Open Access Research Article
JUDICIAL REVIEW AND LEGISLATIVE INTENT: A CONSTITUTIONAL PERSPECTIVE
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Article Details
‘‘JUDICIAL
REVIEW AND LEGISLATIVE INTENT: A CONSTITUTIONAL PERSPECTIVE”
AUTHORED BY
- HARSHPREET KAUR
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1.
INTRODUCTION
“The Constitution of a nation is often referred to as a “living
document” due to its dynamic nature and ability to evolve alongside
societal changes. It is not merely a legal framework but also a socio-economic
charter designed to fulfill the aspirations of the people and guide the country
toward achieving its foundational goals. The Indian Constitution, in
particular, was crafted by visionary leaders who were undisputed architects of
the nation's destiny. It was conceived as a comprehensive and enduring
document, intended to govern the country and safeguard the rights and freedoms
of its people for generations.”
“In establishing the various organs of government, the framers of
the Constitution entrusted the power to interpret this foundational document to
the judiciary, specifically the Supreme Court of India. The apex court, over
time, has played a pivotal role in ensuring the proper functioning of the
constitutional framework. In its early years, the judiciary interpreted the
Constitution's provisions in a manner reflective of the evolving needs and
aspirations of the people. The underlying principle guiding all actors in this
constitutional framework has been the maintenance of the rule of law. Whenever
the legislative or executive branches sought to overstep their constitutional
mandates or encroach upon individual freedoms, the judiciary did not hesitate
to intervene, asserting its authority to preserve the balance among the three
organs of the government.”
“At the same time, the judiciary has also recognized situations
where national interests necessitate certain limitations on individual rights.
In such cases, it has employed interpretative tools to balance competing
priorities. Over time, the judiciary has become more proactive, scrutinizing
governmental actions against the fundamental principles enshrined in the
Constitution. This proactive stance has led to the rise of judicial activism,
which has sparked considerable debate in contemporary India. Critics,
particularly traditionalists, argue that the Supreme Court is overstepping its
constitutional boundaries by using judicial review as a tool to assert its
authority. They contend that the judiciary must adhere strictly to the original
design and intent of the Constitution's framers.”
“In recent years, the Supreme Court of India has issued several
landmark rulings addressing socio-economic issues and governmental negligence,
particularly concerning the welfare of ordinary citizens. These rulings have
reinforced the judiciary’s role in reminding the executive of its duties to the
populace. However, this increasing assertiveness has led to criticism and
concern at various levels, with fears that the judiciary may be encroaching
upon its constitutionally defined role of interpreting the law in line with the
original constitutional text.”
At the heart of this debate lies a fundamental question: Should the
judiciary and legislature base their interpretation and application of the
Constitution on the "original intent" of its framers, or should they
incorporate new ideas and interpretations that emerge over time to address the changing
needs of society? This question underpins the ongoing discourse on the
relevance and value of the "original intent" theory in a rapidly
evolving society.
“In addressing these issues, it is essential to explore the
relationship between a Constitution and the concept of Constitutionalism.[1]
While a country may possess a Constitution, it does not necessarily mean it
embraces Constitutionalism—a principle that ensures the protection of basic
individual freedoms, dignity, and personality through the rule of law.
Therefore, understanding the nuances of terms such as “Constitution”, “Constitutional
Law”, and “Constitutionalism” is vital. Moreover, history serves as a critical
tool in addressing present-day challenges, as it offers valuable insights into
the rise, fall, and transformation of nations over time.”
1.1 MEANING AND DEFINITION OF CONSTITUTION
AND CONSTITUTIONALISM
The Constitution serves as the
cornerstone of a nation’s liberty, forming the structural framework within
which the forces of law and governance operate to safeguard peace and
prosperity for its citizens. As the protector of individual rights and
privileges, it commands respect for its provisions and adherence to its
principles by all.
DEFINITION OF “CONSTITUTION”
“Throughout history, philosophers and
jurists have articulated various definitions of the term “Constitution.”
Broadly, it has been described as the foundational charter that establishes a
government. It represents the collective will of the people, functioning as
their ultimate legal authority. The Constitution, being the supreme law,
articulates specific rights, legal principles, and procedural standards. It
serves as the voice of the people, embodying their collective authority and
providing the framework for all actions executed in accordance with its
provisions. As a higher form of law, the Constitution not only governs
legislative actions but also ensures their legitimacy.”
According to K.C. Wheare, “The
Constitution, in a sense, enumerates legal rules & principles which govern
the government of that country & which are the fundamental law of the land.
It is indeed 'the resultant of a para-llelogram of forces political, economic
& social - which operates at the time of its adoption.”[2]
However, According to Justice P.
Jaganmohan Reddy called “Constitution”, “a collection of
principles according to which relations between powers of the government and,
the rights of the governed are adjusted.”[3]
Subsequently Wade & Phillips
quotes Constitution as “A Constitution means a document having a special
legal sanctity which sets out the framework and the principal functions of the
organs of the Government of a state and declare the principles governing the
operation of those organs.”[4]
Whereas according to Thomas Paine,
“A Constitution is thing antecedent to the Government and a government is
only a creature of the Constitution. The Constitution is not the act of its
government but of the people constituting the government.”[5]
On the other hand, Bryce states
that “The Constitution of a state or nation consists of those of its rules
or laws which determine the form of the government and the respective rights
& duties of the citizens towards the government.”[6]
From these definitions, it is evident
that the modern understanding of “Constitution” encompasses a codified
set of legal principles and rules.
These principles not only define the
relationship between the different branches of government but also delineate
the rights and obligations of both the state and its citizens.
