JUDICIAL REVIEW

DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow
Faculty of Law
PROJECT ON

Doctrine of Judicial Review

For
Course on ‘Indian Constitution’

SUBMITTED TO SUBMITTED BY

Dr. Gulab Rai Saurabh Kumar Yadav

Assistant professor B.COM LL.B (HONS)

DSMNRU, ROLL.NO.36

LUCKNOW DSMNRU, LUCKNOW

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Ass. Prof. Dr Gulab Rai, who

gave me the golden opportunity to do this wonderful topic Doctrine of judicial review,

which also helped me in doing a lot of Research and I came to know about so many new

things I am really thankful to them.

Saurabh Kumar Yadav

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TABLE OF CONTENTS

1. INTRODUCTION …………………………………………………………..2

2. ORIGIN………………………………………………………………..……3-5

3. MEANING OF JUDICIAL REVIEW…………………………………….6-8

4. OBJECTIVE OF JUDICIAL REVIEW…………………………………9--10

5. PROVISION OF JUDICIAL REVIEW…………………………………11-12.

6. COMPARISON OF JUDICIAL REVIEW IN INDIA & U.S.A………….13-14

7. JUDICIARY AS A PROTECTOR OF FUNDAMENTAL RIGHTS…….15-16

8. CONCLUSION……………………………………………………………..…..17

9. BIBLIOGRAPHY……………………………………………………….…….18

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1. INTRODUCTION:

People may loose faith in the executive or may be from the legislature, but if they loose faith
from judiciary then it is dangerous for our country1. The judiciary play a very important role
as a protector of the fundamental right. It is the guardian of the Indian constitution. Judiciary
is the arm of social revolution upholding the equality that Indians had longed for. The
judiciary by using this power keeps the legislative and the executive organs within the
purview of the constitution. Judicial review is an example of the functioning of separation of
powers in a modern governmental system (where the judiciary is one of three branches of
government). The supreme court, added that the growth and jurisprudence altogether over the
place, where fundamental rights, under the Constitution has completed strong that the
controls are not restricted, nor has thin rights2. This principle is interpreted differently in
different jurisdictions, which also have differing views on the different hierarchy of
governmental norms. As a result, the procedure and scope of judicial review differs from
country to country and state to state. judicial Review refers to the power of judiciary to
interpret the constitution and to declare any such law or order of the legislature and executive
void, if it finds them in conflict the constitution of India3. Judicial review is the power of
judiciary by which the court reviews the law and rules of the legislature and executive in case
that comes before them, and to determine the constitutional validity of any laws. One of the
most important features of the judiciary is the power of judicial review. It was also declared
that if any such law is found to be in violation of the constitution, then such a law would be
declared by the court as ultravires of the constitution. Judicial review was formulated by chief
justice Marshall of American supreme court who laid down following objectives, the primary
function of judicial review is to uphold the principle of supremacy of the constitution, to
maintain the federal equilibrium, to protect the fundamental rights of the citizens, and to
maintain the supremacy of constitution4. People may loose faith in the executive or may be
from the legislature, but if they loose faith from judiciary then it is dangerous for our

1
A.K Gopalan v State of Madras AIR 1973 SC 234
2
Marbury v Madison U.S (1 Cranch) 137 (1803)
3
Article 13(2) of the Indian Constitution.
4
U.S Report: Marbury v Madison U.S. (1 Cranch) 137 (1803)

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DOCTRINE OF JUDICIAL REVIEW

2. Meaning & Origin of Judicial Review:

Judicial review is a process by which executive or legislative action are subject to review by
the judiciary, it is the power of higher courts to interpret the constitution and to declare any
such law void if it conflicts with the constitution of India. The doctrine of judicial review is
one of the invaluable contributions of the U.S.A. to the political theory. Its origin has been
the result of a judicial decision and its continuance has been possible due to some
conventions. The concept of judicial review was developed by Chief Justice Marshall of the
American Supreme Court in the famous Marbury v. Madison5 case (1803). In this case Chief
Justice Marshall laid down that the judiciary has the power to examine the laws made by the
legislature. It was also declared that if any such law is found to be in violation of the
constitution, then such a law would be declared by the court as ultravires of the constitution.
Judicial review was formulated by chief justice Marshall of American supreme court who
laid down following objectives, the primary function of judicial review is to uphold the
principle of supremacy of the constitution, to maintain the federal equilibrium, to protect the
fundamental rights of the citizens, and to maintain the supremacy of constitution. Judicial
review can be exercised on many grounds which are jurisdictional error, irrationality,
procedure impropriety6, proportionality, legitimate expectation7.

