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JUDICIAL REVIEW AND THE INDIAN COURTS

CHINMOY ROY

Literally the notion of judicial review means the revision of the decree or sentence of an inferiorcourt by a superior court. Judicial review has a more technical significance in pubic law,particularly in countries having a written constitution which are founded on the concept oflimited government. Judicial review in this case means that Courts of law have the power oftesting the validity of legislative as well as other governmental action with reference to theprovisions of the constitution.

The doctrine of judicial review has been originated and developed by the American SupremeCourt, although there is no express provision in the American Constitution for the judicialreview. In Marbury v. Madison, the Supreme Court made it clear that it had the power of judicialreview. Chief Justice George Marshall said,“ Certainly all those who have framed the writtenConstitution contemplate them as forming the fundamental and paramount law of the nations,and consequently, the theory of every such Government must be that an act of the legislature,repugnant to the Constitution is void”.

There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between theConstitution and the Acts passed by the legislature, the Courts follow the Constitution anddeclare the acts to be unconstitutional and, therefore, void. The Courts declare void the acts ofthe legislature and the executive, if they are found in violation of the provisions of theConstitution.

Judicial Review In India

The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British.In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there candeclare a parliamentary enactment invalid. On the contrary every court is constrained to enforceevery provision" of the law of parliament.

Under the constitution of India parliament is not Supreme. Its powers are limited in the twoways. First, there is the division of powers between the union and the states. Parliament is

A student of B. A.(Hons.) L.L.B.(Hons.) at National University of Study and Research in Law, Ranchi, India.

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competent to pass laws only with respect to those subjects which are guaranteed to the citizensagainst every form of legislative encroachment.

Being the guardian of Fundamental Rights and the arbiter of constitutional conflicts between theunion and the states with respect to the division of powers between them, the Supreme Courtstands in a unique position where from it is competent to exercise the power of reviewinglegislative enactments both of parliament and the state legislatures.

This is what makes the court a powerful instrument of judicial review under the constitution. AsDr. M.P. Jain has rightly observed: "The doctrine of judicial review is thus firmly rooted inIndia, and has the explicit sanction of the constitution."

In the framework of a constitution which guarantees individual Fundamental Rights, dividespower between the union and the states and clearly defines and delimits the powers and functionsof every organ of the state including the parliament, judiciary plays a very important role undertheir powers of judicial review.

The power of judicial review of legislation is given to the judiciary both by the political theoryand text of the constitution. There are several specific provisions in the Indian constitution,judicial review of legislation such as Act 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly.Article 13 specifically declares that any law which contravenes any of the provision of the part ofFundamental Rights shall be void. Even our Supreme Court has observed, even without thespecific provisions in Article 13.

The court would have the power to declare any enactment which transgresses a FundamentalRight as invalid. The Supreme and high courts are constituted the protector and guarantor ofFundamental Rights under Articles 32 and 226. Articles 251 and 254 say that in case of inconsistent if between union and state laws, the state law shall be void.

Judicial review is a great weapon in the hands of judges. It comprises the power of a court tohold unconstitutional and unenforceable any law or order based upon such law or any otheraction by a public authority which is inconsistent or in conflict with the basic law of the land.In fact, the study of constitutional law may be described as a study of the doctrine of judicialreview in action The courts have power to strike down any law, if they believe it to beunconstitutional.

The judgment in I.R. Coelho v. the State of Tamil Nadu1 has answered this question byestablishing the pre-eminence of judicial review of each and every part of the Constitution. TheCourt has laid down a two-fold test: (a) whether an amendment or a law is violative of any of theFundamental Rights in Part III (b) if so, whether the violation found is destructive of the basic

1 (1999) 7 SCC 580

structure of the Constitution. If the court finds that the impugned enactment damages the basicstructure of the Constitution, it shall be declared void, notwithstanding the fictional immunitygiven to it by Article 31B.Thus, the basic structure doctrine requires the State to justify thedegree of invasion of Fundamental Rights in every given case; and this is where the court'spower of judicial review comes in.

Under our Constitution, judicial review can conveniently be classified under three heads2:

(1) Judicial review of Constitutional amendments.-This has been the subject-matter ofconsideration in various cases by the Supreme Court; of them worth mentioning are: ShankariPrasad case3, Sajjan Singh case4, Golak Nath case5, Kesavananda Bharati case6, Minerva Millscase7, Sanjeev Coke case8 and Indira Gandhi case9. The test of validity of Constitutionalamendments is conforming to the basic features of the Constitution.