PURPOSE AND ESSENTIAL FEATURES OF A CONSTITUTION
“A Constitution is
designed not merely to establish, organize, and allocate governmental power but
also to ensure that such power is exercised in a legitimate and accountable
manner. To achieve these objectives, a “Constitution” must satisfy certain
essential criteria, including:
a) Clarity: It should be precise and definitive.
b) Comprehensiveness: It must cover all fundamental
aspects of governance.
c) Brevity: While detailed, it should remain
concise.
d) Flexibility: It should allow for adaptability to
changing circumstances.
e) Declaration of Rights: It must guarantee individual rights
and freedoms.
f) Judicial Independence: It should establish an impartial
judiciary to ensure fair administration of justice.”
“Owing to its overarching authority,
the Constitution is regarded as a superior form of statutory law.[7] It
is broadly categorized into two types: (a) Evolved Constitutions, which
develop gradually over time; and (b) Enacted Constitutions, which are
created through deliberate drafting and formal adoption.”
“CONSTITUTIONAL LAW: SCOPE AND NATURE”
“Constitutional Law”
refers to the legal framework arising from the Constitution. It is a branch of
public law that governs the political structure of a state and delineates the
powers of its government. Additionally, it imposes both substantive and
procedural limitations on the exercise of governmental authority to ensure
accountability and justice.
“Constitutional Law” is the law of
the Constitution. It is a branch of Public Law which determines the Political
Organization of a State and its powers, while also setting certain substantive
and procedural limitations on the exercise of governing power.
According to Salmond,
“Constitutional Law is the body of those legal rules which determine one
Constitution of the state. It is both a matter of fact and of law. It comprises
not only of legal rules but also of Constitutional practices which are
logically prior to Constitutional Law.”[8]
For Samuel Weaver “Constitutional
Law consists of the organic and fundamental norms. It is the law of the
establishment of the Constitution, its construction, interpretation and change.”
Infact, “Constitutional Law” is the “Grund
norm of the laws of one nation, embodying a higher validity emanating from the
Political Sovereign and its validity is supreme, meta legal, where the validity
of other laws is determined in the light of the Constitutional law”.[9]
“However, much like the term “Constitution,”
the concept of “Constitutional Law” is not amenable to an exact
definition. In its broadest sense, it encompasses the study and interpretation
of Constitutions, focusing on their formation, evolution, and application.”
Nevertheless, Edward Meese has
drawn a sharp distinction between the “Constitution” and “Constitutional
Law”, stating; “If the Constitution is the unadorned text, then
Constitutional law is simply what the Supreme Court says about the Constitution
in its decisions resolving the case and controversies that come before it.”[10]
“This intricate branch of jurisprudence remains vital in shaping the structure of governance while safeguarding the fundamental principles of justice and liberty.”
CONSTITUTIONALISM
“Constitutionalism thrives on several
factors, including the freedoms of expression and association, an enlightened
public opinion, a responsible opposition, and high standards of purity and
integrity in public life. The Constitution itself can be seen as a framework,
with its essence and vitality infused by the people who establish and operate
the government. Adherence to Constitutionalism is essential to successfully
navigate the complexities and challenges inherent in the journey of democracy.
It is only by embracing the principles of Constitutionalism that we can
safeguard fundamental individual freedoms and uphold human dignity and
personality.”
“Therefore, a Constitution must be
imbued with the spirit of Constitutionalism, which fundamentally opposes
arbitrary power and reinforces the enduring virtues of democratic traditions.”
“To achieve this, Constitutionalism
must be adaptable and accommodating, rather than excessively rigid or overly
legalistic. If it becomes detached from the dynamic forces of societal change,
it risks degenerating into a sterile formalism that fails to serve its purpose
of channelling and moderating such changes effectively.”
According to Kelly and Belz, “Constitutionalism
is the theory and practice of conducting politics in accordance with a
Constitution. Its main requirement is legalism, the belief that right conduct
consists in the following rules”.[11]
Infact, the concept of
Constitutionalism is akin to the science of politics alike. In the words of P.
Rajeshwara Rao “Constitutionalism implies a Government under law through
law and in conformity with law. It, like Hinduism, is a movement and not a
position; a process and not a result, a growing tradition and not a fixed
revelation.”[12]
“A significant post-World War II
development has been the proliferation and growth of Constitutionalism, marked
by the adoption of written Constitutions in numerous countries, including India
and the United States. Within Western civilization, Constitutionalism is
revered as a concept that establishes a political framework where the rule of
law prevails over the rule of individuals. It ensures that political authority
is exercised in accordance with established laws, binding everyone,
irrespective of their position, to act within legal boundaries devoid of
personal whims or arbitrariness.”
“To fully appreciate this concept of “higher
law” or, in political terms, “Constitutionalism,” it is imperative to delve
into the historical context that shaped the emergence of the Indian
Constitution. Understanding the objectives envisioned by the framers of the
Constitution provides valuable insights into the essence of Constitutionalism
in India.”
1.2 “HISTORICAL BACKGROUND OF INDIAN
CONSTITUTION AND OBJECTIVES BEFORE ITS FRAMERS”
“The Indian Constitution, as a
hallmark of democratic governance, stands as one of the most comprehensive and
meticulously drafted Constitutions in the world. Its creation was deeply
influenced by India’s historical experiences, struggles for independence, and
the aspirations of its people to establish a just and equitable society. The
framers of the Constitution aimed to balance diverse needs upholding individual
freedoms, ensuring socio-economic justice, and fostering national unity. This
essay delves into the historical underpinnings of the Indian Constitution and
the objectives envisioned by its framers, laying the foundation for
understanding its dynamic interplay with judicial review and legislative
intent.””