judicial Review refers to the power of judiciary to interpret the constitution and to declare
any such law or order of the legislature and executive void, if it finds them in conflict the
constitution of India. Judicial review is the power of judiciary by which the court reviews the
law and rules of the legislature and executive in case that comes before them, and to
determine the constitutional validity of any laws. One of the most important features of the
judiciary is the power of judicial review. Judicial review is the power of the Supreme Court
and the High Courts to examine the constitutionality of the Acts of the Parliament and the
state legislatures and executive orders both of the centre and state governments8.

5
U.S. (1 Cranch) 137 (1803)
6
Council of Civil Service V Minister of civil service (1985) AC 410
7
Associated Provincial v Wednesbury 1925 AC 578
8
Maneka Gandhi v Union of India AIR 1978 SC 234

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3. Objectives Of Judicial Review

Judicial review is important because laws passed need to be checked to make sure they are
constitutional. Judicial review is important because it allows the higher courts to review the
outcomes of the lower courts. It helps to check on the other branches of government. The
main importance of judicial review is to protect individual rights, to balance government
powers and to create and maintain equality to every person. The system of civil liberties that
we know of today would be very different without judicial review. Judicial Review as
formulated by Chief Justice Marshall of the American Supreme Court had laid down a
number of objectives:

1. To uphold the principle of the supremacy of the Constitution.

2. To maintain federal equilibrium i.e. balance between the centre and the states.

3. To protect the fundamental rights of the citizens9.

One of the most important features of the judiciary is the power of judicial review. Judicial
review is the power of the Supreme Court and the High Courts to examine the
constitutionality of the Acts of the Parliament and the state legislatures and executive orders
both of the centre and state governments10. If it is found that any of its provisions are in
violation of the provisions of the constitution, they can be declared unconstitutional or ultra-
vires of the constitution and a law declared by the Supreme Court as unconstitutional cannot
be enforced by the government. The court should prima facie lean in favour of
constitutionality and should support the legislation if it is possible to do so on any reasonable
ground. The court enunciated the doctrine of severability which implies that only those
portions of law are declared as void which are inconsistent with the provisions of the
constitution and the rest of law is permitted to operate. The court in India exercise the power
of judicial review with great restraint and attached more importance to the express words of
the constitution rather than the spirit of the constitution11.

The debate of the constituent assembly reveals that judicial review was desired to an essential
condition for the successful implementation and enforcement of the fundamental rights.In the

9
Marbury v Madison U.S. (1 Cranch) 137 (1803)
10
S.P Sampath Kumar v Union Of India AIR 1987 SC 386
11
Chiranjit Lal v union of India AIR 1993 SC 56

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report of the abhor committee it was recommended by the supreme court has a jurisdiction to
decide upon the constitutional validity of acts and laws12

Provision of Judicial Review in Indian Constitution

In post-Independence India the inclusion of explicit provisions for judicial review were
necessary in order to give effect to individual and group rights guaranteed in the text of the
constitution. Dr. Ambedkar13 who chaired the drafting committee of our constituent assembly
had described the provisions related to the same as heart of Indian constitution. Article 13 (2)
of the Indian constitution prescribes that the union or states shall not make any law that takes
away or abridges any of the fundamental rights and any law made in contravention of the
aforementioned mandate shall, to the extent of contravention shall become void. The system
of judicial review is also applicable in India. Although the term Judicial Review has not been
mentioned in the Constitution, the provisions of various Articles of the Constitution of India
have conferred the power of judicial review on the Supreme Court. Accordingly, the
constitutional validity of a legislative enactment or an executive order may be challenged in
the Supreme Court on the following grounds –

1. Violation of fundamental rights.

2. Outside the competence of the authority which has framed it.

3. It is repugnant to the Constitutional provisions.

The foundation of the Indian Supreme Court’s Review-power was laid firmly and well in the
case of A.K. Gopalan v. State of Madras14. This case not only elucidated the principle of
Judicial Review and the basis on which it would rest in future, but at the same time evolved a
set off guidelines which would eventually set the pattern for the fundamentals of judicial
approach to the Indian Constitution. Form ‘Gopalan’ to ‘Golaknath’ is, indeed, a long march,
not only in respect of the nature and scope of Judicial Review itself, but in regard to the
impact and consequences of such Review on the attainment of social objectives, too. These
two cases represent two distinct lines of judicial thinking, two distinct tendencies, and, also
two separate sets of social philosophy. One represents a halting, over-cautious and tradition-
bound attitude of the judiciary in restricting its own freedom of action. The Supreme Court
considerably widened the scope of judicial review in India through its judgement in Maneka

