INTRODUCTION

The Indian Judicary is partly a continuation of the British

Legal System . It is based on a typical hybrid system known
as the common law system, in which customs, precedents
and legislative are all components of the law. The
constitution of India is the supreme legal document of the
country. There are various levels of judiciary, different types
of courts, each with varying powers depending on the tier
and jurisdiction bestowed upon them. They form a strict in
hierarchy of importance, in line with order of the courts in
which they sit, with the supreme court of India at the top
,followed by high courts of respective states with district
judges sitting in District Civil Juge (Junior Division ) at the
bottom. Courts hear the criminal and civil cases, including
disputes between the individuals and the government .The
Indian Judiciary is independent of the executive and
legislative branches of the government according to the
constitution.
Talking about the judicial review, it is the authority of the
courts to examine the acts of the legislature and the
executive with a view to determine their constitutional
validity. It involves the power to declare null and void all
such law or rules as are held to be in the conflict with the
constitution or are considered to be violative or in excess of
the powers allocated by the constitution to these two organs
of the government. It is the negative power of the judiciary in
as it involves the power to reject as ultra vires the acts of the
legislature and the executive. But it also act as an safeguard
against any excessive or arbitrary use of powers exercised by
them. It is the power to question abd set aside decrees or
statutes in the name of higher law (constitution).

Judiciary in India
The Constitution of India provides for a single integrated judicial
system with the Supreme Court at the apex, High Courts at the
middle (state) level and District Courts at the local level. It also
provides for an independent and powerful judicial system.
Judiciary in India acts as the guardian protector of the
Constitution and the fundamental rights of the people.
Salient Features of Indian Judiciary
1. Single and Integrated Judicial System:
The Constitution establishes a single integrated judicial system
for the whole of India. The Supreme Court of India is the highest
court of the country and below it are the High Courts at the state
level. Other courts (Subordinate Courts) work under the High
Courts. The Supreme Court controls and runs the judicial
administration of India. All courts in India form links of a single
judicial system.
2. Independence of Judiciary:
The Constitution of India makes judiciary truly independent.

It provides for:
(i) Appointment of judges by the President,
(ii) High qualifications for appointment as judges,
(iii) Removal of judges by a difficult method of impeachment,

(iv) High salaries, pension and other service benefits for judges,
(v) Independent establishment for the Judiciary, and
(vi) Adequate powers and functional autonomy for the Judiciary.
All these features together make the Indian Judiciary an
independent judiciary.
3. Judiciary as the Interpreter of the Constitution:
The Constitution of India is a written and enacted constitution.
The right to interpret and clarify the Constitution has been given
to the Supreme Court. It is the final interpreter of the provisions
of the Constitution of India.
4. Judicial Review:
The Constitution of India is the supreme law of the land. The
Supreme Court acts as the interpreter and protector of the
Constitution. It is the guardian of the fundamental rights and
freedoms of the people. For performing this role, it exercises the
power of judicial review. The Supreme Court has the power to
determine the constitutional validity of all laws. It can reject any
such law which is held to be unconstitutional. High Courts also
exercise this power.

5. High Court for each states as well a Provision for

Joint High Courts:
The Constitution lays down that there is to be a High Court for
each state. However, two or more states can, by mutual consent,
have a Joint High Court.

6. Supreme Court as the Arbiter of legal disputes

between the Union and States:
The Constitution gives to the Supreme Court the
jurisdiction in all cases of disputes:
(i) Between the Government of India and one or more states,
(ii) Between the Government of India and any state or states on
one side and one or more states on the other, and
(iii) Between two or more states.
7. Guardian of Fundamental Rights:
Indian judiciary acts as the guardian of fundamental rights and
freedoms of the people. The people have the Right to
Constitutional Remedies under which they can seek the
protection of the courts for preventing a violation or for meeting
any threat to their rights. The Supreme Court and the High
Courts have the power to issue writs for this purpose.