“The origins of the Indian
Constitution can be traced to colonial rule, which profoundly shaped its
structure and principles. The British introduced several legislative frameworks
in India, such as the Regulating Act of 1773, the Government of India Act of
1858, and the Indian Councils Acts of 1861 and 1892. These statutes centralized
authority, curtailed Indian participation in governance, and institutionalized
British dominance. However, they also set the stage for constitutional
governance by introducing limited representation and rule of law. The watershed
moment in India’s constitutional journey came with the Government of India Act,
1919, which introduced dyarchy in provinces, and the Government of India Act,
1935, which laid the groundwork for federal governance. These Acts provided a
framework for the eventual creation of an independent democratic Constitution.[13]””
“Parallel to legislative
developments, India’s freedom struggle, led by luminaries like Mahatma Gandhi,
Jawaharlal Nehru, and Dr. B.R. Ambedkar, emphasized self- rule, individual
rights, and social reform. The demand for a Constitution drafted by Indians, as
opposed to one imposed by the colonial regime, gained momentum with the Nehru
Report of 1928 and the Karachi Resolution of 1931, which articulated
fundamental rights and socio-economic justice.[14]””
“Post-independence, the Constituent
Assembly, comprising representatives from diverse regions, communities, and
ideologies, began drafting the Constitution on December 9, 1946. Influenced by
global models, particularly the U.S. Constitution’s emphasis on judicial review
and the U.K.’s parliamentary supremacy, the framers sought to create a
Constitution that reflected India’s unique socio-political realities.””
“The objectives of the Constitution’s
framers were explicitly outlined in the Objective Resolution, moved by
Jawaharlal Nehru in the Constituent Assembly on December 13, 1946.[15]
This resolution emphasized sovereignty, justice, equality, liberty, and
fraternity, principles that were later enshrined in the Preamble of the
Constitution.””
“The framers aspired to create a
document that would:
1. Establish India as a sovereign,
socialist, secular, and democratic republic.
2. Guarantee fundamental rights to every
citizen, ensuring individual liberty and equality.
3. Promote social and economic justice
to bridge the vast inequalities within society.
4. Ensure the unity and integrity of the
nation while respecting its pluralistic fabric.
5. Lay the foundation for a government
accountable to the people, with a clear separation of powers among the
legislature, executive, and judiciary.””
“Before delving into the functioning
of our Constitution, it is imperative to first examine the key features of both
democratic Constitutions. A comprehensive understanding of these
characteristics becomes essential, particularly within the framework of the
theory of original intent. This approach helps to evaluate how the courts and
legislatures in both democracies have factored in these fundamental principles
while interpreting legal provisions or formulating laws.”
1.3 “IMPORTANT FEATURES OF THE INDIAN
CONSTITUTION””
“The vision that inspired the framers
of the Indian Constitution bore remarkable resemblance to that of the
architects of the American Constitution. Both envisioned a society where human
intellect and spirit could thrive freely, unshackled by constraints, encouraging
unlimited inquiry and allowing individuals the freedom to explore uncharted
territories and question deeply ingrained beliefs and principles.[16]
The foundational principles of the Indian Constitution aim to establish a
welfare state, reflecting the salient characteristics of a federal structure.”
“The key features of Indian democracy
include:
a) The lengthiest written Constitution
in the world;
b) The establishment of a Sovereign,
Socialist, Secular, Democratic Republic;
c) Adoption of a Parliamentary form of
government;
d) Recognition and protection of
Fundamental Rights;
e) Inclusion of Directive Principles of
State Policy;
f) Enactment of Fundamental Duties;
g) Judicial review and an independent
judiciary;
h) A federal system with a unitary bias;
i)
Adult
suffrage ensuring popular sovereignty;
j)
A
unique blend of rigidity and flexibility in constitutional amendments.”
“The framers of the Indian
Constitution sought to incorporate the best provisions from constitutions
worldwide, which led to its comprehensive and elaborate nature.[17]
Given their familiarity with the Parliamentary system, most members of the
Constituent Assembly favored this form of government, as it prevents the
concentration of power in one entity and ensures that the ultimate authority
rests with the people. To safeguard basic rights and freedoms, the Constitution
provides an extensive declaration of human rights, with the added feature of
making Fundamental Rights justiciable.[18]”
“In furtherance of the goal of
creating a welfare state and achieving socio-economic objectives, the
Constitution also includes non-justiciable rights in the form of Directive
Principles of State Policy. Recognizing the necessity of judicial oversight for
protecting fundamental rights, judicial review, coupled with an independent
judiciary, has been established as a cornerstone of the Indian legal framework.”
“The framers of Indian Constitution,
understood the unique challenges faced by India that differed from other
federations in history, adopted a federal structure with a unitary tilt. As a democracy
rooted in active participation, the Constitution grants the right to vote to
all above 18 years.”
“To ensure adaptability to changing
times, the framers chose a balanced approach to constitutional amendments,
incorporating elements of both rigidity and flexibility. This adaptability
allows the Constitution to evolve without losing its essence. For instance, the
words "Socialist" and "Secular" were added to the Preamble
through the 42nd Constitutional Amendment Act, 1976, and Chapter IVA
introducing Fundamental Duties was also inserted. This flexibility ensures the
Indian Constitution remains dynamic, capable of growth and reform without
compromising its core principles.[19]”
“The framers of the Indian
Constitution were inspired to incorporate the best features from various
constitutions worldwide. This ambition resulted in the creation of an extensive
and detailed constitutional framework. Given their familiarity with the
parliamentary form of governance, the Constituent Assembly members
overwhelmingly favoured it, recognizing its merit in curbing autocracy by
ensuring that real power resides with the people.”
“The study underscores that the
framers of the Indian Constitution envisioned a democratic framework aimed at
promoting the welfare of its citizens. The extent to which the aspirations of
these architects have been realized can be assessed by examining the
functioning of the Constitution over time. It also raises questions about how
faithfully succeeding generations have adhered to the original document, the
values, and the principles that guided its creation.””
“It is crucial to remember that a
Constitution inherently relies on the assumption that every subsequent
generation will uphold the faith and commitment to the ideals that shaped its
provisions. In the absence of this fundamental allegiance, the effective
operation of the Constitution is likely to face significant challenges.