12
Abhor committee report 1989
13
Chairman of drafting committee of Indian constitution 1951
14
AIR 1971 SC 78

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Gandhi15’s case. In this case, the Supreme Court accepted the concept of natural justice as
one essential component of law thereby importing the American concept of ‘due process of
law’ into our Constitution. In the case of Charanjit Lal v. The Union of India 16, Justice
Mukherjee observed: “The court should prima facie lean in favour of constitutionality and
should support the legislation if it is possible to do so on any reasonable ground.” In
pursuance of this attitude the Supreme Court of India has established the provision of judicial
review.

As a result, Judicial Review, which was recognized as the basic and indispensable
precondition for safeguarding the rights and liberties of the individuals, was sought to be
tempered by the urge for building up a new society based on the concept of welfare and
social righteousness. The consequence was a drastic curtailment of the power of judicial
Review of the Supreme Court of India. The overriding need for ‘security of the State’
consequent on the partition of India and its after-math, and growing fissiparous and
subversive tendencies, merely provided further impetus to the process and made it a fait
accompli. What happened as a result was that the much debated ‘Due Process Clause’, which
was previously inserted in the original Draft Constitution, became the “first casualty”, and
was eliminated from the purview of the Rights to Personal Liberty. Under Art. 21 of the new
Constitution of India, it was replaced by ‘except according to procedure established by law’,
and in Art. 31 (1) it was substituted by ‘save by authority of law 17.’ Simultaneously with this
‘new awakening’, a cluster of provisions was incorporated into the constitutional document
so as to restrict the rights envisaged in Arts. 19, 21, and 31, and reduce the Supreme Court’s
power of Judicial Review to one of ‘formal’ review. Last Judicial Review stood in the way of
social and economic progress, the door was kept wide open, through a comparatively flexible
amending procedure, to impose the ultimate will of the popular representatives in the matter
of removing constitutional limitations. Constitution has been working for about 60 years
since it is adopted, but it is indeed very difficult to make a correct appraisal of the course and
development of Judicial Review, and its specific directions and tendencies. The foundation
of the Indian Supreme Court’s Review-power was laid firmly and well in the case of A.K.
Gopalan v. State of Madras18. This case not only elucidated the principle of Judicial Review
and the basis on which it would rest in future, but at the same time evolved a set off

15
Maneka Gandhi v Union of India AIR 1978 SC 1628
16
Chiranjit Lal v. The Union of India AIR 1951 SC 41
17
Minerva Mills v Union of India AIR 1980 SC 534
18
AIR 1971 SC 78

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guidelines which would eventually set the pattern for the fundamentals of judicial approach
to the Indian Constitution. Form ‘Gopalan’ to ‘Golaknath’ is, indeed, a long march, not only
in respect of the nature and scope of Judicial Review itself ,but in regard to the impact and
consequences of such Review on the attainment of social objectives, too. These two cases
represent two distinct lines of judicial thinking, two distinct tendencies, and, also two
separate sets of social philosophy. One represents a halting, over-cautious and tradition-
bound attitude of the judiciary in restricting its own freedom of action.