8. Separation of Judiciary from the Executive:

The Constitution of India provides for a separation between the
judiciary and the other two organs of the government. The
judiciary is neither a branch of the executive nor in any way
subordinate to it. The judicial administration in India is
oraganised and run in accordance with the rules and orders of
the Supreme Court.
9. Open Trial:
The courts in India are free. These conduct open trials. The
accused is always given full opportunity to defend himself. The
state provides free legal aid to the poor and needy.
10. Judicial Activism:
Indian Judicial System has been becoming more and more
active. The Supreme Court has been coming out with judicial
decisions and directives aimed at active protection of public
interest and human rights. Judiciary has been giving directives to
public officials for ensuring a better security for the rights of the
public. The Public Interest Litigation system has been picking up.
The system of Lok Adalats has also taken a proper shape and
health.
11. Public Interest Litigation System:
Under this system the courts of law in India can initiate and
enforce action for securing any significant public or general
interest which is being adversely affected or is likely to be so by
the action of any agency, public or private. Under it any citizen or
a group or a voluntary organisation, or even a court herself, can

bring to notice any case demanding action for protecting and

satisfying a public interest.
It provides for an easy, simple, speedier and less expensive
system of providing judicial relief to the aggrieved public. With
all these features, the Indian Judicial System is an independent,
impartial, free, powerful and efficient judicial system.

Judicial Review in India

The power of judiciary to review and determine the validity of a

law or an order may be described as the powers of Judicial
Review.
It means that the constitution is the supreme law of the land and
any law inconsistent therewith is void through judicial review.
It is the power exerted by the courts of a country to examine the
actions of the legislatures, executive and administrative arms of
government and to ensure that such actions conform to the
provisions of the nations Constitution. Judicial review has two
important functions, like, of legitimizing government action and
the protection of constitution against any undue encroachment
by the government.

Extensive Concept of Judicial Review in India:

The Supreme Court has been vested with the power of judicial
review. It means that the Supreme Court may review its own
Judgement order. Judicial review can be defined as the
competence of a court of law to declare the constitutionality or
otherwise of a legislative enactment.
Being the guardian of the Fundamental Rights and arbiter of the
constitutional conflicts between the Union and the States with
respect to the division of powers between them, the Supreme
Court enjoys the competence to exercise the power of reviewing
legislative enactments both of Parliament and the States
legislatures.
The power of the court to declare legislative enactments invalid is
expressively provided by the Constitution under Article 13, which
declares that every law in force, or every future law inconsistent
with or in derogation of the Fundamental Rights, shall be void.
Other Articles of the Constitution (131-136) have also
expressively vested in the Supreme Court the power of reviewing
legislative enactments of the Union and the States.

The jurisdiction of the Supreme Court was curtailed by the 42nd

Amendment of the Constitution (1976), in several ways. But
some of these changes have been repealed by the 43rd
Amendment Act, 1977. But there are several other provisions
which were introduced by the 42nd Amendment Act 1976 not
repealed so far.
These are:
(i) Arts. 323 A-B. The intent of these two new Articles was to take
away the jurisdiction of the Supreme Court under Art. 32 over
orders and decisions of Administrative Tribunals. These Articles
could, however, be implemented only by legislation. Art. 323A
has been implemented by the Administrative Tribunals Act, 1985
(ii) Arts. 368 (4)-(5). These two Clauses were inserted in Art. 368
with a view to preventing the Supreme Court to invalidate any
Constitutional Amendment Act on the theory of basic features
of the Constitution.
These Clauses have been emasculated by the Supreme Court
itself, striking them down on the ground that they are violative in
the two basic features of the Constitution:
(a) the limited nature of the amending power under Art. 368 and
(b) judicial review in the Minerva Mills case.
The court was very reluctant and cautious to exercise its power of
Judicial Review, during the first decade, when the Supreme
Court declared invalid only one of total 694 Acts passed by the
Parliament.
During the second decade the court asserted its authority
without any hesitation which is reflected in the famous Golak
Nath case and Kesavananda Barti case. In these cases the
Supreme Court assumed the role of constitution making.

Indian Judiciary has been able to overcome the restriction that

was put on it by the 42nd amendment, with the help of the 43rd
and 44th amendments. Now the redeeming quality of Indian
judiciary is that no future governments could clip its wings or
dilute its right of Judicial Review. In fact, now the Judicial
Review is considered to be the basic feature of our Constitution.

