Legal Limitation on the Power of Judiciary to Declare a Law Unconstitutional

Introduction

The power of the judiciary to declare a law unconstitutional is also known as judicial review. It is the power and duty of the courts to examine the validity of legislative and executive acts about the Constitution and to declare them void if they are found to be inconsistent with it. Judicial review is an essential feature of a constitutional democracy that aims to protect the fundamental rights of the citizens and to maintain the balance of power between the union and the states.

However, judicial review is not an unlimited or arbitrary power. It is subject to certain legal limitations that are derived from the Constitution itself, the doctrine of separation of powers, the principle of federalism, and the rule of law. These limitations are meant to preserve the legitimacy and authority of the judiciary as well as to respect the sovereignty of the parliament and the will of the people. In this article, we will discuss some of these limitations and illustrate them with examples from Indian constitutional jurisprudence.

Legal Limitations on Judicial Review

Constitutional Provisions

The first and foremost limitation of judicial review is the Constitution itself. The judiciary cannot declare a law unconstitutional unless it violates a specific provision of the Constitution. The constitution is the supreme law of the land and it defines and delimits the powers and functions of every organ of the state, including the parliament and the judiciary. Therefore, judicial review is not a power to override or amend the Constitution, but to uphold and enforce it.

For example, Article 13 of the Indian Constitution declares that any law that infringes upon the fundamental rights guaranteed in Part III of the Constitution shall be void to the extent of such infringement. Therefore, if a law violates any fundamental right, such as freedom of speech, equality before the law, or right to life, the judiciary can strike it down as unconstitutional. However, if a law does not violate any fundamental right, but only affects some other constitutional or legal right, such as property rights, citizenship rights, or contractual rights, then the judiciary cannot declare it unconstitutional on that ground alone.

Another example is Article 368 of the Indian Constitution, which empowers the parliament to amend any part of the constitution by following a special procedure. However, this power is not absolute, as it is subject to two limitations: (a) it cannot alter or destroy the basic structure or essential features of the Constitution; and (b) it cannot abridge or take away any fundamental right. Therefore, if a constitutional amendment violates either of these limitations, then the judiciary can declare it unconstitutional.

Separation of Powers

The second limitation of judicial review is the doctrine of separation of powers. This doctrine implies that each branch of government - legislative, executive, and judicial - has its own distinct sphere of authority and responsibility and that none should encroach upon or interfere with another’s functions. The doctrine aims to prevent concentration and abuse of power by any one branch and to ensure checks and balances among them.

Therefore, judicial review is not a power to legislate or govern, but to interpret and apply the law. The judiciary cannot substitute its own policy preferences or value judgments for those of the parliament or the executive. The judiciary cannot declare a law unconstitutional merely because it considers it unreasonable, unjust, or unwise. The judiciary can only examine whether a law is consistent with the Constitution and other laws.

For example, in S.R. Bommai v. Union of India, the Supreme Court held that judicial review of presidential proclamation under Article 356 (imposing president’s rule in a state) is limited to examining whether there was any material or relevant ground for invoking such power. The court cannot go into the merits or demerits of such action or question its political wisdom or expediency.

Another example is Keshavananda Bharati v. State of Kerala, where the Supreme Court held that judicial review of constitutional amendments is limited to examining whether they violate or alter the basic structure or essential features of the constitution. The court cannot go into the policy objectives or social benefits of such amendments or question their political necessity or desirability.

Federalism

The third limitation of judicial review is the principle of federalism. This principle implies that India is a union of states that have their own autonomy and identity within the framework of the constitution. The constitution distributes legislative powers between the union and the states through three lists: union list, state list, and concurrent list. The union parliament can make laws on the subjects in the union list and the concurrent list, while the state legislatures can make laws on the subjects in the state list and the concurrent list. However, in case of a conflict between a union law and a state law on the same subject in the concurrent list, the union law prevails.

Therefore, judicial review is not a power to favour or disfavour any level of government, but to maintain the balance of power and harmony between them. The judiciary cannot declare a law unconstitutional merely because it affects the interests or rights of a state or a region. The judiciary can only examine whether a law is within the competence and scope of the legislature that enacted it and whether it is consistent with the constitutional scheme of federalism.

For example, in State of West Bengal v. Union of India, the Supreme Court upheld the validity of the Coal Bearing Areas (Acquisition and Development) Act, 1957, which empowered the union government to acquire coal-bearing lands in any state for public purposes. The court rejected the argument of the state of West Bengal that the act violated its right to property and its legislative power over land and minerals. The court held that the act was within the legislative competence of the union parliament under Entry 54 of List I (regulation of mines and mineral development) and that it did not infringe upon the federal structure of the constitution.

Another example is State of Karnataka v. Union of India, where the Supreme Court upheld the validity of the Cauvery Water Disputes Tribunal Award, which allocated water from the Cauvery River among four states: Karnataka, Tamil Nadu, Kerala, and Pondicherry. The court rejected the argument of Karnataka that the award violated its right to water and its legislative power over-irrigation and water supply. The court held that the award was within the constitutional authority of the tribunal under Article 262 (adjudication of inter-state water disputes) and that it did not disturb the federal equilibrium of the constitution.

Rule of Law

The fourth limitation of judicial review is the rule of law. This rule implies that India is a constitutional democracy that is governed by laws and not by men. The constitution is the supreme law of the land and it binds all authorities and individuals within its territory. The Constitution also guarantees certain fundamental rights and freedoms to all citizens and imposes certain duties and obligations on them. The constitution also establishes an independent and impartial judiciary as the guardian and interpreter of the constitution and other laws.

Therefore, judicial review is not a power to act arbitrarily or capriciously but to act fairly and reasonably. The judiciary cannot declare a law unconstitutional without giving proper reasons and grounds for its decision. The judiciary cannot declare a law unconstitutional without following due process of law and natural justice. The judiciary cannot declare a law unconstitutional without respecting the rights and interests of all parties involved.

For example, in Maneka Gandhi v. Union of India, the Supreme Court held that judicial review of executive action under Article 21 (right to life and personal liberty) is not confined to examining whether such action is authorized by law, but also whether such law is fair, just, and reasonable. The court also held that judicial review of executive action under Article 21 requires allowing being heard and making representations against such action.

Another example is Indira Nehru Gandhi v. Raj Narain, where the Supreme Court held that judicial review of election disputes under Article 329 (bar to interference by courts in electoral matters) is not excluded by any constitutional amendment or statute, but only by a valid exercise of constituent power. The court also held that judicial review of election disputes under Article 329 requires giving effect to the basic structure or essential features of the constitution, such as democracy, free and fair elections, rule of law, and separation of powers.

Conclusion

Judicial review is a vital power of the judiciary to uphold and enforce the Constitution and other laws. However, it is not an unlimited or arbitrary power. It is subject to certain legal limitations that are derived from the Constitution itself, the doctrine of separation of powers, the principle of federalism, and the rule of law. These limitations are meant to preserve the legitimacy and authority of the judiciary as well as to respect the sovereignty of the parliament and the will of the people.