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    BlogJudicial Review: Need for Reforms

    Judicial Review: Need for Reforms

    -Aarju Jangra

    Why in news?

    Judicial review is a system of checks and balances in a democratic form of government that perennially comes forward via different national issues and concerns. On the central vista project, Supreme Court refused to tend it as the unique one that required “intensified” judicial review. Supreme Court stated that “the government was entitled to commit errors or achieve successes in policy matters without the court’s interference as long as it follows constitutional principles.”


    In India, judicial review is exercised as a doctrine through which the judiciary reviews legislative and executive actions. It empowers the judiciary to check the validity of the acts of the organs of the government and declare them unconstitutional if inconsistent or abrogates the basic structure of the constitution. J. Syed Mohamed Quadri, in his book- “Judicial Review of Administrative Action” explained the concept of judicial review in three forms:

    • Judicial review of legislative actions:

    Primarily, judicial review was done in the substantive form of legislative actions which validates the action done by the legislature but nowadays, the form is somehow adaptive in its nature. It looks into the procedure the legislature followed to examine the validity of the statute.

    • Judicial review of administrative actions: The administrative actions are generally statutory having the force of law and therefore such actions must be fair enough and should act impartially and reasonably. There are some grounds for judicial review for administrative actions like illegality, procedural impropriety, irrationality, and proportionality.
    • Judicial review of judicial decisions: when the judiciary review its own judgments or validates the other decisions of the courts, it remarks the judicial review of judicial decisions. It established a long run debate over amendment as to whether the amendment is a law or not. As if the amendment is a law then it would be covered under the facet of judicial review and a review of any amendment can be done. The judgment in the Keshavananda Bharti case resolved this dilemma and made a remark about this concern.

    Judicial Review and Indian Constitution

    The term “judicial review” is not expressly mentioned in the Indian Constitution but reflected through the number of articles as the Supreme Court and High Courts derived the power of judicial review from the Indian Constitution itself i.e. articles 13, 32, 136, 226, and 227 respectively.

    Article 13 stated the validity of laws with predominance of Fundamental rights provided in part III of COI and establish the supremacy of the constitution.  In the case of A K Gopalan v. State of Madras, AIR 1950 SC 27 Supreme Court held that laws are to be checked under the constitution of India and it is up to the judiciary to validate those enactments as constitutional or not. In Keshavananda Bharti v. State of Kerala AIR 1973, judicial review was considered as the element of the doctrine of Basic Structure where it was said that the legislature is empowered to amend the constitution but it shall not alter its basic structure. Dr. B. R. Ambedkar, described Articles 32 and 226 as the heart and soul of the Indian Constitution as it renders the constitutional remedies and strengthens the principle of locus standi.

    Features of Judicial Review

    • Judicial review prevents the despotism of executives and maintains federal balance.
    • The judicial review covers only the question of law and cannot be exercised for political issues.
    • Such power of the Supreme Court is not instinctive, however, when any law or rule is pointedly challenged by the people in courts or during precedents too, the power of judicial review is exercised.
    • The power of judicial review is also guaranteed for entrenching the judiciary’s position and securing the independent judiciary.

    Limitation of judicial review

    The power of judicial review is exercised along with its limitations even after it is invoked through vast interpretation. When the judiciary interferes with the executive’s mandate by crossing its threshold, it leads to judicial activism and can further lead the way to judicial overreach. In the case of Marbury v. Madison, 5 U.S. 137 it was held that the “court should not take jurisdiction if it should not, but it is equally true that it must take jurisdiction if it should.”

    The judicial review in the administrative actions is restricted to the procedure established by law and provides certain grounds that become a pedestal for the courts to determine their jurisdiction such as jurisdictional error, irrationality, proportionality, procedural impropriety and legitimate expectation. Any action of the judiciary in exercising the power of judicial review beyond these grounds leads to judicial overreach. It is limited only to the question of the constitutional validity of laws and actions of the legislature and executive and not to the policies and opinions of the government.

    The doctrine of strict necessity

    This doctrine states that if the strict necessity requires, only then the court must rule on constitutional matters. Therefore, the questions on the law will not be interpreted in a wider facet than required. It is the doctrine of strict necessity which prevents the judiciary from intervening in every matter and concerning the unavoidable circumstances and conditions that must exist for disposing of a constitutional issue.

    Why it is important?

    Supreme Court stated the importance of this principle in the case of K.B. Nagur v. Union of India, 2009 saying that “we are conscious of the fact that this court has to adopt a purely judicial approach. The constitution and the rule of law are the only supreme powers in any democracy and no higher duty rests upon this court than to enforce, by its decree, the will of the legislature, as expressed in a statute is plainly and unmistakably in violation of the constitution or rule of law.”

    Erroneous judicial review

    It was oftentimes observed that the judicial decisions of trial courts overruled by higher courts but after a long delay the decision was observed to be wrong as held in Santosh Kumar Satish Bhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498, where the petitioner was convicted for the capital punishment by trial court and high court but later on accepted by the apex court that the judgment in the Rajiv Gandhi Assassination Case was erroneous and incautious which has come after thirteen years of his hanging. Prabha Sridevan former justice of Madras High Court said that “there is no severe miscarriage of justice other than this.”

    Is there any need for reform in the Doctrine of Judicial Review?

    Indian judiciary is an institution with the slogan of “Justice to All”; where people have a lot of faith in the procedure and judgments of the Supreme Court and High courts along with its’ subordinate courts and tribunals. To maintain this belief and faith of common people, the Indian judicial system needs to be reformed and altered with its’ erroneous provisions; so that justice would not be denied anyhow by improving the quality of justice so that courts become more approachable to the public.

     Way Forward

    The focal point for this is to improvise the intent of filing PILs or writ petitions so that the provision should not be misused which cause unnecessary delay in delivering of justice due to which people might lose their faith in the judiciary. Because of the provision of Judicial review, the pendency of cases increased earlier. Hence, another important aspect of judicial review is to provide speedy justice by clarifying the flaws of acts or omissions of the organs of the government for which the formation and functioning of the High Courts in India need drastic changes as suggested by the 230th Law Commission Report on “Reforms in the Judiciary.”

    “The law Commission of India is of the firm opinion that considering the alarming situation and the pendency of cases and the constitutional rights of a litigant for a speedy and fair trial, the government of India should direct the state authorities to set up Fast Track Courts in the country, which alone, in the opinion of Law Commission, will solve the perennial problem of pendency of cases and hence erroneous of judicial review.”


    Indian judiciary had to adjudicate between the government and the citizens and at the forefront to make our country a welfare state. The way to adjudicate and maintain a balance between the organs of the government is of judicial review which is a protected tool of citizen’s fundamental right. It is also the interpretational tool for the Indian Judiciary and only a fine equipoise between all the government functionaries leads to prop the constitutional values. Therefore, required reforms must be taken from time to time in the judicial system so that the faith and beliefs of people in the unified standard of the efficient government would not diminish.


    • “Report of the Law Commission of India (report no. 230) on reforms in the Judiciary- some suggestions”, Commonwealth Law Bulletin, 2010
    • Dr. Narendra Kumar, the constitutional law of India, 10th edition

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