Furthermore, a Constitution is more than a written document; it embodies a way
of life that requires active observance and practice.”
“Thus, the Indian
Constitution is a dynamic document, capable of evolving without losing its
foundational essence, embodying the aspirations of its framers while
accommodating the needs of future generations.”
2. “THE POWER
OF JUDICIAL REVIEW”
“In democratic systems governed by written constitutions, the powers
and functions of various branches of government are explicitly outlined in the
foundational legal document. This framework is designed to ensure that no
branch exceeds its prescribed authority or encroaches upon the jurisdiction of
another. To address instances where boundaries are crossed, the Constitution
entrusts the judiciary with the responsibility of adjudicating such disputes.
This judicial authority to examine and prevent the overreach of power forms the
foundation of the concept of judicial review. It is through judicial review
that courts assert their role as the interpreters of constitutional provisions,
resolving disputes concerning constitutional questions.”
““Judicial review primarily resides with the apex court of the
country, often the Supreme Court, which serves as the final authority on
matters of constitutional interpretation. This function underscores the
critical role of the judiciary in maintaining the balance of power and
safeguarding the supremacy of the Constitution.”
“Broadly understood, judicial review refers to the judiciary’s
authority to assess the constitutionality of legislative or executive actions,
especially when the issue of constitutionality arises in the course of
adjudicating legal disputes. It empowers courts to ensure that the acts of
government comply with constitutional mandates, thus upholding the rule of law.
Through this mechanism, the judiciary acts as the guardian of constitutional
integrity, ensuring that democratic principles and the separation of powers are
preserved within the governance framework.[20]”
2.1 “CONCEPT, MEANING AND ORIGIN OF
JUDICIAL REVIEW”
“Judicial review refers to the
process by which the judiciary evaluates the actions of the legislative,
executive, and administrative branches of government to ensure compliance with
constitutional provisions. Any actions found to be inconsistent with the
constitution are deemed unconstitutional and rendered null and void. This
authority of courts to assess and invalidate government actions that contravene
constitutional principles is termed as judicial review.”
“The concept of judicial
review originated in the United States legal system, where it is premised on
the existence of a written constitution that can only be altered through formal
amendments. Although legislation is presumed to be valid, courts possess the
authority to nullify any statute that violates constitutional or statutory
principles.”
“While the roots of
judicial review can be traced to the United Kingdom, a country without a
written constitution, it gained firm establishment in the United States under
its written federal constitution. The doctrine, however, has reached its
pinnacle under the Indian Constitution, where it has been recognized as a
fundamental feature. In the landmark case of Minerva Mills Ltd. v. Union of
India[21],
Justice Bhagwati emphasized the judiciary's role in safeguarding constitutional
values and ensuring adherence to constitutional limitations. He stated that the
essence of the rule of law lies in subjecting the actions of all branches of
government—whether legislative, executive, or other authorities—to the
constraints of the Constitution and the law. Judicial review, he noted, is a
vital component of India’s constitutional framework. Without this power, the
government of laws would collapse, and the rule of law would become an illusory
concept. Justice Bhagwati further opined that among all features of the Indian
Constitution, the power of judicial review is central to preserving democracy
and upholding the rule of law. He unequivocally declared it an integral and
immutable part of the Constitution’s basic structure.”
Dr. A.S. Anand[22] defined judicial review as “that
which is not exclusively used in constitutional law, literally it means the
reviser of the decree of an inferior Court by a superior Court.”
“Justice Deshpande has
highlighted that the term "Judicial Review" is employed in both a
narrow and broad sense. When interpreted narrowly, judicial review is confined
to assessing the constitutionality or legality of a contested decision without
delving into its substantive merits. On the other hand, in its broader
interpretation, judicial review entails a comprehensive re-examination of all
issues already adjudicated by a lower court or tribunal, subject to the
authority of a higher court within the judicial hierarchy. This broader scope,
often referred to as a “vertical review,” involves a superior judicial body
reassessing the decisions of a subordinate body. Justice Deshpande aptly
describes judicial review as a mechanism that asserts the supremacy of the rule
of law in regulating state actions.[23]”
2.2 “JUDICIAL REVIEW-BASIC STRUCTURE OF
THE CONSTITUTION”
“The doctrine of judicial
review reached its zenith in the landmark judgment of Kesavananda Bharati
v. State of Kerala,[24] where
the Supreme Court held that although Article 368 grants Parliament the
authority to amend any provision of the Constitution, including the Fundamental
Rights, this power is not unlimited. The Court emphasized that Parliament
cannot amend the Constitution in a manner that would alter or destroy its basic
structure.”
“Interestingly, while the
judges in Kesavananda Bharati identified several features constituting the
basic structure of the Constitution, judicial review was not explicitly
recognized as one of them in that case. However, this position evolved in
subsequent judgments. In Minerva Mills v. Union of India, the Supreme
Court firmly established judicial review as an integral component of the
Constitution’s basic structure. Chief Justice Chandrachud, speaking for himself
and other judges, observed that the Constitution entrusts Parliament with a
limited amending power, and this limitation is itself a basic feature.
Consequently, Parliament cannot use its amending authority to transform its
limited power into an absolute one. He stated that a holder of limited power
cannot, by exercising that power, expand it into something unlimited.”
The concept of judicial
review in India was first recognized in the case of Emperor v. Burah[25].
In this landmark judgment, both the Calcutta High Court and the Privy Council
acknowledged that Indian courts possessed the authority to exercise judicial
review, albeit within certain defined boundaries. This principle was
subsequently reaffirmed in other cases adjudicated prior to the enactment of
the Government of India Act, 1935.
