Open Access Research Article
JUDICIAL REVIEW AND INDIAN COURTS
Published Paper
Article Details
JUDICIAL REVIEW AND INDIAN COURTS
AUTHORED BY
- KAJAL CHAUDHARY & DR. RAJEEV KUMAR SINGH
JUDICIAL REVIEW AND THE INDIAN COURTS
Judicial
review refers to a superior court revising a lower court's decree or sentence.
Judicial review is important in public law, especially in countries with
written constitutions that prioritize limited government. Judicial review allows
courts to assess the constitutionality of legislative and governmental actions.
The
American Supreme Court devised the idea of judicial review, despite the lack of
an express provision in the American Constitution. In Marbury v. Madison, the
Supreme Court established the power of judicial review. Chief Justice George
Marshall said, “Certainly all those who have framed the written Constitution 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”.
In the
United States of America, the Constitution takes precedence above legislative
acts. If there is a dispute between the two, courts will rule that the legislative
acts are unconstitutional and hence invalid. Courts invalidate legislative and executive
activities that violate constitutional restrictions.
Judicial Review
in India
In this regard,
the Indian Constitution is more similar to the United States Constitution than to
the British Constitution.
In the
United Kingdom, the doctrine of parliamentary supremacy remains valid.
Parliamentary enactments cannot be declared invalid by any court of law. Courts
must enforce all provisions of parliamentary laws.
According
to India's constitution, parliament is not supreme. Its abilities are limited
in two ways. First, there is a separation of powers between the union and the
states. Parliament can only pass laws on matters that protect citizens against legislative
encroachment.
This is
what makes the court a formidable tool for judicial review under the
Constitution. According to Dr. M.P. Jain, the concept of judicial review is
deeply ingrained in India and explicitly supported by the constitution.
The
judiciary plays a crucial role in a constitution that protects fundamental
rights, divides power between the union and states, and defines the powers and
functions of all state organs, including parliament, through judicial review.
The
judiciary has the capacity to evaluate legislation, as stated in both political
theory and the constitution. The Indian constitution includes specific provisions
for judicial review of legislation, including Acts 13, 32, 131-136, 143, 226, 145,
246, 251, 254, and 372.
Article 372
(1) establishes judicial review of pre-constitutional laws in a similar manner.
Article 13 states
that any law that violates any article of the Fundamental Rights will be void.
Our Supreme Court has observed, even without specific provisions in Article 13.
Judicial review
is a great weapon in the hands of judges. It comprises the power of a court to hold
unconstitutional and unenforceable any law or order based upon such law or any other
action 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 judicial review in action. The courts have power to
strike down any law, if they believe it to be unconstitutional.
The judgment
in I.R. Coelho v. the State of Tamil Nadu has answered this question by establishing
the pre-eminence of judicial review of every part of the Constitution. The
Court has laid down a two-fold test: (a) whether an amendment or a law is violative
of any of the Fundamental Rights in Part III (b) if so, whether the violation found
is destructive of the basic structure of the Constitution. If the court finds
that the impugned enactment damages the basic structure of the Constitution, it
shall be declared void, notwithstanding the fictional immunity given to it by Article
31B.Thus, the basic structure doctrine requires the State to justify the degree
of invasion of Fundamental Rights in every given case; and this is where the
court's power of judicial review comes in.
Under our Constitution, judicial review can conveniently be classified under three headsi
1) Judicial review of Constitutional amendments. -This
has been the subject-matter of consideration
in various cases by the Supreme Court; of them worth mentioning are: Shankari Prasad caseii, Sajjan Singh
caseiii, Golak Nath caseiv, Kesavananda Bharati case,
Minerva Mills case, Sanjeev
Coke case8 and Indira Gandhi case. The test of validity of Constitutional amendments conforms to the basic
features of the Constitution.
2)
Judicial review of legislation of Parliament, State Legislatures as well
as subordinate legislation. -Judicial review in this category is
in respect of legislative competence and violation of fundamental rights or
any other Constitutional or legislative limitations;
3) Judicial review of administrative action of the Union of India as well as the State Governments
and authorities falling within the meaning of State. The researcher’s emphasis is in this
direction.
