(a) "In any democratic society, judicial review of administrative action is the soul of the system. Without it, democracy, and…

(a) Judicial review as the soul of democracy

Judicial review of administrative action is the power of courts to examine whether executive action conforms to the Constitution and the law. It is exercised mainly through the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto under Articles 32 and 226, and Dr. Ambedkar called Article 32 the 'heart and soul' of the Constitution. It is a basic-structure feature: Kesavananda Bharati v. State of Kerala (1973) held that the amending power cannot destroy the basic structure, and L. Chandra Kumar v. Union of India (1997) held that the power of judicial review under Articles 32 and 226 is part of it. The mechanism is that when authority is exercised, the court asks whether it is lawful, rational, procedurally fair and proportionate — the grounds of illegality, irrationality and procedural impropriety set out by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (1985), with proportionality added in India by Om Kumar v. Union of India (2001). Natural justice applies to administrative action (A.K. Kraipak v. Union of India, 1969), arbitrariness violates Article 14 (E.P. Royappa v. State of Tamil Nadu, 1974), and even 'subjective satisfaction' must rest on relevant material (Barium Chemicals v. Company Law Board, 1967). Wednesbury unreasonableness (1948) bars action no reasonable authority could take; proportionality requires suitable, necessary and balanced means. In Maneka Gandhi v. Union of India, impounding a passport was challenged under Articles 14, 19 and 21. The Court held that any procedure depriving life or personal liberty must be fair, just and reasonable, not arbitrary. This prevented executive arbitrariness through facially valid rules. In Vineet Narain v. Union of India, the Court strengthened CBI autonomy by placing it under the superintendence of the Central Vigilance Commission and securing a minimum tenure for its Director, protecting investigative independence from political interference. Thus judicial review sustains democracy by converting abstract rights into enforceable limits on power.

(b) Parliamentary legislation on State List matters

The Constitution is federal but contains exceptions. Article 249 authorises Parliament to legislate on a State List matter if the Rajya Sabha, by a two-thirds majority of members present and voting, resolves that it is necessary in the national interest; the resolution lasts up to one year and can be renewed, and the law ceases to have effect six months after the resolution lapses. Article 250 permits such legislation while a Proclamation of Emergency is in operation, and such laws lapse six months after the emergency ends; Article 353 similarly extends Union executive power. Article 252 allows Parliament to legislate on a State subject when the legislatures of two or more States pass resolutions asking it to; other States may adopt the law, which only Parliament can then amend or repeal — for example, the Wild Life (Protection) Act, 1972 and the Water (Prevention and Control of Pollution) Act, 1974. Article 253 empowers Parliament to make any law for implementing a treaty, agreement or convention or a decision of an international conference, even on State List subjects, as with the Environment (Protection) Act, 1986 following the Stockholm Conference. Under Article 356(1)(b), during President’s Rule, the powers of the State Legislature become exercisable by Parliament; Article 357 supplements this by allowing Parliament to delegate that law-making power to the President, subject to parliamentary control. Article 246(4) extends Parliament’s competence to Union Territories, enabling State List legislation there. In addition, the 42nd Amendment (1976) moved subjects such as education, forests and the protection of wild animals from the State List to the Concurrent List. These powers are conditional, temporary or purpose-bound and must respect federal balance. In S.R. Bommai v. Union of India, the Supreme Court held that Article 356 requires satisfactory material showing failure of constitutional machinery and is subject to judicial review, showing courts police federal exceptions.

(c) Legal aid and equal opportunity

Article 39A, inserted by the 42nd Amendment (1976), directs the State to secure that the legal system promotes justice on the basis of equal opportunity and to provide free legal aid so that no citizen is denied justice because of economic or other disabilities. It works with Article 14 (equality before law), Article 21 and Article 22(1) (right to consult a lawyer). The Supreme Court read free legal aid into Article 21 in M.H. Hoskot v. State of Maharashtra (1978) and Hussainara Khatoon v. State of Bihar (1979), and held in Khatri v. State of Bihar (1981) and Suk Das v. Union Territory of Arunachal Pradesh (1986) that the accused must be told of this right and that a trial without it is vitiated; Section 341 of the BNSS (formerly Section 304 CrPC) provides legal aid to the accused at State expense. The Legal Services Authorities Act, 1987 gives it statutory force. Sections 12 and 13 define entitled categories — members of Scheduled Castes and Scheduled Tribes, victims of trafficking, women, children, persons with disabilities, victims of disasters, industrial workmen, persons in custody and those below a prescribed income — and legal services include advice, drafting and representation. Sections 19 to 22 provide for Lok Adalats, which settle disputes speedily and cheaply; Permanent Lok Adalats for public utility services are established under Sections 22A to 22E, inserted by the 2002 Amendment. Under Section 21, a Lok Adalat award is deemed a decree of a civil court and is final, with no appeal. The Act creates NALSA (Section 3), State Legal Services Authorities (Section 6), District Legal Services Authorities (Section 9) and Taluk Legal Services Committees (Section 11A), making legal aid institutional rather than merely aspirational. Judicial review enforces this scheme: where a State fails to provide legal aid, a person can approach the High Court under Article 226 or the Supreme Court under Article 32. NALSA's Legal Aid Defence Counsel System (2022), which provides full-time public defenders in criminal cases, and the Supreme Court's continuing directions on undertrial prisoners show how Article 39A is being kept alive, though low awareness and uneven quality of legal aid remain concerns.