(2) Judicial review of legislation of Parliament, State Legislatures as well as subordinatelegislation.-Judicial review in this category is in respect of legislative competence and violationof fundamental rights or any other Constitutional or legislative limitations;

(3) Judicial review of administrative action of the Union of India as well as the StateGovernments and authorities falling within the meaning of State. The researcher’s emphasis isin this direction.

It is necessary to distinguish between ‘judicial review’ and ‘judicial control’. The term judicialreview has a restrictive connotation as compared to the term judicial control. Judicial review is‘supervisory’, rather than ‘corrective’, in nature. Judicial review is denoted by the writ systemwhich functions in India under Arts. 32 and 226 of the Constitution. Judicial control, on the otherhand, is a broader term. It denotes a much broader concept and includes judicial review withinitself. Judicial control comprises of all methods through which a person can seek relief againstthe Administration through the medium of the courts, such as, appeal, writs, declaration,injunction, damages statutory remedies against the Administration.10

Therefore judicial review is a fundamental principle of law that every power must be exercisedwithin the four corners of law and within the legal limits. Exercise of administrative power is not

2 Justice Syed Shah Mohammed Quadri, Judicial Review of Adminstrative Action, (2001) 6 SCC (Jour) 1.3 Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.4 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.5 Golak Nath v. State of Punjab, AIR 1967 SC 1643.6 Kesavananda Bharati v. Union of India, AIR 1973 SC 1461

7 Minerva Mills v. Union of India, AIR 1980 SC 1789.8 Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147.9 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.10 M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the Subject containingcase-law reference (Indian & Foreign), 6th Ed., Wadhwa and Company Nagpur, New Delhi, 2007, p. 1779.

an exception to that basic rule. The doctrines by which those limits are ascertained and enforcedform the very marrow of administrative law. Unfettered discretion cannot exist where the rule oflaw reigns. Again, all power is capable of abuse, and that the power to prevent the abuse is theacid test of effective judicial review.11

Under the traditional theory, courts of law used to control existence and extend of prerogativepower but not the manner of exercise thereof. That position was, however, considerably modifiedafter the decision in Council of Civil Service Unions v. Minister for Civil Service12, wherein itwas emphasized that the reviewability of discretionary power must depend upon the subject-matter and not upon its source. The extent and degree of judicial review and justifiable area mayvary from case to case.13

At the same time, however, the power of judicial review is not unqualified or unlimited. If thecourts were to assume jurisdiction to review administrative acts which are ‘unfair’ in theiropinion (on merits), the courts would assume jurisdiction to do the very thing which is to be doneby administration. If judicial review were to trespass on the merits of the exercise ofadministrative power, it would put its own legitimacy at risk.

It is submitted that the following observations of Frankfurter, I. in Trop v. Dulles14, lay downcorrect legal position:

“All power is, in Madison’s Phrase ‘of an encroaching nature’. Judicial Power is not immuneagainst this human weakness. It also must be on guard against encroaching beyond its properbounds, and not the less so since the only restraint upon it is self restraint.”

Cases On Judicial Review In India

The basic function of the courts is to adjudicate disputed between individuals and the state,between the states and the union and while so adjudicating, the courts may be required tointerpret the provisions of the constitution and the laws, and the interpretation given by theSupreme Court becomes the law honoured by all courts of the land. There is no appeal againstthe judgement of the Supreme Court.

In Shankari Prasad vs. Union of India15 the first Amendment Act of 1951 was challengedbefore the Supreme Court on the ground that the said Act abridged the right to property and that

11 Wade, Administrative Law, (1994), pp. 39-41.12 (1984) 3 All ER 935: (1984) 3 WLR 1174: (1985) AC 374.13 Craig, Administrative Law, (1993), p. 291.14 (1985) 35 US 86.15 AIR 1951 SC 458

it could not be done as there was a restriction on the amendment of Fundamental Rights underArticle 13 (2).

The Supreme Court rejected the contention and unanimously held. "The terms of Article 368 areperfectly general and empower parliament to amend the constitution without any exceptionwhatever.

In the context of Article 13 law must be taken to mean rules or regulations made in exercise ofordinary legislative power and amendments to the constitution made in exercise of constituentpower, with the result that Article 13 (2) does not affect amendments made under Article 368."

In Sajan Singh's case16, the corupetence of parliament to enact 17th amendment was challengedbefore the constitution. Bench comprising of five judges on the ground that it violated theFundamental Rights under Article 31 (A).

Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when article 368confers on parliament the right to amend the constitution the power in question can be exercisedover all the provisions of the constitution, it would be unreason about to hold that the word law'in article 13 (2) takes in amendment Acts passed under article 368.

Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, andcould not be struck down by the application of article 13 (2).

The historic case of Golak Nath vs. The state of Punjab17 was heard by a special bench of 11judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged.

The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared thatparliament under article 368 has no power to take away or abridge the Fundamental Rightscontained in chapter II of the constitution the court observed.

(1) Article 368 only provides a procedure to be followed regarding amendment of theconstitution.

(2) Article 368 does not contain the actual power to amend the constitution.

(3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97of the union list.

(4) The expression 'law' as defined in Article 13 (3) includes not only the law made by theparliament in exercise of its ordinary legislative power but also an amendment of the constitutionmade in exercise of its constitution power. ,

16 1960 A.C. 16717 AIR 1967 SC 1643

(5) The amendment of the constitution being a law within the meaning of Article 13 (3) would bevoid under Article 13 (2) of it takes away or abridges the rights conferred by part III of theconstitution.

(6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenthAmendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void underArticle 13 (2) of the constitution.

(7) Parliament will have no power from the days of the decision to amend any of the provisionsof part III of the constitution so as to take away or abridge the Fundamental Rights enshrinedthere in.

The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in theFundamental Rights case. The Govt. of India claimed that it had the right as a matter of law tochange or destroy the entire fabric of the constitution through the instrumentality of parliament'samending power.

In Minerva Mills case18 the Supreme Court by a majority decision has trunk down section 4 ofthe 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24,19 and 31 of part III of the constitution, on the ground that part III and part IV of the constitutionare equally important and absolute primacy of one over the other is not permissible as that woulddisturb the harmony of the constitution.

The Supreme Court was convinced that anything that destroys the balance between the two partwill IpsoTacto destroy an essential element of the basic structure of our constitution.

Extent Of Judicial Review In India

From 1950 to 1975, the Indian Supreme Court ruled that more than one hundred federal and statecase Laws, constituted unconstitutional. The judiciary in the constitutional system, made a veryimportant position. Indian Supreme court on a series of allegations of violation of basic humanrights under the Constitution of India conducted a judicial review of cases. The Supreme Court'sposition is that any attempt to amend the Constitution related to impact of civil rights legislationor regulations are subject to subject to judicial review. India has also restricted judicial review ofexecutive and legislative powers to play a role. Judicial review of legislation from the earlyreview extends to all acts of government or administration. It can be said that in addition tospecific case, the Court exercise their restraint of judicial power, judicial review has almost noborders.

18 (1980) 3 SCC 625

Judicial review of political issues: In the early practice of judicial review, Supreme Court ofIndia was that if the case involved political issues, does not apply to judicial review. But thenthis position has changed slowly, in Keshavananda Bharathi case, the Court noted that "involvestampering with the Constitution judicial review of cases may involve political issues, but onlythe court has the power to judge cases. interpret the Constitution's powers should be attributed tothe State jurisdiction ".The Court's position in the later case in a series of further specific, as inS. R. Bommai case, the court decision that "The state Governor, the President formed the basisof his political views may be based on judgments, it is not appropriate for judicial review.If Justice will fall into a complex political disputes, which the court should be avoided. So , thecourt can not forbid the President to exercise the powers conferred on him by the Constitution,unless the evil abuse of power, but the court also noted that" judicial review although it can notreview the President's subjective judgments, but the president may review the basis on which tomake decisions.” From these precedents it can be seen that the Indian courts in dealing with thebasic legal and political position of the judiciary in finding significant matters involving politicsshould be careful to play its role of judicial review, and some restraint in handling cases, to avoiduse of judicial jeopardize the constitutional review powers the legislative and executive powers,but the judiciary but also to minimize the abuse of presidential powers. judicial review andsupervision should be ultra vires the right balance.

