Background of the Indian

Constitution

The Government of India Act, 1935, which is considered to be the foundation of

the Constitution of India, framed by the British Parliament, did not contain any

provision for judicial review although there was a Federal Court and High Court

established under it. Part IX of the Act deals with the ‘Judicature’ and Chapter 1

deals with the ‘Federal Court’. Chapter 2 deals with the High Court in British India.

Although section 204 grants original jurisdiction to the Federal Court, the said

original and exclusive jurisdiction was confined to disputes between units of the

Federation or between the Federation and any of the units. It did not provide an

authority to entertain suits brought by the subject against the administration. The

absence of this most important power, contained in most of the modern constitutions,

in the 1935 Act had presumably been due to the influence of the unwritten

constitution of England that made it reluctant to admit such a supervisory power of

judicial review for the courts in one of her colonies.

The Constitution of India contains specific provisions under Articles 32, 226 and

227 enabling the Supreme Court and the High Courts to grant any writs named

therein for the enforcement of the fundamental rights or for any other purpose. Indian

Constitution is one of the few constitutions in the world that had given the power of

judicial review to the higher courts by making specific provisions with so much of

clarity and in unambiguous and express terms. Even in the written Constitution of the

United States, where the power of judicial review of both executive and legislative

acts had grown to disproportionate dimensions, there is no express provision for the

power of judicial review of the higher courts. When compared to England and the

United States, in India the growth and development of judicial review as a

formidable constitutional doctrine was a natural consequence flowing from the

written Constitution with specific provisions of judicial review. In India the doctrine

has been accepted and approved as one of the basic features of the Constitution1

1 Keshananda Bharti v. State ofKera1a, A.l.R. 1973 S.C. 461.

How far the framers of the Constitution have envisaged the scope and ambit of this

power, when they engraved it in the Constitution, is not evident from the discussions

and debate in the Constituent Assembly. But, it has to be noted that the developments

on this line in the public law in U.S., that has already established the institution of

judicial review as a powerful tool to control maladministration and abuse of public

power, must not have missed the attention of our constitution makers, who had

scanned the other constitutions of the world to follow and included their better

features in the Indian Constitution. Therefore, it is hard to believe that the Indian

constitution makers did not envisage the possible future conflicts between judiciary

and the other two limbs of the State in a growing pluralistic democracy like India.

It is surprising that when some other Articles which are comparatively of lesser

importance had attracted elaborate debates in the Constituent Assembly, Articles 226,

227 and 32 have drawn only very little attention in the debates despite their vast

potential for judicial supremacy over the other two organs of the state in future. It

may be presumed that the framers of the constitution have not either applied their

mind so deep as to forecast possible or eventual conflicts between the judiciary and

the other two organs of the state, or that the constitution makers themselves wanted

and envisaged the judiciary to be the final arbiter of all disputes of whatever nature

arising in the Republic. It is worthwhile to note the observation of the Parliamentary

Joint Committee in their report in this connection. They observed

“The success of a constitution depends, indeed far more upon the manner and sprit in which

it is worked than upon its formal provisions. It is impossible to foresee, so strange and

perplexing are the conditions of the problem, the exact lines which constitutional

developments will eventually follow, and it is, therefore, more desirable that those upon

whom responsibility will rest should have all reasonable scope for working out there own

salvation by the method of trial and error”2

The Concept in the Constituent

Assembly

2 Joint Committee on Indian Constitutional Reforms, Vol. l (Part l), Report, Para 22. c.f C.L. Anand, Constitutional Law and History of Government oflndia, University Book Agency, Allahabad (1990), p. XXXIV

According to Dr B.R. Ambedkar, the founder of the Indian Constitution, the provisions for

judicial review and the writ jurisdiction, which guard the citizens against infringement of

their fundamental rights, is the soul and heart of the Constitution3. The moving force behind

the Indian independent struggle was, like in many other countries, an urge for evolving a

constitutional bill of rights. This had finally crystallized into the fundamental rights enshrined

in Chapter III of the Constitution and their protective shield provided under Articles 32 and

226 of the Constitution. These extraordinary prerogative remedies are available on the

original side of the Supreme Court and High Courts. Considering the importance of these

provisions and their impact on personal liberty and other valuable rights available to the

citizens, there has been a forceful argument for extending the original jurisdiction of judicial

review to the subordinate courts also even during the Constituent Assembly debates4.