The Supreme Court of India has used the power of judicial review in various cases. We may
refer to the Golaknath case19 , Bank Nationalisation case20, the Privy Purses Abolition case21,
the Keshavananada Bharti case22, the Minerva Mills case23 and so on. However while
exercising the power of judicial review, the Supreme Court has never adopted the American
practise as it is. One of the most significant cases decided by the Supreme Court was
Golaknath case of 1967in which the Supreme Court held that the Parliament has no right to
abridge or abrogate the Fundamental Rights granted by the Constitution through an
amendment of the Constitution. Thus it made the Fundamental Rights transcendental and
superior to the constituent power of the Parliament through its power of judicial review. The
Supreme Court continued this attitude in the Bank Nationalisation and Privy Purses cases and
challenged the right of the Parliament to curtail the fundamental rights by the Parliament.
This attitude of the Supreme Court obliged the Congress Government to effect 24th, 25th and
26th amendments in the Constitution. It also made a bid to curtail the right of the Supreme
Court to declare a law affecting Fundamental Rights under article 14, 19 and 31 as void of the
law was passed to give effect to the Directive Principles under Article 39 (b) or (c). These
amendments were challenged in the keshawaShawanda Bharati case. During the emergency
a bid was made to restrict the scope of judicial review through the Forty Second Amendment.
The power to determine the constitutional validity of the central laws was exclusively vested
in the Supreme Court and the High Courts were deprived of their right in this regard. The
Janata Government on assumption of power made a bid to restore the powers which were
taken away from the judiciary during the emergency.by the Forty-Third Amendment passed
in December 1977 it restored to the Supreme Court pre-emergency position with regard to
power of judicial review over the laws passed by the Parliament as well as the State
19
I.C Golaknath V State of Punjab AIR 1967 SC 1643
20
R. C. Cooper v Union of India AIR 1970 SC 564
21
Minerva mills v Union of India AIR 1980 1789
22
Keshavananada Bharati v State Of Kerala AIR 1973 SC 1461
23
Privy purse v union of India AIR 1971 SC 271

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Legislatures. A recent years the judiciary has further widened his field of operation by
declaring ‘judicial review’ as a basic feature of the Constitution.

4.Power of judicial Review in the Indian Constitution-:

Article 13 of the Indian constitution deals with the power of judicial review. Article 13(1)
declares that all laws in force in the territory of India immediately before the commencement
of the constitution shall be void to the extent to which they are inconsistent with the
provisions of the part third of the Indian 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 Centre and
States. The Supreme court 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 Supreme court . 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 come24. This
power has been conferred on supreme court and high court under article 32 and 226
respectively. As a result of the Supreme Court judgement of March 1994 in the case of S.R
Bommai and others v. The Union of India25, also known as Assembly dissolution case, the
scope of judicial review was further widened. Which can declare a law unconstitutional if it
is inconsistent with any of the provisions of part third of Indian Constitution. The main
objective of judicial review is to maintain the supremacy of Indian constitution. Judicial
review is the power of the court to enquire whether executive and legislature works within
the domain of their powers or not and if they repugnant with fundamental rights they are
declared as void26. Judicial review is main power of the judiciary to separate the powers
between executive and judiciary, under article 32 supreme court under article 32 has power to

24
I.C Golaknath v Union of India AIR 1967 SC 32
25
AIR (1994) SCC 1
26
Indira Gandhi v Rajnarain AIR 1972 SC 41

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issue prerogative writs like habeas corpus, mandamus, quo warranto, certiorari, prohibition
and high court under article 226 has power to issue writs, directions, orders in order to
maintain the supremacy of Indian constitution. In 1803, the power of judicial review was
used for the first time by the U.S. Supreme Court to declare an act of Congress
unconstitutional. Acting under the doctrine of Implied Powers, the Supreme Court in its
judgement in Marbury v. Madison case27 (1803), admitted its existence and used it. In this
case, Chief Justice John Marshall explained and justified the exercise of judicial review to
strike down an unconstitutional act of Congress or states. While doing so the Supreme Court
referred to Article VI, Section 2 of the Constitution which reads, “This Constitution and the
laws of the United States which shall be made in pursuance thereof; and all treaties made or
which shall be made under the authority of the United States, shall be the supreme law of the
land, and the judges in every state shall be bound thereby, anything in the constitution or laws
of any state to the contrary notwithstanding.” This article of the constitution was taken to
mean that the judges have the power and duty to uphold the supremacy of the Constitution by
not allowing any federal or state laws to violate its provisions. While giving judgement in this
case, which involved an interpretation of the Judiciary Act28, Chief Justice Marshall
enunciated this doctrine and observed that “a written Constitution is superior to all other acts
of government made under it; and it is the sworn duty of federal judges to follow the
constitution and give effect only to constitutional law and determine which law prevails
where there is conflict. If a Congressional law conflicted with the Constitutional law, the
court was bound to uphold the Constitution as the highest law of land.” “Courts are to respect
the Constitution and the Constitution is superior to any ordinary Act of legislature.” Since
then the Supreme Court has been exercising this this unique power and has declared a
number of legislative powers null and void. After the historic judgement in the Marbury v.
Madison case, the Supreme Court has been regularly using this power. After 1803, it was
used only in 1857 in the Dred Scott case29. Till today nearly 100 Congressional statutes have
been declared unconstitutional by the Supreme Court. The Court has always refused to apply
judicial review to political questions. After the judicial review is conducted the Supreme
Court can give 3 types of decisions. These are as follows:

That the law is unconstitutional. In this case, the law stands struck down and it ceases to
operate form the date on which the Supreme Court declares it invalid. ii. That the law is

27
Marbury v. Madison case U.S 1803
28
American Judiciary act 1874
29
Marbury v Madison U.S. (1 Cranch) 137 (1803)

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constitutional and fair. In this case, the law continues to operate as before without any
change. iii. That any part or some parts of the law are unconstitutional. In this case, only the
part or parts declared unconstitutional cease to operate and the rest of law continues to
operate. If, however, the part or parts declared unconstitutional are so integral to the law that
it cannot operate without them, the whole law becomes invalid. Judicial review is done by a
bench of the Supreme Court and not by a single judge30. The verdict is given by majority.
Sometimes it is a majority of only a single judge. The power of judicial review of supreme
court cannot be curtailed by the act of parliament and constitutional provisions.31

Limitations on the Supreme Court in respect of Judicial Review:

1) The Court does not conduct judicial review over political issues.
2) While declaring a law unconstitutional the Court has to assign reasons and specify the
provisions of the Constitution that it violates.
3) The Supreme Court conducts judicial review only in cases actually brought before it. It
cannot initiate the process of its own.
4) The law declared invalid ceases to operate for the future. The work already done on its
basis continues to be valid.
5) The Court has to demonstrate clearly the unconstitutionality of the law which is sought to
be declared invalid.

Judicial Review in India and USA: Comparison

The scope of judicial review in India is narrower than that of what exists in USA, though the
American Constitution does not explicitly mention the concept of judicial review in any of its
provisions. In USA the judges exercise judicial review in a very aggressive manner. If the
judges think that a particular law and the philosophy of it is not liked by the judges then, also
the judiciary may reject the law. But such a thing never happens in India. The Indian judges
reject a law only on the basis of unconstitutionality. Moreover, it has also been seen that in
USA, if a law is rejected by the Supreme Court then the court will make a new law in its
place. Although law making is not the responsibility of the judiciary, the judiciary makes
laws. Such judge-made laws are very common in USA. But in India if a law is rejected by the