The basic principles of judicial review of constitutional status: In 1973, the Supreme Court inthe landmark Keshavananda Bharathi v. State of Kerala19 case presented the basic principles ofjudicial review. Legislature can amend the constitution, but cannot change the basic principles ofthe Constitution. If the violation of basic constitutional principles, constitutes unconstitutional isgenerally believed that the basic principles of the Constitution of India has the following fivebasic points: the supremacy of the Constitution, republican and democratic form of government,secular constitution, legislative, administrative and judicial separation of powers and federalism.These basic principles are throughout the Preamble to the Constitution of India and the entireframework of the Constitution. The Constitution is built on the basic principles citizens on thebasis of freedom and dignity, the Indian Constitution, the Law may not deprive citizens of anyform of freedom and dignity. The basic principle of the Constitution is only a matter of principle,not exhaustive revision of the constitution limits the power of all cases. In the subsequent seriesof cases, the court of judicial review is further recognized as one of the basic principles of theConstitution. The Court in some cases held that judicial review is a constitutional fundamentaland essential feature. If the judicial review is absolutely deprived of the Constitution had novitality. The Court further pointed out that if the Supreme Court ruled out legislation enjoy theconstitutional right to judicial review, and with no other alternative mechanisms for judicialreview is in violation of the basic principles of the Constitution, the Congress, the legislationgoes beyond the scope of legislative power. In 1997, L. Chaiadra Kumar V Union of India20

19 AIR 1973 SC 146120 (1997) 3SCC261

case, the Constitutional Court more clearly that "the Constitution and Articles 32 &226 weregranted to the Supreme Court and High Court judicial review of existing legislation is aconstitutional right to an integral and essential element judicial review itself constitutes one ofthe basic principles of the Constitution. " Indian Supreme Court precedent established by judicialreview the basic principles of the Constitution, this Constitution and the rule of law in India'srole can not be ignored, for enhancing the legislative and executive powers of judicial checks andbalances play an important role. But given the absolute power of judicial review, in fact distortedthe balance of power theory, to some extent, led to the expansion of judicial review and abuse ofpower.

Judicial activism the expansion of judicial review: After 80 years of the 20th century, publicdemand for government administration in strict accordance with the Constitution and laws,hoping to promote administrative reform through judicial growing louder and louder, thejudiciary is also required in response to the public judicial activism began to take position. In thesubsequent case of Menaka Gandhi21, the Supreme Court to promote the implementation of theConstitution in terms of protection of citizens basic human rights, and to seek India's laws in linewith the global trend of legal protection of basic human rights. The court of human rightsprotection thanks to a series of successful litigation procedural law reform, as introduced in theprocedural law of social activities on litigation, public interest litigation and other new design ofthe system, so that vulnerable groups in society can more easily enter the judicial process. Indiancourt has also sought, through judicial interpretation of constitutional provisions to achieve itsgoals. 80 years in the 20th century and early 90s, the Indian court would change its traditionallaw enforcement agencies as a simple nature of many of its political decision to the Indiansociety, the enormous social and economic change. While judicial activism has played an activecourt supervision of administrative and legislative powers, the role of the effective exercise ofjudicial power, to some extent contributed to the improvement of the rule of law in India. But onthe other hand, the Supreme Court's new role of judicial activism also has been criticized, andmany Critics accused him of breach of the principle of separation of powers, especially theSupreme Court administrative action policies and guidelines established by the widely criticized,is considered by more powers of the executive and legislative areas. As a result, limit the powerof judicial review has become India's new task of constitutional law.

A Comparison Of Judicial Review In India With That Of U.S.A

The scope of Judicial Review in India is somewhat circumscribed as compared to that in theU.S.A.In India the fundamental rights are not so broadly corded as in the U.S.A and limitationsthere on have been stated in the constitution itself and this task has not been left to the courts.The constitution makers adopted this strategy as they felt that the courts might find it difficult to

21 AIR 1978 SC 597

work act the limitations on the fundamental rights and the same better be laid down in theconstitution itself. The constitution makers also felt that the Judiciary should not be raised at thelevel of 'Super legislature', whatever the justification for the methods logy adopted by theconstitution makers, the inevitable result of this has been to restrict the range of judicial reviewin India.

It must, however, be conceded that the American Supreme Court has consumed its power tointerpret the constitution liberally and has made so thorough a use of the due process of lawclause that it has become more than a more interpreter of law. It has, in fact come to occupy theposition of a maker of law and has been correctly described as a 'third chamber of the legislature,indeed, as a super legislature. Of course, the U.S. Supreme Court has assumed this position; ithas not been specifically conferred upon it by the constitution.

Like the American Supreme Court, the Supreme Court of India enjoys the power of JudicialReview' and this power has been specifically recognized by the constitution. However itsauthority in relation to 'judicial review of legislation is more restricted than that of the AmericanSupreme Court.