“The Indian Constitution
is based on a delicate balance of powers among the Executive, Legislature, and
Judiciary. The judiciary is tasked with determining the constitutionality of
laws. If courts were entirely stripped of their authority to review
legislation, fundamental rights would lose their practical utility, reducing
them to mere formalities. Rights without enforceable remedies would become
meaningless. Without judicial review, a controlled Constitution could
potentially devolve into an uncontrolled one.”
In S.P. Sampath
Kumar v. Union of India,[26]
Chief Justice Bhagwati highlighted that judicial review is an essential and
immutable feature of the Constitution. He categorically stated that no law,
even one passed through the constituent power of Parliament, can abolish or
curtail this power. Similarly, in Subhesh Sharma v. Union of India,[27]
the Supreme Court reaffirmed that judicial review is a foundational element of
the Constitution and a cornerstone of India's constitutional policy.”
“In L. Chandra
Kumar v. Union of India,[28]
the Supreme Court ruled that judicial review, as conferred upon the High Courts
under Articles 226 and 227 and upon the Supreme Court under Article 32, is an
essential and inseparable aspect of the Constitution’s basic structure. This
power enables the judiciary to assess the constitutional validity of
legislative actions. Therefore, no constitutional amendment can exclude or
negate the authority of the Supreme Court and High Courts to perform judicial
review.”
“These principles are particularly
relevant when evaluating scenarios where provisions like Part III of the
Constitution, encompassing Articles 14, 19, 20, 21, and 32, are excluded
without reasonable justification. The evolving jurisprudence on judicial review
underscores its importance in determining whether constitutional amendments or
legislative actions violate fundamental rights or disturb the balance between
conflicting interests. The judiciary must ensure that this balance is
maintained and reasonable.”
“Equality, the rule of
law, judicial review, and the separation of powers are intricately linked and
form integral components of the Constitution’s basic structure. Furthermore,
these principles would be rendered ineffective if the legislative, executive,
and judicial functions were concentrated in one entity. Consequently, the
judiciary is entrusted with the critical duty of ensuring that the limits
imposed by the Constitution are not transgressed.”
“To enforce fundamental
rights effectively, the Constitution vests the Supreme Court and High Courts
with the power of judicial review. This mechanism ensures that the objectives
enshrined in Part III and other constitutional provisions are given practical
meaning. Judicial review, as a result, remains indispensable to upholding
constitutional governance in India.”
2.3 “IMPACT OF PARLIAMENTARY SUPREMACY ON
POWER OF JUDICIAL REVIEW”
“The concept of
parliamentary supremacy and judicial review has long been at the centre of
constitutional discourse in India. The interplay between these two principles
significantly shapes the structure of governance and the balance of power among
the branches of the state. While parliamentary supremacy reflects the
sovereignty of the legislature to make and amend laws, judicial review
safeguards the Constitution by ensuring that legislative actions do not violate
fundamental rights or constitutional provisions.”
“Judicial review in India
derives its authority from several provisions of the Constitution. Article
13(2) explicitly states that any law inconsistent with or violating fundamental
rights shall be void. Similarly, Articles 32 and 226 empower the Supreme Court
and High Courts, respectively, to strike down unconstitutional laws. These
provisions affirm the judiciary’s role as the guardian of constitutional
values.”
“The tension between
parliamentary supremacy and judicial review was first evident in cases
concerning constitutional amendments. In Shankari Prasad v. Union of
India[29],
the Supreme Court held that Parliament’s power to amend the Constitution under
Article 368 extended even to fundamental rights. This position was reaffirmed
in Sajjan Singh v. State of Rajasthan[30].
However, this view was overturned in I.C. Golaknath v. State of Punjab[31],
where the Court ruled that Parliament could not amend fundamental rights.””
“This conflict culminated
in the landmark Kesavananda Bharati v. State of Kerala (1973),
where the Supreme Court introduced the "basic structure doctrine."
The Court held that while Parliament has the power to amend the Constitution,
it cannot alter its basic structure. This doctrine, though not explicitly
mentioned in the Constitution, became a pivotal tool for judicial review to
check parliamentary overreach. Subsequently, in Minerva Mills Ltd. v.
Union of India (1980), the Court struck down clauses of the 42nd
Amendment, emphasizing that judicial review is part of the Constitution's basic
structure.”
“Judicial review has also
been a critical tool to scrutinize legislative actions that may contravene
constitutional mandates. The judiciary has invalidated numerous laws for
violating fundamental rights, such as the landmark decisions in Maneka
Gandhi v. Union of India (1978), which expanded the scope of personal
liberty, and Navtej Singh Johar v. Union of India[32],
which decriminalized Section 377 of the IPC.””
“The tension between
parliamentary supremacy and judicial review persists. While Parliament asserts
its supremacy through legislative and constitutional amendments, the judiciary
continues to exercise its review powers to safeguard constitutional principles.
This interplay ensures that neither branch oversteps its constitutional
boundaries, preserving the doctrine of separation of powers.”
“The impact of
parliamentary supremacy on judicial review underscores the dynamic nature of
India’s constitutional framework. Through the development of doctrines such as
the basic structure and the vigilant exercise of judicial review, the judiciary
ensures that parliamentary supremacy operates within the constitutional
framework, maintaining the balance essential for a robust democracy.””
2.4 “LIMITATIONS/RESTRAINTS AND GROUNDS
OF JUDICIAL REVIEW””
“The power of courts to declare
statutes unconstitutional is not premised on elevating the judiciary above the
legislature or the executive but is instead rooted in maintaining a robust
system of checks and balances. This system ensures that errors committed by one
branch are corrected by the others. The judiciary’s role is not to challenge or
oppose the majority’s political or legislative policies but to interpret and
uphold legislative provisions within the framework of the Constitution. Courts
are tasked with harmonizing statutory intent with constitutional principles,
rather than imposing their own preferences.”
