TABLE OF CONTENTS
ļ·Introduction
ļ·Meaning and Definition of Judicial Review
ļ·Scope of Judicial Review
ļ·Judicial Procedure for Judicial Review
ļ·Grounds of Challenge
ļ·Conclusion
ļ·Reference
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Judicial review under Indian Constitution, Summaries of Constitutional Law
This article deals with the concept nature and scope of judicial review in India
Typology: Summaries
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TABLE OF CONTENTS
ļ· Introduction
ļ· Meaning and Definition of Judicial Review
ļ· Scope of Judicial Review
ļ· Judicial Procedure for Judicial Review
ļ· Grounds of Challenge
ļ· Conclusion
ļ· Reference
JUDICIAL REVIEW OF LEGISLATIVE ACTIONS
Introduction
A strong, independent and impartial judiciary is a prerequisite of any democracy. By way of Judicial Review Honāble Supreme Court or High Court may determine the validity of any Legislative Act Suo moto or in a case established by any aggrieved person. It is the power of the Court to declare a Legislative Act ultra vires on the grounds of unconstitutionality. Judiciary in every country plays an important role in interpreting and enforcing the law and adjudicating dispute between one citizen and another and between a citizen and state. Where there is a written constitution, the courts, in additional to protecting the supremacy of the constitution by interpreting and enforcing its provisions and keep all authority within the limits of the constitution. Judicial review is a great institution and a fundamental pillar of the system of checks and balance without which no democracy of any repute can function. Judicial Review basically an aspect of judicial power of the state which is used by the courts to determine the validity of a rule of law or the action of any agency of the state. In the legal systems of modern democracies, it has very vast range of meanings. Judiciary has very vital role as the custodian of the constitutional values given to us by the makers of the Constitution. They try to reduce the losses being done by legislature and executives and at the same time, they try to provide every citizen what is promised by the Constitution. All this is possible because of the power of judicial review as provided to the Honāble Courts under Constitution. India is fortunate to have a constitution that enshrines fundamental rights and has appointed an independent judiciary as guardian of our constitution and protector of the citizenās liberties against the forces of authoritarianism. In a true form of democracy, the rule of a fearless independent and impartial judiciary is indispensable and cannot be over-emphasized. Judicial review of law is the result of two of the most fundamental features of the Constitution of India. The law is of two-tier system, first the constitution is the Supreme law which is valid only as long as they are in conformity with the constitution. Second is the separation of the legislative, executive and judicial powers of the State. Deriving its powers from the Constitution, the legislatures in India makes laws. There is a double limit on the validity of the law. Firstly, Legislatures should have the power to formulate them. Secondly, they should not conflict with the Constitution. They would be invalid to the extent of their antagonism with the Constitution.
Meaning and Definition of Judicial Review
The term āreviewā means the act of inspecting or examining something with a view to correcting or improving it. This meaning suggests that there are somethings that has already been done by somebody whose correction or improvement is envisaged in the process of āreviewā. The term āreviewā in the expression ājudicial reviewā refers to something that is carried out by a court of inquiry. Legality of action of any other agency. Thus, the power of the Judiciary to review and determine the validity of a law or order can be described as the
United State Constitutional thinkers said that it is judicial implementation alone that creates the provisions of the U.S. Constitution greater than just a maxim of political morality. Regarding the judicial review in United State, it is said: āThe power of judicial review is based on the idea that the constitution created a government of limited powers.ā In such condition under the Indian Constitution also the same. The principles of determining the constitutionality of statute has been stated in Gujarat Ambuja Cements Ltd. v. Union of India,^2 thus: - " 28. Having determined the parameters of the two legislative entries the principles for determining the constitutionality of a statute come into play. These principles may briefly be summarised thus: (a) The substance of the impugned Act must be looked at to determine whether it is in pith and substance within a particular entry whatever its ancillary effect may be [Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR at p. 65, A.S. Krishna v. State of Madras, State of Rajasthan v. G. Chawla, Katra Educational Society v. State of U.P., D.C. Johar & Sons (P) Ltd. v. STO and Kannan Devan Hills Produce v. State of Kerala]. (b) Where the encroachment is ostensibly