Politically, the strong stand of the Indian National Congress for adopting the civil liberty

rights in the form of a constitutional bill of rights must have persuaded the Constituent

Assembly finally to incorporate specific provisions in the nature of judicial remedies in

theConstitution for protecting the fundamental and other valuable rights of the citizen5.

The whole trend of the debate on this aspect in the Constituent Assembly was in favour of

the British system of writ jurisdiction and judicial review. This must have happened due to

lndia’s long standing with England and the resultant colonial heritage, due to the influence of

English education on the national leadership, including Nehru and Ambedkar, and also due to

the sophistication of the English principle of rule of law. Owing to India’s association with

the Soviet Union and due to Nehru’s commitment to democratic socialism, India Wanted to

bring about large socio-economic reforms in the form of land reforms and other radical steps.

Therefore, Nehru and some other members of the Constituent Assembly naturally wanted to

safeguard the progressive and egalitarian constitution from a possible negative judicial

attitude that might prevent legitimate socio-economic reforms6

It appears the constitution makers did not want the American model of judicial review be

transplanted in India, under which the court could examine whether a law was just or fair7.

Instead, they preferred the British model of judicial review which only seek to ascertain

whether the legislature and the executive act within their realm and limits and make sure that

3 Constituent Assembly Debates, p. 953.4 Argument of Mr. Naziruddin Ahmed, 7 Constituent Assembly Debates, p. 9315 The Nehru Committee which gave its report on the fundamental rights in 1928,6 ame, S.P., Judicial Actii-'i.¢m in India, Oxford University Press, New Delhi (2002), p.36.7 1d., at p.37

they acted according to law. While speaking on the rights to property, Prime Minister Nehru

dealt with the role of judiciary thus.8

“Within limits no judge and no Supreme Court can make itself a third chamber. No Supreme

Court and no judiciary can stand in judgment over the sovereign will of Parliament

representing the will of the entire community. If we go wronghere and there it can point it

out, but in the ultimate analysis, where the future of the community is concerned, no judiciary

can come in the way. And if it comes in the way, ultimately the whole Constitution is a

creature of Parliament.”

The above statement clearly shows that India wanted to follow the British model of judicial

review with its restricted power of review of legislative actions and legislations. Every effort

was taken to make the Constitution specific and detailed so that the courts could not impose

further restriction on the legislature. Nehru made it clear that if despite such meticulous care

taken in avoiding invalidation of such property legislations by courts, the court did intervene;

they could get the Constitution amended, because the Constitution was the creature of

Parliament9. While making this assertion, it was doubtful whether Nehru and others in the

Constituent Assembly had foreseen the gradual empowerment of the Indian judiciary under

the specific constitutional provisions of judicial review by interpreting the said power as a

basic structure of the Constitution and, therefore, beyond the scope of amendment, and later

extending its arms even to Article 34 B of the Constitution and the IXth Schedule, which is

constitutionally insulated from judicial review.

Though, as discussed above, Nehru was against a bigger role being given to the judiciary, he

did envisage an appropriate limited role to it laying down, probably indirectly, the foundation

for the logic of the future development of the doctrine of judicial review in modern India.

Speaking in the Constituent Assembly Shri. Nehru 0pined10

“But we must respect the judiciary, the Supreme Court and the other High Courts in the land.

As wise people, their duty it is to see that in a moment of passion, in a moment of excitement,

even the representatives of the people do not go wrong; they might. In the detached

atmosphere of the courts, they should see to it that nothing is done that might be against the

Constitution, that might be against the good of the country and against the community in the

larger sense of the term. Therefore, if such a thing occurs, they can function in the nature of a 8 9 Constituent Assembly Debates, p. 11979 9 Supra, n. 6 atp.37.10 9 Constituent Assembly Debates, pp. 1197-9s.

third house, as a kind of third house of correction. So, it is important that with this limitation

the judiciary should function.”

Dr Ambedkar had, on the contrary, a definite vision about the pro—active role of the

judiciary. This is evident from his categorical statement on Article 32 which runs :

“If I was asked to name any particular article in this Constitution as the most important- an

article without which this Constitution would be a nu11ity— I could not refer to any other

article except this one. It is the very soul of the Constitution and the very heart of it and I am

glad that the House has realized its importance.”