It is
necessary to distinguish between ‘judicial review’ and ‘judicial control’. The
term judicial review 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 system which functions in
India under Arts. 32 and 226 of the Constitution. Judicial control, on the other
hand, is a broader term. It denotes a much broader concept and includes
judicial review within itself. Judicial control comprises of all methods through
which a person can seek relief against the 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 exercised within the four corners of
law and within the legal limits. Exercise of administrative power is not an exception
to that basic rule. The doctrines by which those limits are ascertained and
enforced form the very marrow of administrative law. Unfettered discretion
cannot exist where the rule of law reigns. Again, all power is capable of
abuse, and that the power to prevent the abuse is the acid test of effective judicial
review.
Traditionally,
courts of law controlled the presence and extent of prerogative authority, but
not how it was exercised. The ruling in Council of Civil Service Unions v.
Minister for Civil Service clarified that the reviewability of discretionary
power is determined by the subject matter, not the source. The scope of judicial
review and justifiable area may differ by case.
At the same
time, the authority of judicial review is not absolute or infinite. If courts
were to evaluate administrative activities deemed 'unfair' based on merits,
they would have jurisdiction to do the same thing by admiration.
administrative
power, it would put its own legitimacy at risk. It is submitted that the
following observations of Frankfurter, I. in Trop v. Dulles, lay down correct legal
position: “All power is, in Madison’s Phrase ‘of an encroaching nature’.
Judicial Power is not immune against this human weakness. It also must be on guard
against encroaching beyond its proper bounds, and not the less so since the
only restraint upon it is self-restraint.”
Cases On Judicial Review
In India
Courts adjudicate
disputes between individuals, states, and the union. They may interpret constitutional
provisions and laws, and the Supreme Court's interpretation becomes the law recognized
by all courts. There are no appeals against the Supreme Court's decision.
In Shankari
Prasad vs. Union of India15, the Supreme Court ruled that the first Amendment
Act of 1951 violated the right to property and could not be amended due to
Article 13(2) restrictions on fundamental rights.
In the context of Article 13 law must be taken to mean rules or
regulations made in exercise of ordinary
legislative power and amendments to the constitution made in exercise of
constituent power, with the result that Article
13 (2) does not affect amendments made under Article
368." In Sajan Singh's case16, the corpulence of
parliament to enact 17th amendment was challenged before the constitution. Bench comprising of five judges on the
ground that it violated the Fundamental
Rights under Article 31 (A). Supreme court reiterated its earlier stand taken
in Shankari Sad's case and held,
"when article 368 confers on parliament the right to amend the constitution the power in question can be
exercised over 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, and could 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 11 judges 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 that
parliament under article 368 has no
power to take away or abridge the Fundamental Rights contained in chapter II of
the constitution the court observed.
1) Article 368
only provides a procedure to be followed regarding amendment of the constitution.
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 97 of
the union list.
4) The
expression 'law' as defined in Article 13(3) includes not only the law made by
the parliament in exercise of its ordinary legislative power but also an
amendment of the constitution made in exercise of its constitution power.,
5) The
amendment of the constitution being a law within the meaning of Article 13 (3)
would be void under Article 13 (2) of it takes away or abridges the rights
conferred by part III of the constitution.
6) The First Amendment
Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964
abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2)
of the constitution.
7) Parliament
will have no power from the days of the decision to amend any of the provisions
of part III of the constitution so as to take away or abridge the Fundamental
Rights enshrined there in.
The constitutional
validity of the 14th, 25th, and 29th Amendments was challenged in the Fundamental
Rights case. The Govt. of India claimed that it had the right as a matter of
law to change or destroy the entire fabric of the constitution through the
instrumentality of parliament's amending power.
In Minerva
Mills case18 the Supreme Court by a majority decision has trunk down section 4
of the 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 constitution are equally important and absolute primacy
of one over the other is not permissible as that would disturb the harmony of the
constitution.