ancillary but in truth beyond the competence of the enacting authority, the statute will be a colourable piece of legislation and constitutionally invalid. (A.S. Krishna v. State of Madras, A.B. Abdul Kadir v. State of Kerala, SCC at p. 232 and Federation of Hotel & Restaurant Assn. of India v. Union of India, SCC at p. 651). If the statute is legislatively competent the enquiry into the motive which persuaded Parliament or the State Legislature into passing the Act is irrelevant (Dharam Dutt v. Union of India). (c) Apart from passing the test of legislative competency, the Act must be otherwise legally valid and would also have to pass the test of constitutionality in the sense that it cannot be in violation of the provisions of the Constitution nor can it operate extraterritorially. (Poppatlal Shah v. State of Madras.) "
Judicial Procedure for Judicial Review
The framers of the Constitution of India inserted a specific provision under Article 32^3 of the Constitution of India to directly approach the Honāble Supreme Court regarding legislative acts relating to violation of Fundamental Rights. Art. 32 is the fundamental right and as per Dr. Ambedkar ā it is the soul of the constitution as without which there would be no meaning (^2) (2005) 4 SCC 214 (^3) 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
of inserting the other fundamental rights in the constitution ā. But no any specific provision has been made in the Constitution to go directly Supreme Court on unconstitutionality arising out of the infringement of constitutional mandate relating to distribution of powers or separation of powers or other constitutional restrictions which is equally important. If the case does not involve violation of fundamental rights guaranteed under Part III of the Indian Constitution, the aggrieved party has to first approach the High court under article 226^4 and only then go in appeal to the Apex Court if relief is not given by the Honāble High Court. Such disadvantages deserve to be rectified by a suitable provision in the Constitution to enable an aggrieved person to approach the Honāble Supreme Court directly in respect of unconstitutionality relating to distribution of powers or delegated legislation or other constitutional restriction. This prompt measure will awaken the conscience of the citizen in a more fruitful manner in protection of their rights. Thus, the Power of Judicial Review is enshrined in Art. 226 and 227^5 of the Constitution are regards to the High Courts and in regards to Supreme Court Art. 32 and 136^6 of the Constitution of India. (^4) 226. Power of High Courts to issue certain writs (1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including 1 [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), withoutā (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32. (^5) 227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction (2) Without prejudice to the generality of the foregoing provisions, the High Court may (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces (^6) 136 Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made
Irrationality applies to a decision that is so outrageous in defiance of reason that no sane person who applied his mind to the issues in the matter to be decided would have arrived at it. The Supreme Court of India in P.U.C.L. v. Union of India^8 examined the issue that the Court shall not interfere in a political question and matter of policy, unless it is necessary for judicial review. However, the court can intervene only on selective ground. The court further said that the government has to be bound by all available possibilities to avoid violence within the setting of the Indian Constitution. The legislature should apply its mind and lay down the criteria on the basis of which information should be disclosed. In the absence of such a law, the Court laid down some broad indications for disclosure to give effect to the right under Article 19(1)(a). Procedural Impropriety: Failure to follow procedures prescribed by law can invalidate a decision. Procedural impropriety covers two areas: failure to observe rules prescribed in statute; and failure to comply with the basic common law rule of natural justice. In Supreme Court Advocates on Record Association vs Union of India^9 , the National Judicial Appointments Commission Act was challenged on the ground that the NJAC violates judicial independence by creating a system in which the Chief Justice would no longer have primacy in judicial appointments and in which the judiciary would not have majority control over the NJAC in a system where the political influence of the executive and parliament would be dominant. Also, it gives parliament power to change and modify the judicial selection criteria and procedures, which violates judicial independence, separation of powers and the Rule of Law. The Supreme Court found the impugned Amendment and the struck down the Act as unconstitutional. The pre-existing policy of appointment of judges has been revived. However, the matter should be listed for consideration of the remaining issue of complaints as to the