30
Article 137 of the Indian Constitution
31
Centre for PIL v Union of India AIR 2011 SC 1267

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Supreme Court, the Court leaves the matter of making new laws to the legislative. This has
also been described as Judicial Activism by some of the constitutional experts. The
American Constitution provides for ‘due process of law’ against that of ‘procedure
established by law’ which is contained in the Indian Constitution. The difference between the
two is: the ‘due process of law’ gives wide scope to the Supreme Court to grant protection to
the rights of its citizens. It can declare laws violative of these rights void not only on
substantive grounds of being unlawful, but also on procedural grounds of being unreasonable.
Our Supreme Court, while determining the constitutionality of a law, however examines only
the substantive question i.e., whether the law is within the power of the authority concerned
or not. It is not expected to go into the question of its reasonableness, suitability or policy
implications. The American principle of judicial supremacy is also recognised in our
constitutional system, but to a limited extent. Nor do we fully follow the British Principle of
parliamentary supremacy. There are many limitations on the sovereignty of the Parliament in
our country, like the written character of the Constitution, the federalism with division of
powers, the Fundamental Rights and the Judicial Review. In effect, what exists in India is a
synthesis both, that is, the American principle of judicial supremacy and the British principle
of parliamentary supremacy. The scope of judicial review in India is somewhat
circumscribed as compared to that in the USA. In India the fundamental rights are not so
broadly coded as in the USA and the limitations there on have been stated in the constitution
itself and this task has not been left to the courts. The constitution makers adopted this
strategy as they felt that the courts might find it difficult to work out the limitations on the
fundamental rights and the same better be laid down in the constitution itself. The
constitution makers also felt that the judiciary should not be raised at the level of ‘Super
Legislature’, whatever the justification for the methodology adopted by the makers of the
Constitution, the inevitable result of this has been to restrict the range of judicial review in
India. It must, however, be conceded that the American Supreme Court has consumed its
power to interpret the constitution liberally and has made so thorough a use of the due
process of law clause that it has become more than a mere interpreter of law. It has, in fact
come to occupy the position of a maker of law and has been correctly described as a ‘third
chamber of the legislature, indeed, as a super legislature.’ Of course, the US Supreme Court
has assumed this position; it has not been specifically conferred upon it by the constitution.
The framers of the Indian constitution took good care not to embody the due process of law
clause in the constitution. On the contrary, the Indian constitution refers it to ‘procedure
established by law’. It can invalidate laws if they violate provisions of the constitution but not
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on the ground that they are bad laws. In other words the Indian Judiciary including the
Supreme Court is not a Third Chamber claiming the power to sit in judgement on the policy
embodied in the legislation passed by the legislature. The power of judicial review is
exercised differently in different political systems. In countries like the United Kingdom32
where the constitution is largely unwritten and unitary in character and parliament is
sovereign, the courts can declare an act of parliament to be incompatible with the
constitution, but they cannot invalidate a law for being inconsistent with the constitution. In
other words, the judiciary can only interpret the constitution. In Germany33, the
Constitutional Court is empowered to shoot down not only ordinary laws but also
constitutional amendments for being inconsistent with the fundamental character of the
constitution. The situation is different in countries where a written and federal constitution
limits the powers of parliament. For instance, in the USA, the Supreme Court can strike down
legislation enacted by Congress if it finds the same to be incompatible with the constitution.
However in India, there has been a long tussle between parliament and the Supreme Court on
the scope and limits of judicial review. The twenty-fourth amendment to the constitution
passed in 1971 authorised parliament to amend any provision of the constitution. However,
the Supreme Court subsequently declared that while parliament was competent to amend any
provision of the constitution, any amendment had to conform to the basic framework of the
constitution. This led the government of Prime Minister Indra Gandhi to introduce the forty-
second amendment to the constitution during the proclamation of emergency, which stripped
the apex court of the power of reviewing an amendment to the constitution. However, the
forty-third and forty-fourth amendments undid the provisions of the forty-second amendment
regarding powers of the Supreme Court to judge the validity of constitutional amendments.
Thus we see that the scope of Judicial Review in India is somewhat circumscribed as
compared to that in the U.S.A. In India the fundamental rights are not so broadly coded as in
the U.S.A and limitations there on have been stated in the constitution itself and this task has
not been left to the courts. The constitution makers adopted this strategy as they felt that the
courts might find it difficult to work act the limitations on the fundamental rights and the
same better be laid down in the constitution itself. The constitution makers also felt that the
Judiciary should not be raised at the level of 'Super legislature', whatever the justification for
the methods logy adopted by the constitution makers, the inevitable result of this has been to
restrict the range of judicial review in India. It must, however, be conceded that the

32
United Kingdom British parliament Act 1876
33
United states constitution 1868

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American Supreme Court has consumed its power to interpret the constitution liberally and
has made so thorough a use of the due process of law clause interpret the constitution
liberally and has made so thorough a use of the due process of law clause that it has become
more than a more interpreter of law. It has, in fact come to occupy the position of a maker of
law and has been correctly described as a 'third chamber of the legislature, indeed, as a super
legislature. Of course, the U.S. Supreme Court has assumed this position; it has not been
specifically conferred upon it by the constitution. Power of judiciary over legislative action
vested in the high courts and supreme court under article 226 and 32 of Indian constitution
respectively which is a basic feature of Indian constitution34 .Like the American Supreme
Court, the Supreme Court of India enjoys the power of Judicial Review' and this power has
been specifically recognized by the constitution. However its authority in relation to 'judicial
review of legislation is more restricted than that of the American Supreme Court. The
framers of the Indian constitution took, good care not to embody the due process of law
clause in the constitution on the contrary, the Indian constitution refers to 'procedure
established by law' consequently, there has been no scope for the development
"Alexandrowicz is not conceived as an additional constitution maker but as a body to apply
express law." It can invalidate laws if they violate provisions of the constitution but not on
the ground that they are bad laws35. In other words the Indian Judiciary including the
Supreme Court is not a Third Chamber claiming the power to sit in judgement on the policy
embodied in the legislation passed by the legislature.