The Supreme
Court was convinced that anything that destroys the balance between the two
parts will Isotactic 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 state case Laws, constituted
unconstitutional. The judiciary in the constitutional system, made a very important position. Indian Supreme court
on a series of allegations of violation of basic human rights under the Constitution of India conducted a judicial
review of cases. The Supreme Court's position
is that any attempt to amend the Constitution related to impact of civil rights
legislation or regulations are
subject to subject to judicial review. India has also restricted judicial
review of executive and legislative powers to play a role. Judicial
review of legislation from the early review extends
to all acts of government or administration. It can be said that in addition
to specific case,
the Court exercise their restraint of judicial power,
judicial review has almost no borders.
Judicial review of political issues:
In the early
practice of judicial
review, Supreme Court
of India was that if the case involved political
issues, does not apply to judicial review. But then this position has changed slowly, in Keshavananda Bharathi case, the
Court noted that "involves tampering with the Constitution judicial review of cases
may involve political issues, but only the court has the power
to judge cases. interpret the Constitution's powers should be attributed to the
State jurisdiction ".The Court's position in the latter case in a series
of further specific, as in S. R. Bommai
case, the court decision that "The state Governor, the President formed
the basis of his political
views may be based on judgments, it is not appropriate for judicial review. If Justice falls into
a complex political dispute, which the court should be avoided. So, the court
cannot 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 cannot review
the President's subjective judgments,
but the president may review the basis on which to make decisions.” From these precedents it can be seen that the
Indian courts in dealing with the basic legal and political position of the judiciary in finding
significant matters involving politics should be careful to play its role of judicial review,
and some restraint
in handling cases,
to avoid use 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 and supervision should be ultra vires the right
balance.
The basic principles of judicial review of constitutional status: In
1973, the Supreme Court in the landmark
Keshavananda Bharathi v. State of Kerala19 case presented the basic principles
of judicial review. The legislature
can amend the constitution but cannot change the basic principles of the Constitution. If the violation of
basic constitutional principles, constitutes unconstitutional is generally believed that the basic
principles of the Constitution of India has the following five basic 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 entire framework of the Constitution. The Constitution is built on the
basic principle's citizens on the basis
of freedom and dignity, the Indian Constitution, the Law may not deprive
citizens of any form 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 series of cases,
the court of judicial review is further recognized as one of the basic
principles of the Constitution. The Court in some cases held that judicial review is a constitutional fundamental and essential feature. If the judicial
review is absolutely deprived of the Constitution had no vitality. The Court further
pointed out that if the Supreme Court ruled out legislation enjoy the constitutional right to judicial review, and with no other alternative mechanisms for judicial review
is in violation of the basic principles of the Constitution, the Congress, the legislation goes beyond the scope of legislative power. In 1997, L. Chaiadra
Kumar V Union of India. case, the Constitutional Court more clearly
that "the Constitution and Articles 32 &226 were granted to the Supreme Court and High Court judicial
review of existing
legislation is a constitutional right to an integral
and essential element judicial review itself constitutes one of the basic
principles of the Constitution. "
Indian Supreme Court precedent established by judicial review
the basic principles of the Constitution, this Constitution and the rule of law in
India's role cannot be ignored, for enhancing the legislative and executive powers of judicial
checks and balances play an important
role. But given the absolute power of judicial
review, in fact distorted the balance of power theory,
to some extent, leading to the expansion of judicial review and abuse of power.
Judicial activism the expansion
of judicial review:
After 80 years of the 20th century,
public demand for government administration in strict accordance with the Constitution and laws, hoping
to promote administrative reform through judicial growing louder and
louder, the judiciary is also required in response to the public judicial activism
began to take position. In the subsequent
case of Menaka Gandhi,
the Supreme Court to promote the implementation of the Constitution in terms of protection
of citizens basic human rights,
and to seek India's laws in line with the global trend of legal protection of basic human rights. The court of human rights protection thanks to a series of successful litigation procedural law reform,
as introduced in the procedural law of social
activities on litigation, public interest litigation and other new design of the system,
so that vulnerable groups in society can more easily
enter the judicial
process. Indian court
has also sought,
through judicial interpretation of constitutional provisions to achieve its goals. 80 years in the 20th century
and early 90s, the Indian court would change its traditional law enforcement
agencies as a simple nature
of many of its political decision to the Indian society,
the enormous social
and economic change.
