What is the Doctrine of Judicial Review? Is it part of the basic structure of the Constitution? Discuss in the light of the latest decisions of the Supreme Court.

Question: What is the Doctrine of Judicial Review? Is it part of the basic structure of the Constitution? Discuss in the light of the latest decisions of the Supreme Court. [BJS 1987]

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Answer

In a democracy governed by law, Judiciary constantly stands as the sentinel on the qui vive to protect the Fundamental Rights of the people. In this regard, the Doctrine of Judicial review encompasses the power of the judiciary to review actions of legislative and judiciary thus enshrining the principle of Rule of Law and maintaining the separation of power principle at the grassroots level.

In other words, it means that the constitution is the supreme law of the land, and any law inconsistent therewith is void. The courts perform the role of expounding the provisions of the constitution and exercise the power of declaring any law or administrative action which may be inconsistent with the constitution as unconstitutional and hence void.

The Constitution of India explicitly establishes the Doctrine of Judicial Review in several Articles, such as 13, 32, 131-136, 143, 226, and 246. The doctrine of judicial review is thus firmly rooted in India and has the explicit sanction of the Constitution. Article 13 (2) reads as “The state shall not make any law which takes away or abridges the rights conferred by this Part III containing Fundamental Rights and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Hence, judicial review can be well understood to be the basic structure of the Constitution.

The Apex Court has immensely widened the scope of judicial review with the case of Maneka Gandhi v. Union of India [1978 AIR 597]. The concept of natural justice was accepted by the court as a main ingredient of law thereby importing the American principle of “due process of law” into the Constitution of India.

In Chandra Kumar v. Union of India [1997 (2) SCR 1186], it was observed that the jurisdiction conferred on the Supreme Court under Article 32 and on the High Court under Article. 226/227 of the Constitution has been held to be part of the inviolable basic structure of the Constitution which cannot be ousted even by a Constitutional Amendment.

Further, in I.R. Coelho v. State of Tamil Nadu AIR 2008 SC 861, the court held that any act inserted in Schedule 9 can be judicially scrutinized but only those enactments which are inserted after 24th April 1973.

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