Judicial Review Article 13

Article 13 of the Indian Constitution introduces the concept of judicial review, empowering the judiciary to assess laws concerning fundamental rights. Judicial review is vital for maintaining constitutional integrity, preventing autocracy, and safeguarding the basic structure of the constitution. It also promotes gender justice, societal reform, and social justice. However, challenges include impeding government operations, potential judicial overreach, and erosion of public trust. To address these, proposals include limiting judicial review, promoting judicial self-restraint, enhancing cooperation between branches of government, and strengthening legislative oversight. These measures aim to establish a balanced governance framework respects fundamental rights and encourages effective collaboration among the judiciary, executive, and legislative branches.

Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it implicitly provides for the doctrine of judicial review. Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. Judicial review also encompasses the scrutiny of past judicial decisions by the judiciary itself. This authority is granted to both the Supreme Court (under Article 32) and the high courts (under Article 226). However, the word ‘judicial review’ is not used anywhere in the Constitution.

Judicial Review is the power of the judiciary (courts) to examine the constitutionality of legislative enactments, executive actions, and administrative decisions. If such laws or actions are found to be unconstitutional, the judiciary has the authority to invalidate them.

Within the framework of Article 13, the term ‘law’ has been given a wide connotation including:

• Permanent legislation enacted by either the Parliament or state legislatures.
• Temporary measures such as ordinances issued by the President or state governors.
• Statutory instruments like orders, by-laws, rules, regulations, or notifications, which constitute delegated legislation or executive legislation.
• Non-legislative sources of law, such as customs or usages recognized as having legal force.

Additionally, Article 13 specifies that a constitutional amendment does not fall under the category of 'law' and therefore cannot be subjected to challenge.

IR Coelho Case: In the IR Coelho Case of 2008, the court ruled that any law included in the 9th Schedule of the Indian Constitution after April 24, 1973, could be subject to judicial review. This decision effectively invalidated Article 31A of the Constitution, which previously provided protection from judicial scrutiny for laws included in the 9th Schedule.

The importance of judicial review in India is multifaceted, encompassing both constitutional and societal dimensions:

1. Constitutional Importance:
   • Federal Balance : In the SR Bommai case, the Supreme Court elaborated on the limitations under which President's rule can be imposed, aiming to prevent the consolidation of central authority and safeguard against autocratic tendencies
   • Preventing Autocracy Cases like Krishna Kumar Singh highlight how judicial review prevents autocracy by condemning actions like the re-promulgation of ordinances, which undermines democratic legislative processes.
   • Protects the Basic structure For example, in the NJAC verdict, the Supreme Court invalidated the National Judicial Appointments Commission (NJAC), emphasizing the need to safeguard the independence of the judiciary, which is considered a fundamental component of the basic structure of the Constitution.
2. Importance for Individuals and Society:
   • Gender Justice: For Eg ,The Vishakha Guidelines, formulated by the Supreme Court, exemplify how judicial review can promote gender justice by addressing issues like sexual harassment in the workplace.
   • Societal Reform Landmark decisions such as the Shayra Bano verdict, which declared the practice of triple talaq unconstitutional, illustrate how judicial review can drive societal reform by striking down discriminatory practices and upholding constitutional values.
   • Social Justice : In 2020, the Supreme Court revisited its own decision in the Kashinath Mahajan Case and reinstated the prohibition on anticipatory bail under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, emphasizing its commitment to social justice.

• Impeding Government Functioning: Instances such as a Niti Aayog study revealing that the government incurred a loss of ₹8000 crore due to five judicial orders favoring environmental protection illustrate how judicial interventions can hinder governmental operations.
• Judicial Overreach: Examples like the prohibition of liquor shops within a 5 km radius of National Highways indicate instances where the judiciary may be perceived as overstepping its boundaries in policy matters.
• Lack of Domain Expertise: Decisions like the ban on BS 4 vehicles may highlight instances where the judiciary's intervention may lack expertise in technical matters, potentially leading to unintended consequences.
• Erosion of Public Trust: Frequent interventions by the judiciary in governmental affairs can erode public trust in the functioning of the government, potentially leading to skepticism and distrust among citizens.
• Emphasis on Public Interest Litigations (PILs): There is a perception that more importance is often given to PILs over regular cases, which may lead to an imbalance in the judicial system's priorities.

To address the limitations and ensure a balanced approach, the following steps could be taken:

• Restrict Judicial Review: Limit judicial review to cases where fundamental rights are directly impacted, thereby ensuring that the judiciary focuses primarily on upholding constitutional principles.
• Curbing Judicial Overreach Implement the Doctrine of Self-Restraint within the judiciary, encouraging judges to exercise caution and restraint in their decisions to prevent overstepping their constitutional bounds.
• Foster Executive-Judicial Cooperation: Encourage greater cooperation between the executive and judiciary, as highlighted in the Economic Survey 2018, to facilitate a more harmonious separation of powers. This cooperative approach could help in resolving conflicts and promoting a smoother functioning of the government.
• Enhance Parliamentary Scrutiny: Strengthen the role of parliament in scrutinizing laws to ensure that legislative measures are thoroughly reviewed and debated before enactment, thus reducing the need for judicial intervention in legislative matters.

Judicial review is a key aspect of rule of law and doctrine of separation of powers. It helps to keep the various organs of the government in check and ensure that all follow the constitution. Even though the spirit of judicial review pervades the Indian Constitution, the words ‘judicial review’ are not explicitly given anywhere. It has been declared to be a ‘basic structure’ of the Constitution itself in the Indira Gandhi v. Raj Narain Case (1975) by the Supreme Court.

The continued rigour of judicial review and respect for it is premised on its judicious use. Judiciary should exercise restraint so that no allegations of judicial overreach can be claimed. By adopting these measures, India can promote a more balanced and effective system of governance where the judiciary plays its role in protecting fundamental rights while also respecting the boundaries of its authority, fostering cooperation between branches of government, and ensuring effective legislative scrutiny.