Introduction

Judicial review is one of the methods, certainly not the only one, known in the world of law for preserving the sanctity, integrity, and effectiveness of the constitution. There are countries with written constitutions that have adopted different methods of constitutional review. In India, however, the framers preferred judicial review and had incorporated it into the Constitution. Even though the idea of judicial review, by an unelected judiciary, of legislative actions, in particular, did not have wide acceptability at the time of framing of the Constitution in India, the framers nonetheless provided for it. Under the scheme envisaged in the Constitution, the High Courts and the Supreme Court have been vested with the jurisdiction to test the validity of laws and to declare them void if found to be not in conformity with the provisions of the Constitution. This power has not been conferred on any other court or tribunal by the Constitution. It does not, however, explicitly and categorically prohibit conferment of such powers on other courts or tribunals. Per contra, it authorized the parliament, vide clause (3) of article 32, to empower ‘any other court’ to exercise, within its territorial jurisdiction, ‘all or any of the powers exercisable by the Supreme Court under clause (2)’. In this scenario, is it permissible for the parliament to empower, by law, such other courts and even tribunals to exercise the power of judicial review of legislations as well?

The said question is no longer res integra as it arose in many cases vis-à-vis tribunals established either under article 323A or under article 323B of the Constitution. In the first case, where the question arose, it was answered in the negative by the High Court of Karnataka but the same was overruled sub-silentio by the Supreme Court, which answered the question in the affirmative and upheld the tribunal's power to review legislations. How far empowering the tribunals, on whose worthiness doubts were expressed since beginning, to exercise the power of judicial review over legislative actions is in conformity with the overall constitutional scheme is the broad question the present chapter seeks to examine with specific focus on how did and why the Supreme Court upheld their powers to review legislations and the consequences thereof.