While judicial activism has played an active court
supervision of administrative and legislative powers,
the role of the effective
exercise of judicial
power, to some extent contributed to the improvement of the rule of law in India. But on the other hand, the Supreme Court's new role of judicial
activism also has been criticized, and many
Critics accused him of breach of the principle of separation of powers, especially the Supreme 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 power of
judicial review has become India's new task of constitutional law.
Five Restrictions On The
Right Of Judicial
Review
The power
to limit judicial review of administrative justice is important to prevent undue
interference. Additionally, laws on Indian courts might lead to judicial
activism and horizontal expansion. It has a respectful and skeptical approach
towards mixed complexes. Judicial review of creative interpretations of the Constitution
can impact legislative and executive powers. However, individuals have the
right to judicial review of legislation, which may be independent of executive
power concerns. Judicial evaluation of constitutional concerns can be
subjective, potentially leading to major consequences if not properly regulated.
Justice Dwivedi of the Indian Supreme
Court stated that the court cannot handle the complicated mix of political activities and attitudes
that influence basic societal choices. Without defined constitutional requirements and
proper conditions, the court's conclusion on the trade-off is subjective and influenced by judges' personal
preferences. Electronic copy available at https://ssrn.com/abstract=1990601,
highlighting the judge's subjective nature. Reduce legal certainty, one of which
is the nature of the rule of law. The Supreme
Court's rulings on constitutional
issues, including Congress's constitutional rights, federal relations, and
presidential powers, have varying perspectives.
Restrictions on
judicial scrutiny of content. India's
judicial review of constitutional and procedural law is limited by two principles: the
principle of delay slack (Doctrine of Laches), which states that if rights are lost due to slack, the
court will not grant relief, and the principle of res judicata, which states that regardless of the
outcome of the verdict, the parties and courts must accept the verdict content. India, although the legal procedures commenced against the law of other than the
Constitution 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.
Although judicial self-restraint
during legislative review may be illegal, it should nonetheless be considered constitutional. The court must
prove that a bill breaches the core principles of the Constitution, even if it has not been formally declared
unconstitutional. The court reviewed the constitutionality
of an application to adopt constitutional interpretation technology. This
involves reviewing the constitutionality of Act provisions and determining which interpretation is unconstitutional. The court typically
favors the former explanation, but this can also be influenced by the judge's personal views.
Administrative action is considered
less constitutional than legislation under judicial review. The legislature allowed for administrative
discretion, and the court will use the judicial restraint concept. The Court of Administrative
Discretion cannot question constitutionality unless there is misuse of the executive branch
or when the Chief Administrative Discretion is not
applicable.
Conclusion
Increased
public knowledge in India has led to significant government actions on judicial
review, reflecting the country's legal development trends. Some executive
branches are seeking judicial review on difficult matters to lessen
decision-making responsibilities. Based on India's judicial review development
and framework, the following conclusions can be drawn. India's judicial review
of the constitutional system is significant in the context of Indian
capitalism. The rule of law strengthens the constitutional system. Judicial review
is to balance legislative and administrative limits while ensuring the
interests of all sectors. Judicial review in India aims to establish the constitutional
principle and expand its scope. Judicial review is an important tool for good
constitutional governance. In judicial review, courts must balance social
interests, use appropriate activism or restraint, and consider various factors
such as laws, discretion granted to the target, and the nature and scope of
discretionary decisions that may impact the rights and interests of those
affected. Judicial review in India traces back to the British colonial era and
its constitutional structure, as well as common law.
i Justice Syed Shah Mohammed Quadri,
Judicial Review of Adminstrative Action,
(2001) 6 SCC (Jour) 1. Shankari Prasad Singh Deo v. Union of
India, AIR 1951 SC 458.
ii Shankari Prasad Singh
Deo v. Union of India, AIR 1951 SC 458
iii Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
iv Golak Nath v. State of Punjab, AIR 1967 SC 1643.
Article Information
JUDICIAL REVIEW AND INDIAN COURTS
Authors: KAJAL CHAUDHARY, DR. RAJEEV KUMAR SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.