functioning of the policy already in existence. Rule Against Bias: The principles of natural justice laid down by the courts include two elements, namely Audi alteram partem (hear both the parties) and Nemo judex in causa sua (no person can be a judge in their own cause). show that actual bias existed; Mere presence or likelihood of bias will be sufficient. Doubt, the essence of justice lies in a fair trial. The rule against bias is strict: it is not necessary always that the person, performing his function/duty in a fair and just manner and to be very liberal in inspecting vehicles belonging to its own department. Legitimate Expectation : A Legitimate Expectation amounts to an expectation of receiving some benefit or privilege to which the person has no right. The doctrine of Legitimate Expectation has evolved to provide relief to people, when they are not able to justify their claims on the basis of law in the strict sense of the word, had to face civil consequences because their legitimate expectation has been violated. Two considerations apply to legitimate expectations. The first is where a person or group has been led to believe that a certain procedure will be followed. The second is where an individual or group relies on a policy or guidelines that previously governed an area of executive action. (^8) (2003) 4 SCC 399 (^9) AIR 2015 SC 5457
A three-judges bench headed by Chief Justice of India held that āthe MPās or MLAās are barred from re-contesting in election in the same tenure of the government if disqualification under Article 191 (2) of the Constitution of India r/w Tenth Schedule, and are liable to be disqualified as member of the Legislative Assemblyā. In Shrimath Balasaheb Patil v. Honāble Speaker, Karnataka Legislative Assembly^10 , The Honāble Supreme Court stated that the object of Anti-defection Law is to stop the lure of political offices or similar considerations and only limited power for judicial review is available against the Speaker of Lok Sabha/State legislature the decision is taken on the grounds of violation of constitutional mandate, mala fide intention, non-compliance with the rules of natural justice and perversity. Unreasonableness : Honāble Supreme Court of India in the case of R.P. Singh vs. State of Bihar^11 , elucidated that the expression āestablished practiceā refers to a regular, consistent, predictable & definite conduct, process or activity of the decision-making authority. The expectation should be valid i.e. logical, reasonable and valid. The concept of legitimate expectation will apply in cases where the decision taken by the authority is arbitrary, unreasonable & not in public interest. However, a change in policy may defeat the legitimate expectation. In such a case, the Court will not interfere in the decision even if the policy had been changed. In Anuradha Bhasin vs Union of India^12 , The UT of Jammu and Kashmir was directed by Honāble Apex Court to review all orders regarding suspension of the internet services immediately, all orders which are not in accordance with law should be cancelled. The Supreme Court stated that the Freedom of Speech and Expression and Freedom to practice any Profession or carry on any Trade, Business or Occupation over the medium of internet enjoys constitutional protection under Art. 19(1)(a) and Art.19(1)(g). Restriction on such fundamental rights must be in consonance to the mandate under Art. 19(2) and Art. 19(6) of the Constitution including, the test of Proportionality. Although the concept of Judicial Review is the basic structure of the Constitution of India, it is not justifiable in matters of policy. However, it is justified in policy matters provided the policy is arbitrary, unreasonable or violative of fundamental rights. The Supreme Court of India in Kerala Bar Hotels Association vs State of Kerala^13 , observed that the courts should be reluctant to venture into an evaluation of State policy which should be given reasonable time to pan out. If a policy turns to be unwise, oppressive or ill-advised, voters are quick to inform the government of its folly. The concept of Judicial Review is, thus, the intervention of judicial restraint on the legislative, executive and judicial function of the government. It has assumed a position of permanence through judicial decisions laid down since 1973. Thus, Judicial Review is the basic structure of the Constitution of India and any attempt to destroy or damage the basic structure is unconstitutional. (^10) 2019 SCC OnLine SC 1454 (^11) Appeal (civil) 4191 of 2004 (^12) 2020 SCC OnLine SC 25 (^13) AIR 1990 SC 913