“While courts possess extensive
powers of judicial review to examine the constitutionality of statutory and
constitutional provisions, these powers must be exercised with utmost restraint
and judicial prudence. Courts should not overstep their boundaries under the
guise of judicial review or encroach into areas reserved for legislative or
executive policymaking.”
“In the case of J.P. Bansal v.
State of Rajasthan[33],
the Supreme Court emphasized the importance of this restraint. It held that
while interpreting the Constitution, courts have a degree of freedom not
available when interpreting statutes. Judges must avoid the temptation to alter
or amend statutory provisions simply because the practical application of a
statute appears to have adverse consequences. If the language of the law is
clear, unambiguous, and leaves no room for doubt about legislative intent,
courts must refrain from judicial innovation. Judges are not lawmakers and must
resist crossing the fine line that separates adjudication from legislation.
This line must be respected to preserve the integrity of the judiciary and
uphold the principle of separation of powers.”
“In exercising judicial review,
courts are also cautioned against resolving theoretical disputes or
controversies where no judicially manageable standards exist. They should
abstain from interfering in executive policy decisions unless those policies
are unconstitutional, violate statutory provisions, or are driven by malafide
intentions. Policy decisions, particularly fiscal ones, fall within the
exclusive domain of the executive, and judicial interference in these matters
should be minimal.”
“The judiciary must also avoid
creating rights that have no legal foundation or issuing orders that cannot be
enforced or are inconsistent with established legal principles. Such actions
risk undermining the credibility of the judiciary and eroding public confidence
in its impartiality. If courts overreach their mandate, the institution may
lose its stature and fail to command the trust of the society it serves.”
“Rooted in the doctrine of the
separation of powers, this mechanism ensures that the actions of public
authorities conform to constitutional principles. However, judicial review is
not an unfettered power and operates within defined limitations and grounds to
prevent arbitrary judicial intervention. The key grounds for judicial review in
India include Jurisdictional Error, Irrationality, Procedural Impropriety,
Proportionality, and Legitimate Expectation.”
JURISDICTIONAL ERROR
“Jurisdictional error arises when a
public authority exceeds the powers conferred upon it by law or fails to
exercise its authority within lawful boundaries. The Supreme Court of India has
consistently recognized this as a ground for judicial review. In Anisminic
Ltd. v. Foreign Compensation Commission[34],
the concept of jurisdictional error was broadly defined, emphasizing that even
errors of law could render a decision invalid if they fall outside the scope of
the authority's jurisdiction. In India, A.R. Antulay v. R.S. Nayak[35]
highlighted jurisdictional overreach as a ground for invalidating judicial and
administrative decisions. Courts exercise caution, however, ensuring that their
review is confined to jurisdictional questions and does not stray into merits
unless there is manifest illegality.”
“IRRATIONALITY
Irrationality as a ground for
judicial review is derived from the Wednesbury principle, established in Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation[36].
A decision is deemed irrational if it is so unreasonable that no sensible
person, acting with proper consideration of the facts, could have arrived at
it. In India, State of U.P. v. Johri Mal[37]
applied this principle to strike down decisions that lacked any reasonable
nexus with their objectives. The judiciary has underscored that while it does
not substitute its view for that of the authority, it intervenes where the
decision is patently arbitrary or unreasonable.”
“PROCEDURAL IMPROPRIETY
Procedural impropriety refers to a
failure to follow due process, including violations of principles of natural
justice such as the right to a fair hearing (audi alteram partem) or bias in
decision-making (nemo judex in causa sua). The landmark case Maneka
Gandhi v. Union of India[38]
expanded the scope of procedural fairness, holding that procedure must be
“fair, just, and reasonable” under Article 21 of the Constitution. Similarly,
in Ridge v. Baldwin[39],
procedural impropriety was a ground for quashing administrative actions that
violated the principles of natural justice.”
“PROPORTIONALITY
Proportionality ensures that
administrative actions are balanced and do not impose excessive burdens on the
rights of individuals. The doctrine was elaborated in Om Kumar v. Union
of India[40],
where the Supreme Court emphasized that administrative measures should not
disproportionately affect fundamental rights. Proportionality requires courts
to assess whether the means adopted are necessary and bear a rational nexus to
the intended objective.”
“LEGITIMATE EXPECTATION
The doctrine of legitimate
expectation protects the expectations of individuals arising from consistent
conduct or promises made by public authorities. In Council of Civil
Service Unions v. Minister for the Civil Service[41],
legitimate expectation was first recognized as a ground for judicial review.
Indian jurisprudence, in cases such as Navjyoti Coop. Group Housing
Society v. Union of India[42],
has upheld this principle, requiring authorities to act fairly and honor
legitimate promises unless overriding public interest dictates otherwise.”
“Judicial review serves as a potent
instrument to curtail any unconstitutional exercise of authority by the
legislature and the executive. Over time, its scope has expanded to incorporate
the principles of social and economic justice. While the legislative and
executive branches are subject to judicial scrutiny, the judiciary itself
operates under the self-imposed discipline of judicial restraint. Courts are
not to intervene merely because an alternate view is possible. Intervention is
warranted only when the decision is tainted by illegality, irrationality,
procedural impropriety, or disproportionality. However, the mere invocation of
these grounds is insufficient; each allegation must be substantiated with
concrete evidence.”
“To minimize grievances and reduce
the need for judicial intervention, administrative authorities must exercise
proper care and diligence while making decisions. This approach will not only
alleviate the burden on the judiciary but also foster a sense of trust,
security, and satisfaction among citizens. Such an environment is vital for
good governance and serves as the cornerstone of a welfare state.”
3. “SEPARTION
OF POWERS AND ROLE OF JUDICIARY”
“The principle of separation of
powers governs the relationship among the three primary organs of the
government: the legislature, the executive, and the judiciary[43].
