Judicial Review

Judicial review is the power of the Supreme Court to review actions taken by the legislative branch and the executive branch (president) and decide whether or not those actions are legal under the Constitution.

Telangana Chief Minister K Chandrashekar Rao is confident the Centre will accept the state’s demand to include the state legislation in the 9th Schedule of the Indian Constitution to this effect but said the state will approach the Supreme Court if necessary.

The inclusion in the 9th Schedule will provide the legislation immunity from judicial review. Once a law is enacted and included in the Ninth Schedule, it gets protection under Article 31-B (validation of certain Acts and Regulations) and is not subject to judicial scrutiny.

The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India has come to control by judicial review every aspect of governmental and public functions.

In the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of India the propounded the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution, The Judges made no attempt to define the basic structure of the Constitution in clear terms.

S.M. Sikri, C.J mentioned five basic features: 1. Supremacy of the Constitution; 2. Republican and democratic form of Government; 3. Secular character of the Constitution; 4. Separation of powers between the legislature, the executive and the judiciary; and 5. Federal character of the Constitution, according to www.mondaq.com

In a very significant judgment in January this year, a nine-judge Bench of the Supreme Court gave a ruling that there could not be any blanket immunity from judicial review of laws inserted in the Ninth Schedule of the Constitution.

"The power to grant absolute immunity at will is not compatible with the basic structure doctrine and, therefore, after April 24, 1973 the laws included in the Ninth Schedule would not have absolute immunity.

The validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles underlying these Articles," the Bench said.