy nationalism. The function of
judicial review is a part of constitutional interpretation itself. It adjusts the constitution to
meet new conditions and needs of the time.

7
Mclllwain Constitutionalism, Ancient & Modern, 21-22, 146 (1958).
8
Scarman, The New Dimensions of English Law; Lord Hailsham’s Richard Dimbleby’ Lecture in the Times, 15 th
October, 1976. He has characterized the present-day government on Britain as “elective dictatorship”.
9
State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, AIR 2010 SC 1476(1490):
2010 AIR SCW 1829: (2010) 3 SCC 571.
10
S.S. Bhola v. B.D. Sharma, AIR 1997 SC 3127, 3170..
 In a number of cases, the Supreme Court has emphasized upon the importance of judicial
review in India. Khanna J. in Keshvananda11
As long as some fundamental rights exists and re part of the constitution, the power of
judicial review has also to be exercised with a view to see that the guarantees afforded by
these rights are not contravened…Judicial review has thus become an integral part of our
constitutional system.
 In Minerva mills12, Chandrachud CJ speaking on behalf of the majority, observed:
It is the function of the judges, may their duty, to pronounce upon the validity of laws. If
courts are totally deprived of that power, the Fundamental Rights conferred on people
will become mere adornment because rights without remedies are writ in water. A
controlled constitution will then become uncontrolled.
In his minority judgment in Minerva,13 Bhagwati J. observed:
It is for the judiciary to uphold the constitutional values and to enforce the constitutional
limitations. That is the essence of the rule of law, which inter alia requires that “the
exercise of powers by the government whether it be the legislature or the executive or
any other authority, be conditioned by the constitution and the law.” The power of
judicial review is an integral part of our constitutional system…the power of judicial
review …is unquestionably…part of the basic structure of the constitution.
 Thus, the jurisdiction conferred on the Supreme Court under article 32 and on the High
Courts under article 226/227 of the Constitution has been held to be a part of the
inviolable basic structure of the constitution which cannot be ousted even by a
Constitutional Amendment.14
 Efforts have been made in India to curtail the scope of judicial review in some
constitutional areas. Cases like Golak Nath, Bank Nationalisation, or Keshavananda
Bharti have raised passionate controversies in India. 15

11
Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225.
12
Minerva Mills Vs. Union of India,1980 AIR 1789, 1981 SCR (1) 206.
13
Minerva Mills Vs. Union of India,1980 AIR 1789, 1981 SCR (1) 206.
14
M.P. Jain, 8th Edn., Page 1675.
15
M.P. Jain, 8th Edn., Page 1676.

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