This doctrine advocates for a clear demarcation of functions among these
organs, emphasizing that no single entity or individual should exercise all
three powers of governance. French philosopher Montesquieu, who extensively
studied this principle, argued that concentrating power in one person or group
could lead to tyranny. He proposed the distribution of power among the
legislature, executive, and judiciary to ensure decentralization and prevent
arbitrary governance. The doctrine mandates that each organ operate
independently and refrain from encroaching upon the functions of the others.
The concept also underscores the importance of an active judiciary functioning
within the constitutional framework, maintaining the balance necessary for
harmonious governance. However, judicial overreach often raises concerns about
adherence to this doctrine.”
3.1 BACKGROUND, MEANING AND IMPORTANCE OF
SEPARATION OF POWER
“Since ancient times, political
theorists have sought mechanisms to safeguard against the misuse of
governmental power. One key solution has been advocating for the rule of law,
where governance is based on established laws rather than the whims of
individuals. Constitutionalism—a system that limits governmental powers-has
inspired thinkers to propose diverse models addressing these issues over the
years.”
“The Indian Constitution, unlike some
others, does not rigidly adhere to the separation of powers. Instead, it
follows a pragmatic approach aimed at ensuring accountability rather than
strict compartmentalization. This position was elaborated by the Supreme Court
in Ram Jawaya Kapur v. State of Punjab[44],
where Justice Mukherjee observed that while the Constitution does not prescribe
absolute separation, it ensures a clear distinction among the functions of
different governmental branches. He emphasized that one organ should not assume
the functions constitutionally assigned to another. A similar sentiment was
echoed in Kartar Singh v. State of Punjab[45],
where Justice Ramaswamy highlighted that sovereign powers under the
Constitution are divided among the legislature (law-making), the executive (law
implementation), and the judiciary (law interpretation), all operating within
constitutional boundaries.”
“The Indian constitutional scheme
presents a sophisticated blend of legislative, executive, and judicial
functions, reflecting a balanced adaptation of the separation of powers. While
the Constitution does not explicitly mandate strict adherence to the doctrine,
it integrates its principles in a flexible and purposive manner to prevent the
concentration of unfettered powers in any one entity. This functional
separation operates as a system of checks and balances rather than a rigid
segregation. Furthermore, the Supreme Court has recognized this doctrine as
part of the Constitution's basic structure.”
“However, questions persist regarding
whether the three organs can interfere with one another’s functions in
instances of inaction or failure. While the theoretical framework laid down by
the judiciary opposes such encroachments, practical deviations-often seen in
judicial interventions in legislative or executive domains-highlight this
unresolved challenge. In Asif Hameed v. State of Jammu and Kashmir[46],
the Court clarified that while the Constitution does not rigidly enforce the
separation of powers, it meticulously delineates the roles of each organ. The
judiciary, has the authority to ensure that the legislature and executive
function within constitutional boundaries, thereby acting as the "sentinel
of democracy."”
“In India, the doctrine of separation
is applied to functions rather than powers. For instance, Cabinet ministers
exercise both legislative and executive functions, as their actions are
intertwined with legislative decisions. Article 74(1) of the Constitution
strengthens this dynamic by mandating that the President act based on the aid
and advice of the Council of Ministers. The executive thus derives its
authority and legitimacy from the legislature, a principle reaffirmed in Ram
Jawaya Kapur v. State of Punjab.”
“Regarding the amending powers of
Parliament under Article 368, the Supreme Court, in the landmark Keshavananda
Bharati v. State of Kerala case, held that while Parliament has the
authority to amend the Constitution, this power is constrained by the
Constitution's basic structure. Any amendment that undermines these fundamental
features would be deemed unconstitutional. This ruling further reinforces the
idea that even the legislature is bound by constitutional principles and cannot
exercise unrestricted authority. This nuanced approach to the separation of
powers under the Indian Constitution ensures a functional overlap while
maintaining the essential checks and balances necessary for a democratic setup.”
3.2 “JUDICIAL ACTIVISM VIS-À-VIS JUDICIAL
OVERREACH\
“The line between
judicial activism and judicial overreach is a thin one…A takeover of the
functions of another organ may become a case of over-reach”
- Dr.Manmohan
Singh
“The role of the judiciary in
contemporary times has undergone a significant transformation, moving from its
conventional function of dispute resolution to a more participatory and
proactive role in response to the evolving needs of society. Beyond its primary
task of adjudicating disputes, the judiciary also performs several critical
constitutional functions, including interpreting the Constitution and other
laws, safeguarding citizens' fundamental rights, and acting as a guardian to
monitor and prevent constitutional violations by other branches of government.[47]”
“Under the constitutional framework,
the judiciary is vested with extensive powers to fulfill these
responsibilities. These powers encompass issuing writs, hearing petitions under
special leave, and other innovative mechanisms that have expanded the judiciary's
scope. For instance, the evolution of Public Interest Litigation (PIL) from a
mere theoretical concept to a robust procedural tool highlights this
progression[48].
However, the expansion of judicial powers and their application in diverse
areas have sparked debates about the judiciary’s growing influence. This shift
has placed the judiciary in a prominent position, often impacting the dynamics
of national governance. Its enhanced role now permits interventions in areas
that were traditionally beyond its reach.”
“An examination of the Supreme
Court’s approach over the past five decades reveals a fluctuating trajectory
influenced by factors such as the political climate and the strength of other
state organs. While some judicial pronouncements have promoted public welfare
by protecting individual freedoms and ensuring accountability of the
legislature and executive, others have faced criticism for overstepping
constitutional boundaries and encroaching upon domains reserved for other
branches of government.”
“The judiciary’s transition from a
moderate institution to one with an "activist" and, at times,
"super-activist" stance has faced criticism from various quarters.