Constitutional Amendments
Judicial Review:

and

the

Use

of

Until 1967, the Supreme Court upheld that the Amendment Acts
were not ordinary laws and could not be struck down by the
application of Article 13 (2).
It was in the famous Golak Nath Vs. the state of Punjab case in
1967, where the validity of three constitutional amendments (1st,
4th and 17th) was challenged, that the Supreme Court reversed
its earlier decision and uphold the provision under article 368
which put a check on the Parliaments propensity to abridge the
fundamental Rights under chapter III of the Constitution.
In the Kesavananda Bharti Vs. State of Kerala case in 1973, the
constitutional validity of the twenty-fourth, twenty fifth and
twenty ninth amendments was challenged wherein the court held
that even though the Parliament is entitled to amend any
provision of the constitution it should not tamper with the
essential features of the constitution; and that Article 31c is void
since it takes away invaluable fundamental rights.
The court balances the felt necessities of the time and
constitutional fundamentals when scrutinizing the
validity of any law. H.M. Seervai has enumerated some
of the canyons, maxims and norms followed by the
court:
1. There is a presumption in favour of constitutionality, and a law
will riot be declared tin constitutional unless the case is so clear

as to be free from doubt; and the onus to prove that its unconstitutional lies upon the person who challenges it.
2. Where the validity of a stature is questioned and there are two
interpretations, one of which would make the law valid, and the
other void, the former must be preferred and the validity of the
law will be upheld.
3. The court will not decide constitutional questions if a case is
capable of being decided on other grounds.
4. The court will not decide a larger constitutional question than
is required by the case before it.
5. The court will not hear an objection as to the constitutionality
of a law by a person whose rights are not affected by it.
6. Ordinarily, courts should not pronounce on the validity of an
Act or part of an Act which has not been brought into force,
because till then the question of validity would be merely
academic.
7. In a later case, the Minerva Mill case, the Supreme Court went
a step ahead. The 42nd Constitutional Amendment of 1976
among other things had added a clause to Article 368 placing a
constitutional amendment beyond judicial review. The court held
that this was against the doctrine of judicial review, the basic
feature of the Constitution

Strategy of Judicial Review:

The strategy of judicial review can be divided broadly into public
law review and private law review. Under the Constitution,
legislative and administrative actions can be reviewed by courts
under Articles 32, 136, 226 and 227. Such review is called public
law review. Article 32 guarantees the right to move the Supreme
Court if any fundamental right can be reviewed under this
provision.

Writs:
Article 226 can be, and is more often, used for reviewing the
action of administration. One can say that there is an increase of
litigation in this respect. The High Court can issue directions,
orders or writs in the nature of habeas corpus mandamus,
prohibition, quo-warranto, and certiorari for the enforcement of
fundamental rights or for any other purpose.
Habeas corpus is a write issued by the court to bring before the
court a person from illegal custody. The court will examine the
legality of detention and release the person if detention is found
illegal.
Mandamus is issued to a public authority to do an act which
under law, it is obliged to do or to forbear from doing.
Prohibition is a write to prevent a court or tribune! from doing
something in excess of its authority. High Court has power to
issue an order of prohibition to the executive authority
prohibiting it from acting without jurisdiction.
Certiorari is a write issued to a judicial or quasi-judicial authority
to correct its order. This writ is issued on specified grounds like
violation of natural justice; excess, abuse or lack of jurisdiction;
fraud; and error of law apparent on the face of the record.
Quo-warranto is a writ issued to a person who authorisedly
occupies a public office to step down from that office. High
courts and the Supreme Court have the power to issue not only
these writs but also appropriate directions and orders.

Judicial Review and Contempt of Court:

It is mandatory that an administrative officer or authority should
obey the directions of a court and execute the decisions of the
court. What action can be court take if they do not do this? The
court has neither the sword not the purse like the executive. It
has a potential power.

It has the power to take action of contempt of court. Those who

violate or disobey the decisions of the courts are proceeded
against under this power. They can be punished and sent to jail.
Obviously the contempt power is the only weapon in the hand of
judiciary to see that their decisions are executed.
Locus standi is the first limitation on judicial review. This means
that only a person aggrieved by an administrative action or by an
unjust provision of law shall have the right to move the court for
redressal. Under this traditional rule a third party who is not
affected by the action cannot move the court.
Another limitation is that before a person moves the High Courts
and the Supreme Court invoking their extraordinary jurisdiction,
he should have exhausted all alternative remedies. For example,
these may be a hierarchy of authorities provided in legislation to
look-into the grievances of the affected party. The aggrieved
person should first approach these authorities for a remedy
before invoking extraordinary jurisdiction of the courts.
However, the alternative remedies should be equally efficacious
and effective as the remedies available from the courts are. If
they are not, the jurisdiction can be invoked. In cases of manifest
injustice and the violation of procedural fairness, alternative
remedy is not a bar.
A rule has been evolved to avoid repeated adjudication on the
same matter between the same parties. If the case is finally
disposed of on merits the same issue cannot be re-agitated by
any of the parties filing another case. This limitation is called res
judicata.