Philosophy of judicial review is rooted in the principle that constitution is the fundamental law, all governmental organs must not do anything which is inconsistent with the provisions of constitution; and the theory of ‘limited government.’ when a contradiction between the constitution and enacted law exists, it is the duty of judges to resolve it. Thus, judicial review makes constitution legalistic. In a federal system, it is a necessary consequence to have an independent and impartial judiciary to resolve disputes.

‘Judicial Review’ means that the judiciary can declare a law or legislation as unconstitutional if it is beyond the competence of legislature according to the distribution of powers (under article 246), or it is in contravention of fundamental rights or any of the mandatory provisions of the constitution (For Example, article 301, 304). Even in the absence of such express constitutional provisions, the court can invalidate a law which contravenes any right or is ultra vires, for such power of judicial review follows from the very nature of the constitutional law. Thus, under article 132, the substantial question of law as to the interpretation of constitution is referred to the Supreme Court. The ‘reasonable restrictions’ in case of fundamental rights are subject to court’s supervision. Judicial review is thus ‘the interposition of judicial restraint on the legislative as well as executive organs of the government.

In AK Gopalan verses State of Madras, the power of judicial review was firmly established and the limitations for its exercise were clearly enunciated. In India, the position of the judiciary is somewhere in between the courts in England and the US. In England, a law duly made by parliament cannot be challenged in any court. The English courts have to interpret and apply the law; they have no authority to declare such a law illegal or unconstitutional. In United States, the Supreme Court is supreme and can declare any law unconstitutional on the ground of its not being in “due process of law.”

Our constitution, unlike the English constitution, recognizes the court’s supremacy over the legislative authority, but such supremacy is a very limited one, for it is confined to the field where the legislative power is circumscribed by limitations put upon it by the constitution itself. Within this restricted field the court may, on a scrutiny of law made by the legislature, declare it void if it is found to have transgressed the constitutional limitations. Unlike the USA constitution, the courts in India have no authority to question the wisdom or policy of the law duly made by the legislature.

The Constitution of India contains specific provisions under Articles 32, 226 and 227 enabling the Supreme Court and the High Courts to grant any writs named therein for the enforcement of the fundamental rights or for any other purpose. Indian Constitution is one of the few constitutions in the world that had given the power of judicial review to the higher courts by making specific provisions with so much of clarity and in unambiguous and express terms. Even in the written Constitution of the United States, where the power of judicial review of both executive and legislative acts had grown to disproportionate dimensions, there is no express provision for the power of judicial review of the higher courts. When compared to England and the United States, in India the growth and development of judicial review as a formidable constitutional doctrine was a natural consequence flowing from the written Constitution with specific provisions of judicial review. In India the doctrine has been accepted and approved as one of the basic features of the Constitutional.

How far the framers of the Constitution have envisaged the scope and ambit of this power, when they engraved it in the Constitution, is not evident from the discussions and debate in the Constituent Assembly. But, it has to be noted that the developments on this line in the public law in U.S., that has already established the institution of judicial review as a powerful tool to control maladministration and abuse of public power, must not have missed the attention of our constitution makers, who had scanned the other constitutions of the world to follow and included their better features in the Indian Constitution. Therefore, it is hard to believe that the Indian constitution makers did not envisage the possible future conflicts between judiciary and the other two limbs of the State in a growing pluralistic democracy like India.

It is surprising that when some other Articles which are comparatively of lesser importance had attracted elaborate debates in the Constituent Assembly, Articles 226, 227 and 32 have drawn only very little attention in the debates despite their vast potential for judicial supremacy over the other two organs of the state in future. It may be presumed that the framers of the constitution have not either applied their mind so deep as to forecast possible or eventual conflicts between the judiciary and the other two organs of the state, or that the constitution makers themselves wanted and envisaged the judiciary to be the final arbiter of all disputes of whatever nature arising in the Republic. It is worthwhile to note the observation of the Parliamentary Joint Committee in their report in this connection. They observed: “The success of a constitution depends, indeed far more upon the manner and spirit in which it is worked than upon its formal provisions. It is impossible to foresee, so strange and perplexing are the conditions of the problem, the exact lines which constitutional developments will eventually follow, and it is, therefore, more desirable that those upon whom responsibility will rest should have all reasonable scope for working out there own salvation by the method of trial and error”?

Under Article 245(1), the legislative powers conferred under article 246 are also made “subject to the provision of constitution.” Article 13(2) provides as follows: “the state shall not make any law which takes away or abridges the right conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” thus, this article protects the fundamental rights.

While the basis of judicial review of legislative acts is far more secure under our constitution (because of express and implied provisions in constitution), its potentialities are much more limited as compared to that in USA this is due to the detailed provisions of constitution and the easy method of its amendment – major portion of constitution is liable to be amended if the judiciary proves too obtrusive. Also, during emergency, the legislature given supremacy, as it represents the will of the community.

In India, the exercise of power of judicial review is itself made subject to the limitations, expressly provided in the constitution example articles 32,226, 74, 77, 163, 166, 105, 194, 12, 212. The Supreme Court has also evolved certain self-imposed limitations on its powers of judicial review, as found in res judicata, laches, standing, waiver, etc.

Nevertheless, in several cases, it has been held that the Supreme Court can act as the custodian, defender of rights of people, and democratic system of government only through the judicial review. In Keshavanand Bharti’s case, it was held that the judicial review is a ‘basic feature’ of the constitution and cannot be amended.

The scope of judicial review is sufficient in India, to make supreme court a powerful agency to control the activities of executive and the legislature. In no way, judicial review makes the Supreme Court a rival of the parliament.

Dr. Ambedkar in the drafting committee of the constituent assembly stated that article. 32 were the “most important” article and that “it is the very soul of the constitution and the very heart of it.” Article 32(1) guarantees the right to move Supreme Court by ‘appropriate proceedings’ for the enforcement of fundamental rights (Part III of the constitution). Clause (2) – deals with Supreme Court’s power to issue directions, order or writs, whichever may be appropriate, for the enforcement of fundamental rights.

Article 32 thus provides an expeditious and inexpensive remedy for the protection of fundamental rights from legislative and executive interference. However, a petition under article 32 may be filed to challenge the validity of a law with reference to a provision other than those involving fundamental rights, provided it inevitably causes a restriction on the enjoyment of fundamental rights.

The Supreme Court cannot refuse relief under article 32 on the ground that the aggrieved person may have his remedy from other court (a person need not first exhaust the other remedies and then go to the supreme court); the disputed facts have to be investigated before the relief given; and that petitioner has not asked for proper writ applicable to his case.

In RN Kumar verses Municipal Corp. Of Delhi, a two-judge bench of the supreme court held that the citizens should not come to the court directly for the enforcement of their fundamental rights, but they should first seek remedy in the high courts and then if the parties are dissatisfied with the high court’s judgment, they can approach the supreme court by way of appeal. In this case, the petitioner challenged the imposition of various taxes on their hotel. Disposing the petition the apex court laid down following guidelines for the exercise of the right under art. 32:

1. The scope of article. 226 are wider than article. 32.
2. Hearing of the case at the level of high courts is more convenient to the parties. it saves lot of time.
3. The high court has its own tradition and eminent judges/ lawyers,
4. The Supreme Court’s workload is too much with cases pending before it for the last 10-15 years.

Similarly, in Kanubhai Brahmbhatt verses State of Gujarat, the apex court directed the petitioner to first seek remedy in the high court.