Instances of judicial activism crossing into judicial overreach have raised
concerns about the intentional expansion of judicial authority under the
pretense of activism. This phenomenon, often termed "Judicial
Overreach," has emerged as a contentious issue, particularly when compared
to the earlier philosophy of "Judicial Activism."”
“It is widely acknowledged that
despite continuous legislative efforts, the volume of law may never fully
address the ever-changing demands of modern society. The legislative gap may
arise due to oversight, lack of awareness, or indifference. In such situations,
courts sometimes engage in judicial law-making, thereby stepping into the
legislative domain. This practice, while addressing societal needs, also raises
concerns about the separation of powers.”
“The Constitution has delineated
clear boundaries for the Legislature and Judiciary to preserve their respective
autonomy. Articles 121 and 211 prohibit legislative discussions on the conduct
of judges, while Articles 122 and 212 prevent courts from questioning the
internal proceedings of legislatures. Similarly, Articles 105(2) and 194(2)
grant legislators immunity from judicial interference concerning their speech
and voting rights within legislative proceedings.”
“Judiciary's expanding role has
occasionally invited criticism from both the executive and legislative branches
for allegedly overstepping its constitutional limits. In the Aravali Golf
Club[49]
case, the Supreme Court acknowledged instances where the judiciary had exceeded
its mandate, encroaching upon the executive's domain. The bench, comprising
Justices A.K. Mathur and Markandey Katju, warned against unchecked judicial
activism, cautioning that persistent overreach might provoke political interventions
to curtail judicial powers or independence.
Notable examples of judicial
overreach illustrate instances where the judiciary has ventured into
policy-making, an area constitutionally reserved for the executive and
legislature. While judicial review is essential for evaluating the
constitutionality of laws and executive decisions, it sometimes creates
friction between the judiciary and the other branches of government. Such
tension, although natural and occasionally necessary, underscores the importance
of maintaining a delicate balance between the three pillars of democracy.”
CONCLUSION
The evolution of the judiciary's role
in India reflects its pivotal position in upholding constitutional values,
balancing powers among state organs, and addressing societal needs. While the
judiciary has admirably safeguarded fundamental rights and acted as a check on
executive and legislative overreach, its growing assertiveness has also raised
concerns of judicial overreach. Instances of judicial activism transforming
into an intrusion into the executive or legislative domain highlight the
delicate balance required to maintain the separation of powers enshrined in the
Constitution.
Judicial review, as a cornerstone of
constitutional governance, ensures that all state actions align with
constitutional mandates. However, the judiciary must exercise restraint,
adhering to the principles of judicial propriety and constitutional spirit.
Unwarranted encroachments risk undermining the democratic framework and eroding
public trust in the judiciary. The constitutional boundaries established under
provisions like Articles 121, 211, 122, and 212 must be respected to preserve
institutional integrity and the doctrine of separation of powers.
The tension between judicial activism
and overreach underscores the judiciary’s responsibility to act within its
constitutional mandate. While judicial interventions have often bridged
legislative gaps and upheld justice, excessive involvement in policy matters
can disrupt the delicate equilibrium between governance and accountability. The
Aravali Golf Club case serves as a pertinent reminder of the perils of
unchecked judicial activism, cautioning against overstepping constitutional
limits.
Ultimately, the judiciary's transformative
journey must be guided by a commitment to constitutionalism and the rule of
law. By upholding its role as a guardian of constitutional values without
venturing into domains reserved for other branches, the judiciary can foster a
harmonious balance between authority and accountability. This balance is
essential for sustaining a vibrant democracy where governance is conducted
within the framework of the Constitution.
[3] Quoted in "A Constitution; what it is and what
it signifies" by P. Jagmohan Reddy in Essays on Constitutional Law Ed. by
V. Venktaramanaiah (1986) P145.
[4] Constitutional Law by Wade & Phillips (Seventh
Ed) P.1. In Dicey's views the word "Constitution" means &
includes "all rules which directly or indirectly affect the distribution
or the exercise of sovereign power in the State" See the Law of the
Constitution by Dicey, A.V. 1959 P.23.
[5] Thomas Paine was a great advocate of written
Constitutions. He categorically said that where a Constitution "Cannot be
produced in a visible form, there is none". See Select Constitutions by
Kapoor, A.C. (1993) P2.
[10] Constitutional Faith by Levinson, Sanford (1988) P39.
Meese made this distinction while delivering a speech at the Tulane Law School.
[11] The American Constitution: Its Origin and Development
by Kelly, Harbinson & Belz (1983) P (XV); (Also see Democratic Government
and Politics by Carry & Hodgets P.85.
[14] Austin, Granville, The Indian Constitution:
Cornerstone of a Nation (Oxford University Press, 1966).
[15] Nehru, Jawaharlal, Objective Resolution Speech,
Constituent Assembly Debates, December 13, 1946.
[17] Originally it had 395 articles & eight schedule.
Today it has 444 articles, 26 parts & 12 schedules after the Constitution
74th (Amend.) Act, 1992.
[18] Explaining the reason for not opting for Amercian
presidential type of Government, Dr. Ambedkar said in the Assembly that "....
the daily assessment of responsibility which is not available under the
American system is far more effective than the periodic assessment." &
further the draft Constitution in recommending the parliamentary system of
executive, had preferred more responsibility to stability. CAD Vol.VIII PP 32 -
33.
[47] “The range of judicial review recognized in the
superior judiciary of India is perhaps the widest and most extensive known in
the world of law. See Pathak CJ. In Union of India v. Raghubir Singh (1989) 2
SCC 754 at 766.”
[48] P.P.Craig & S.L.Deshpande, Rights, Autonomy and
Process: Public Interest Litigation in India? 9 Oxford Journal of legal Studies
356 (1989).”
Article Information
JUDICIAL REVIEW AND LEGISLATIVE INTENT: A CONSTITUTIONAL PERSPECTIVE
Authors: HARSHPREET KAUR
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/02/28
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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