Question

Judicial review in Indian Constitution is based on _____________.
A. procedure established by Law
B. due process of Law
C. rule of Law
D. Precedents and Conventions

Answer 1

Hint: The doctrine of judicial review originated and developed in the USA. It was propounded by John Marshall, the then chief justice of the American Supreme Court, for the first time in the famous case of Marbury V. Madison (1803).

Complete answer:
Judicial review is the power of the judiciary to examine the constitutionality of executive orders and legislative enactments of both the State and Central governments. If, after this examination, they are found to be violative of the Constitution, they can be declared as unconstitutional, illegal, and invalid (null and void) by the judiciary. The power of judicial review is itself conferred by the Constitution on the judiciary (both the Supreme Court as well as High Courts) in India. Furthermore, the judiciary has declared the power of judicial review as a basic feature of the constitution or an element of the basic structure of the Constitution. Hence, even by a constitutional amendment, the power of judicial review can not be excluded or curtailed.
On three grounds, the Constitutional validity of an executive order or a legislative enactment can be challenged in the Supreme Court or in the High Court. These are: firstly, it infringes the Fundamental Rights; secondly, it is outside the competence of the authority which has framed it, and lastly, it is repugnant to the constitutional provisions. This clearly shows how the scope of judicial review in India is narrower than what exists in the USA. This is because the American system provides for ‘due process of law’ whereas the Indian Constitution provides for ‘procedure established by law’. The basic difference between these two is that in ‘due process of law’ the reasonableness, policy implications, or suitability of law is kept in mind whereas in ‘procedure established by law’ the law is examined substantively without taking into account the reasonableness, policy implications, or suitability.

Thus, option (A) is correct.

Note: Though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, many provisions of several articles explicitly reveal this power of the Supreme Court and the High Court. These articles include articles 13, 32, 131, 132, 133, 134, and many more.