Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018
cherished freedoms in a constitutional democracy and upholding principles such as separation of
powers and rule of law. The Judiciary, through judicial review, prevents the decisions of other
branches from impinging on the constitutional values. The fundamental nature of the Constitution
is that of a limiting document, it curtails the powers of majoritarianism from hijacking the State.
The power of review is the shield which is placed in the hands of the most judiciaries of
constitutional democracies to enable the protection of the supreme document.
75) In Binoy Viswam v. Union of India & Ors.20, scope of judicial review of legislative Act was
described in the following manner:
76. Under the Constitution, Supreme Court as well as High Courts are vested with the
power of judicial review of not only administrative acts of the executive but legislative
enactments passed by the legislature as well. This power is given to the High Courts
under Article 226 of the Constitution and to the Supreme Court under Article 32 as
well as Article 136 of the Constitution. At the same time, the parameters on which the
power of judicial review of administrative act is to be undertaken are different from
the parameters on which validity of legislative enactment is to be examined. No
doubt, in exercises of its power of judicial review of legislative action, the Supreme
Court, or for that matter, the High Courts can declare law passed by Parliament or
the State Legislature as invalid. However, the power to strike down primary
legislation enacted by the Union or the State Legislatures is on limited grounds.
Courts can strike down legislation either on the basis that it falls foul of federal distribution of
powers or that it contravenes fundamental rights or other constitutional rights/provisions of the
Constitution of India. No doubt, since the Supreme Court and the High Courts are treated as the
ultimate arbiter in all matters involving interpretation of the Constitution, it is the courts which
have the final say on questions relating to rights and whether such a right is violated or not. The
basis of the aforesaid statement lies in 20 (2017) 7 SCC 59 Article 13(2) of the Constitution which
proscribes the State from making any law which takes away or abridges the right conferred by Part
III, enshrining fundamental rights. It categorically states that any law made in contravention
thereof, to the extent of the contravention, be void.
77. We can also take note of Article 372 of the Constitution at this stage which applies to
pre-constitutional laws. Article 372(1) reads as under:
372. Continuance in force of existing laws and their adaptation.(1) Notwithstanding the repeal by
this Constitution of the enactments referred to in Article 395 but subject to the other provisions of
this Constitution, all the laws in force in the territory of India immediately before the
commencement of this Constitution shall continue in force therein until altered or repealed or
amended by a competent legislature or other competent authority. In the context of judicial review
of legislation, this provision gives an indication that all laws enforced prior to the commencement of
the Constitution can be tested for compliance with the provisions of the Constitution by courts. Such
a power is recognised by this Court in Union of India v. SICOM Ltd. In that judgment, it was also
held that since the term laws, as per Article 372, includes common law the power of judicial review
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