6.Judiciary As Protector and guardian of Indian constitution:

To ensure the constitutional control over the executive and the legislative organs of the
government, it is necessary for the higher judiciary to make its record impressive. It creates
confidence among people in the Constitution and in the judicial system. ‘The judiciary was to
be an arm of social of social revolution upholding the equality that Indian had longed for’36.
The judicial control also communicates the message that the rule of law is a respectable
alternative against the extremism and tendency of violence. Such advance methods of
constitutional control are necessary to achieve the goal of the fairness of the Constitution,

34
I. Chandra Kumar v Union of India AIR 1997 SC 1125
35
G. Austin- The Indian constitution cornerstone of nation, p.169
36
Dr. B.R. Ambedkar on constitutional assembly debate, 1950

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which relives the people of the India. The other is that the citizen are ensured that the court is
working as the guardian of the all fundamental freedom provided under the Indian
Constitution37. The valedictory of controls amongst the Union and states the compulsory
workout of judicial review in contrast to the statutory achievement and the executive
authority of the government. It maintains belief in independence of judiciary in democratic
system of the government. The essential rights assimilated in the Indian Constitution, which
deliver the statutory controls to the courts with concrete exercise of judicial review over
government structures and uphold the powers of separation calculated in the Indian
Constitution. In I.R. Coelho (Dead) v. State of Tamil Nadu & Others38, case the interrogation
was elevated beforehand the Indian Supreme Court, whether the judiciary review the
performance of Parliament, which remained positioned in the ninth Scheduled of the
Constitution of India. The judiciary believed that if any law is conflicting to the requirements
of the Indian Constitution, the Supreme Court may strike down and declare such law to be
void, as it is inserted into the ninth Scheduled of the Indian Constitution. The supreme court,
added that the growth and jurisprudence altogether over the place, where fundamental rights,
under the Constitution has completed strong that the controls are not restricted, nor has thin
rights.

37
Sri Alladi Krishnaswamy Aiyer, Member of the drafting Committee
38
AIR 2007 SC 56

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CONCLUSION

Dr. Ambedkar said the power of judicial review is the heart of Indian constitution which
enables the judiciary to check balance the law and restrict the government from any
encroachment of power used in arbitrary and capricious manner. Judicial Review refers to the
power of judiciary to interpret the constitution and to declare any such law or order of the
legislature and executive void, if it finds them in conflict the constitution of India. Judicial
review is the power of judiciary by which the court reviews the law and rules of the
legislature and executive in case that comes before them, and to determine the constitutional
validity of any laws. One of the most important features of the judiciary is the power of
judicial review. Judicial review is the power of the Supreme Court and the High Courts to
examine the constitutionality of the Acts of the Parliament and the state legislatures and
executive orders both of the centre and state governments. If it is found that any of its
provisions are in violation of the provisions of the constitution, they can be declared
unconstitutional or ultra-vires of the constitution and a law declared by the Supreme Court as
unconstitutional cannot be enforced by the government.

Judiciary play a important role in the protection of civil rights and liberties, if any law is
against the article 13 of Indian constitution then supreme court has power to review the law
and if the law is violating human rights then the court must declared it to be void. Judiciary is
the patron of human rights and liberties as well as dignity of human beings.

Judiciary is the guardian of the Indian constitution and when government makes a law which
infringes the fundamental rights of the people then it is the judiciary who check the law and if
it infringes the fundamental right of the people then judges make the law void. people may
loose faith in the executive or may be in the legislature but if they loose faith in the judiciary
then it is the darkest day of our country. Judiciary is just like patron of our fundamental
rights.

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BIBLIOGRAPHY

REPORT
1. U.S Reports: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
2. 20th Report of the Law Commission of India (1983)
3. . Abhor committee report 1989
Web sites
1.http://www.legalservicesindia.in
2 http://www. Indiankanoon.com
3.www.lawoctopus. com
4. http://www.oyez.org.in

Books

1.Pandey, J.N., Constitutional law of India, Central law agency, (55th ed. 2018)
2.Basu, D.D., Introduction to the constitution of India, Lexis Nexis, (22nd ed. 2018)
3.Jain, M.P., Indian Constitutional Law, Lexis Nexis, (22nd ed. 2018)
4.Seervai, H.M. Indian Constitution, Lexis Nexis, (26th ed. 2016)
5.Bakshi, P.M. The Constitution of India, Universal law publications, (14th ed. 2018)
6.Austin, Glanville, Indian Constitution, Oxford press, (29th ed. 2017)

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