executive instructions. which are not legal in nature or under any provision of the Constitution, are not ālawsā, and are not judicially enforceable. This is because such guidelines, by their very nature, do not fall into the category of direct, subordinate or subsidiary law. They have only an advisory role to play and non-compliance or deviation from them is necessarily and implicitly permissible if the circumstances of a particular fact or state of law so warrant. Judicial control takes place only where the deviation involves arbitrariness or discrimination or is so fundamental as to undermine a basic public objective which the guidelines and laws are issued. The Honāble Apex Court o India had observed that torture in any form is inhuman, degrading and offensive to human dignity and is an interference with the right to life and is prohibited by the Constitution, as no law authorizes and no law permits such type of act until some exceptional condition involves. In the case of Joseph Shine vs Union of India^17 , Honāble Apex Court of India hold that sec. 497 of Indian Penal Code is unconstitutional. Similarly, in Navjot Singh Johar vs Union of India^18 , the constitutional validity of sec. 377 was challenged before the Supreme Court of India on the ground that it violates fundamental right. Justice Chandrachud said that āI am not bound by societal morality, I am bound by constitutional morality and if the constitution protects the interests of a single citizen of India, I am bound to protect itā. Hence refer to Sec 377 of I.P.C was decriminalized as well as held to be unconstitutional. Sub-Delegated legislation : Delegated legislation is prohibited in law and can be used as a ground to challenge any legislation that has been sub-delegated or delegation has been made more than once. In State of Tamil Nadu v. P. Krishnamoorthy^19 , the court after adverting the relevant case law on the subject, generally laid down the parameters of judicial review of subordinate legislation as follows: - There is a presumption in favour of constitutionality or validity of a subordinate law and the burden is upon the one who attacks it, to show it invalid. It is also well recognised that a subordinate legislation can be challenged on any of the following grounds: (a) Lack of legislative capacity to make the subordinate law; (b) Violation of fundamental rights guaranteed under the Indian Constitution; (c) Contravention of any provision of the Indian Constitution; (d) Failure to conform to the statute under which it is made in exceeding the limits of authority conferred by the enabling Act; (e) Conflict with the laws of the land, i.e. any law or enactment; (f) Manifesting arbitrariness/improperness (to the extent that the court may well say that the legislature never intended to give it the authority to make such rules). Court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the original Act What is the object and (^17) (2019) 3 SCC 39 (^18) AIR 2018 SC 4321 (^19) Appeal (civil) 5572-5644 of 2005
scheme of the parent Act, the court must proceed with caution before declaring invalidity. In challenging the subordinate legislation, the party has to prove the court that there has been abuse of power. Mala-fides: The Court may interfere only if it is found that the order has been taken without considering relevant factors or is based on extraneous or irrelevant considerations or is malafide due to malfeasance or arbitrariness of the patent. In Nabam Rebia vs. Deputy Speaker^20 , the Supreme Court reinstated the Government headed by Nabam Tuki in Arunachal Pradesh and declared as illegitimate decisions of the Governor, which led to the imposition of Presidentās Rule in the State and then the formation of a new Government. Different factions of the ruling party welcomed the order. The timely involvement of judiciary made the application of Article 356 i.e. Presidentās Rule, based on a Constitutional failure, is subject to judicial review. The landmark judgment will put a stop to the Centreās propensity to misuse the powers of the Governor and Presidentā Rule to remove rival State Governments. Restoring the previous Government, the Supreme Court held that the Assembly was not suspended immediately, but only kept under suspended animation till both Presidentās Rule was permitted by both houses of parliament. It also demanded a floor test to confirm Governmentās majority. Thus, the Court restored the sanctity of floor test. The Supreme Court ordered the Governor of Arunachal Pradesh to answer why he recommended Presidentās Rule in the state. But later, the apex Court recalled the order saying that the Governor had absolute power and was not responsible to courts for anything done in his official capacity, not on assumption. (^20) Appeal (civil) 6203- 6204 of 2016
Reference:
Statute:
The Constitution Of India, 1949
Books:
Prof. Jain, M.P., Indian Constitutional Law (V Edition, 2008), Wadhwa and Company, Law Publishers, New Delhi. Singh, M.P., Shukla V.N.ās Constitution of India (XI Edition, 2008), Eastern Book Company, Lucknow. Dr. Pandey, J.N., Constitutional Law of India (XXXXIII Edition, 2006) Central Law Agency, Allahabad. Prof Kumar Narendra, āConstitutional Law of Indiaā (V Edition, 2005), Allahabad Law Agency, Faridabad. Dr. Jha, C.D., Judicial Review of Legislative Acts, (II Edition, 2009), Lexis Nexis Butterworths Wadhwa, Nagpur. Dr. Reddy G. B, Judicial Activism in India, (I Edition, 2001) Gogia Law Agency, Hyderabad. Dr. Basu Durga Das, Introduction to the Constitution of India, (20th Edition, Reprint 2012), Lexis Nexis Butterworths Wadhwa, Nagpur.
Websites:
www.lawinfo.com. www.unilawbooks.com. www.lawsindia.com.