The framers of the Indian constitution took good care not to embody the due process of lawclause in the constitution. On the contrary, the Indian constitution refers it to 'procedureestablished by law'. It can invalidate laws if they violate provisions of the constitution but not onthe ground that they are bad laws. In other words the Indian Judiciary including the SupremeCourt is not a Third Chamber claiming the power to sit in judgement on the policy embodied inthe legislation passed by the legislature.

Five Restrictions On The Right Of Judicial Review

First, the right to limit judicial review of administrative Justice in order to avoid excessiveintervention and legislation on the Indian courts take the position of judicial activism and judicialreview of horizontal expansion. It has been holding a respected and skeptical attitude toward amixed complex. They are respected because judicial review of the creative interpretation of theConstitution can play on the legislative and executive powers of the strong regulatory role, but atthe same time, people have the right to judicial review of legislation and may be beyond thedoubts about the executive power. Second, people think, because of the judicial review ofconstitutional issues often involve significant, if not adequately regulate, the subjective elementof judicial review may result in significant social and political consequences.

As pointed out by the Indian Supreme Court Justice Dwivedi, “The complex mixture of politicalactivity and political values of many of the basic social choice, the court cannot assume thisfunction. The court in the absence of any clear evidence of constitutional standards and adequateconditions, the basic value of the trade-off is necessarily subjective of the court's decision andthus inevitably subject to personal preferences of judges. The judge's subjectivity and thus

reduce the legal certainty, and certainty the nature of the rule of law is one of the elements. Infact, if a little of the Supreme Court in the basic issue of constitutional ruling, the judge can befound in a number of different basic constitutional issues, such as the constitutional right ofCongress, federal relations, presidential powers such as the above there are different views andopinions.”

Restrictions on judicial review of the content. India's traditional limits on judicial review forconstitutional and procedural law largely limits procedural restrictions on the two mainprinciples: First, the principle of delay slack (Doctrine of Laches), that is lost due to slack rights,the court will not grant relief, the second is the principle of res judicata , that the Court's finalruling is made, regardless of the outcome of the verdict, the parties and the courts are bound toaccept the verdict content, the parties shall not in respect of the contents of judgments re- makethe same claim, the court shall not be made in respect of the contents of judgments conflictingjudgments. India, although the court proceedings began against the law other than theConstitution and for other restrictions on judicial review, but 90 years after the 20th century,social pressure or the introduction of appropriate doctrine of judicial self-restraint.

In terms of judicial review of the legislative, judicial self-restraint shown by the allegations of alegislation was unconstitutional, it should still be assumed to be constitutional. That a bill has notbeen formally ruled unconstitutional in before it is combined constitution, and the responsibilityto prove to the court of its constitutional commitment, the court shall prove that the bill clearlyviolates the basic principles of the Constitution. The court reviewed the constitutionality of theapplication filed from time to time to adopt a constitutional interpretation technology, which "isreview the constitutionality of provisions of the Act an interpretation, while the other constitutesan unconstitutional interpretation, the court tends to the former explanation but sometimes thisinterpretation also depends on the judge's personal views and values.

In a judicial review of administrative action, administrative action assumes the constitutionalityof the case is weaker than legislation. But clearly the administration in the Legislative left roomfor administrative discretion, the court shall also be taken to judicial restraint doctrine attitude. Inother words, the Court of Administrative Discretion cannot challenge the constitutionality, unlessthere is abuse of the executive branch or the Chief Administrative Discretion is not a situation.

Conclusion

With the right public awareness in India, every major government action on judicial review is ofthe trend of legal development in India. Some executive branches of government have begun totake the initiative to bring judicial review of some controversial issues in order to reducedecision-making responsibilities. From India, the development of judicial review and the basicframework can draw the following conclusions. First, India is an important judicial review of theconstitutional system in Indian capitalism. The rule of law plays a positive role in safeguardingthe constitutional system. Secondly, the main function of judicial review of the system is tobalance the legislative and administrative constraints, and in essence is the interests of all sectors.The purpose of judicial review from the Indian courts is to establish the constitutional principleof judicial review, as well as the expansion of judicial review. The judicial review ofconstitutional governance is to be a useful tool to play its effective role. Courts need to balancedifferent social interests, to take appropriate activism or restraint doctrine in the judicial reviewand to consider many factors like the laws of the policies and programs, the discretion granted tothe target and the nature and scope of the discretionary decisions that may affect the rights andinterests of the consequences. Finally, the development of judicial review in India is inheritedfrom the British colonial era and its constitutional system and the product of common lawjudicial system is the capitalist nature of the constitutional mechanism.