The above stand of Dr. Ambedkar, it appears to be influenced by the historical fact that Dr

Ambedkar’s fight was not only against foreign rule but also against the tyranny of the caste

Hindus and social injustice that the pre-British indigenous regimes had perpetratedlz. One

may think that he was bound to be skeptical of the legislative supremacy and wanted a

counter majoritarian safeguard such as judicial review11.

Dr. Ambedkar was more fascinated by the British system of constitutional legal remedies in

the form of specific prerogative writs and found them to be more efficacious and inalienable

if they are given constitutional coverage and protection. Therefore, during his debate on draft

Article 25 (Article 32) he argued":

“These writs have been in existence in Great Britain for a number of years. Their nature and

the remedies that they provided are known to every lawyer and consequently we thought that

as it is impossible even for a man who has a most fertile imagination to invent something

new”

that it was hardly possible to improve upon the writs from the British position, Dr. Ambedkar

might not have contemplated the improvement and development that the Indian judiciary had

given to these traditional writs in the Indian context, which had taken judicial review in India

far ahead of its stand in England. He could not have thought that a generation of activist

judges would carry the doctrine to its fullest extent in future and would convert the writs the

most effective weapon in the judicial armory to be used to establish a people—oriented,

liberty-oriented jurisprudence in the public law in India. Many of the statements of Dr.

Ambedkar signify that he was an ardent supporter of the British system. He said12:

11 Ibid.12 1a., at pp. 953-954

“I prefer the British method of dealing with rights. The British method is a peculiar method,

a very real and a very sound method. British jurisprudence insists that there can be no right

unless the Constitution provides a remedy for it. It is the remedy that makes a right real. If

there is no remedy, there is no right at all, and I am, therefore, not prepared to burden the

Constitution with a number of pious declarations, which may sound as glittering generalities,

but, for which the Constitution makes no provision by way of a remedy. It is much better to be

limited in the scope of our rights and to make them real by enunciating remedies than to have

a lot of pious wishes embodied in the Constitution. I am very glad that this House has seen

that the remedies that we have provided constitute a fundamental part of this Constitution.”

However, on going through the debates in the Constituent Assembly, the unarticulated

apprehension of Dr. Ambedkar on the Writ jurisdiction and the power of judicial review

under the Constitution framed on the basis of the British system, one may be confused as to

whether it is apprehension expressed or faith reposed that has turned out to be true. But it is

only conceivable that a Constituent Assembly consisting of representatives of various

interests and groups of the society at that time could not precisely contemplate and perceive

all the future developments that may occur in the legal and judicial systems in the nascent

democracy. Constituent Assembly had been guided by the basic principles and concepts

which other democratic countries have proved to be successful by then. However, it could be

seen from the ocean of case law in India in this jurisdiction that the concept of the

Constituent Assembly on judicial review and writ jurisdiction still holds good and has proved

that there can be no right unless the Constitution provides aremedy.

Initial approach of the Indian

Judiciary

Although the scope of this study is confined to the jurisdictional parameters of judicial review

under Article 226 of the Constitution in respect of academic decisions, before entering the

subject it is essential to have a glance of the general approach and attitude of the Supreme

Court of India towards the constitutional power of judicial review and its development in the

first decade of the Indian Supreme Court. It was made clear by the Supreme Court at the

outset that Article 32, though itself a fundamental right that enables the Supreme Court to

issue writs, is subject to a limitation that it could be invoked only as against infringement of a

fundamental right, and not for any other right or for any other purpose 13 But, at the same

time, it was held14 that “Article 32 does not merely confer powers on the Supreme Court as

Article 226 does on the High Courts... as part of its general jurisdiction.

On the other hand Article 32 provides a guaranteed remedy for the enforcement of those

rights, and this remedial right is itself made a fundamental right by being included in Part

III... The jurisdiction thus conferred on the Supreme Court by Article 32 is not concurrent

with the one given to High Court under Article 226.” The restraint with which the Supreme

Court had approached the exercise of the writ jurisdiction by the High Courts and the

enthusiasm that the High Courts have shown in enjoying its newly installed constitutional

prerogative in the first decade of independence is evident from the following observation that

the Apex Court was constrained to makels:

13 A.K. Gopalan v. Stare 0fMadras, A.l.R. l95O S.C. 27 at p. 3214 Romesh Thappar v. The State 0fMadras, A.l.R. 1950 s.c. 124