Article 13 of the Indian Constitution

Article 13 declares that all the laws inconsistent with any Fundamental Rights shall be void.

And the LAW, according to Article 13, is

1. Permanent laws enacted by Parliament and State Legislatures
2. Temporary laws like ordinances
3. Statutory instruments like orders, rules, regulations and notifications
4. Non-legislative sources of law like customs or usage having the force of law
5. Although Constitutional Amendments aren’t law and can’t be challenged in the Supreme Court, the Keshavananda Bharti case pronounced that if the constitutional amendment violates the basic structure of the constitution, which includes Fundamental Rights, it can be challenged.

It has to be noted that ‘Judicial Review’ is conferred by Article 13.

Note: The pre-constitution laws are not declared invalid ab initio (from the start). They are invalid only when they are inconsistent with any of ​the fundamental rights.

What is Judicial Review?

• The term’ Judicial Review’ means the Power of a Court to review and potentially strike down an act of Legislature, Executive or Administration as unconstitutional if they are not in line with the provisions of the constitution.  
• The doctrine of Judicial Review has its origin in the USA in the Marbury v/s Madison case of 1803.

Judicial Review of Legislative Action  in India

• The Indian constitution provides for Judicial Review through Articles 13, 32, 131-136, 143, 226, and 246. 
• Judicial Review of Legislative Action is done using basic constitutional doctrines as listed below.
  • Doctrine of Basic Structure, 
  • Doctrine of Pith and Substance: ‘Pith’ means ‘true nature’, and ‘Substance’ means ‘a most important part of something’. Hence, the Doctrine of Pith and Substance says that where the question arises of determining whether a particular law relates to a specific subject (mentioned in one List or another), the Court looks to the true nature and substance of the matter.
  • Doctrine of Colourable Legislation: It means that whatever legislature can’t do directly, it can’t do indirectly.
  • Doctrine of Severability: It means that when a part of the statute is declared unconstitutional, then the unconstitutional part is to be removed, and the remaining valid portion will continue to be valid
  • Doctrine of Liberal Interpretation: The provisions of the Constitution should be interpreted liberally and broadly instead of in a narrow sense.
  • Doctrine of Limitation of Stare Decisis: The Policy of the courts to stand by the precedent 
  • Doctrine of Eclipse: If the act violates the Fundamental Rights of citizens, the Fundamental Rights overshadow the act, making the act unenforceable. 
  • Doctrine of Prospective Over-Ruling: The Supreme Court can overrule its earlier judgment, but the impact will apply ​from the prospective effect and not retrospectively.
  • Doctrine of Harmonious Construction: Provisions of the Constitution shouldn’t be interpreted in isolation. Instead, it should be read together to ensure consistency and harmony, keeping in mind the intent of the Constitution makers.

Important Cases / Judicial History of Judicial Review of the Legislative Action

• AK Gopalan v. State of Madras: The Constitution is supreme, and every statute has to conform to the constitutional requirements.   
• Minerva Mills Case: The Judicial Review is the Basic Feature of the Indian Constitution.  
• Indira Gandhi v. Raj Narain (1975): Ordinary Laws aren’t subject to the Doctrine of Basic Structure, which is applied only to determine the validity of the Constitutional Amendment.
• IR Coelho v. State of Tamil Nadu (2007): All Constitutional Amendments made on or after 24th April 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of Basic Features of the constitution enshrined in Article 14, 19 and 21. 

Judicial Review of Administrative Action

In this case, the Court scrutinizes the entire Administrative Action and sees how it was reached. If the Court finds an Administrative Action arbitrary or irrational, it sets aside the entire action.  

1. Delhi Development Authority v. UEE Electrical Engineering Private Limited (2004): The court held that irrationality and procedural impropriety are grounds for judicial review of administrative action.   
2. Doctrine of Proportionality: If the Administrative Authority awards disproportionate punishment to the allegations, it remains open for judicial review.