“JUDICIAL REVIEW AND FUNDAMENTAL RIGHTS AS FEATURES OF CONSTITUTIONALISM” By - Dr. Charu Srivastava
“JUDICIAL
REVIEW AND FUNDAMENTAL RIGHTS AS FEATURES OF CONSTITUTIONALISM”
Authored By
- Dr. Charu Srivastava
[Assistant
Professor Upes School Of Law]
Csrivastava@Ddn.Upes.Ac.In
ABSTRACT
“Within limits, no Judge, and no Supreme
Court can make itself a third chamber. No Supreme Court
and no judiciary can stand in judgment over the sovereign will
of Parliament representing the will of entire community……if it comes in the way,
ultimately the whole Constitution
is a creature of Parliament.”
Shri Jawaharlal Nehru[1]
A “constitution”
consists of a set of rules that defines the limits of the government, power
and
authority. It
embodies human values, cherished principles, and spiritual norms[2].
The author in the present submission attempts
to analyze and investigate the
conceptual context of the term constitutionalism, followed by the narration of its most important features i.e. Fundamental Rights and Judicial Review. The
subsequent aspect deals with the further detailed
elaboration of Fundamental Rights and Judicial Review, their origin and how the functioning
of the government can affect the freedom given to an individual
and then how far the subsequent actions taken by the Judiciary are justified about the protection of those fundamental Rights.
In analyzing the two aspects i.e. Fundamental Rights and Judicial Review, the author attempts to discuss how far the concept of constitutionalism
is adopted by
India.
Keywords: Judicial Review, Constitution,
Constitutionalism, Fundamental Rights, Supreme Court
INTRODUCTION
A constitution is “[a] charter of government deriving its whole authority from the governed”.[3]
The constitution sets out the form of the government. It specifies
the purpose of the government, the
power of each department of the government, the state-society relationship, the relationship between various governmental institutions,
and the limits
of the government.
However, constitutionalism is the view that the authority of the government depends on its observance of these legal restraints. It is frequently connected with John Locke's political theories and those of the "founders" of the American republic. Constitutionalism is the restriction of the executive branch by constitutional legislation. Constitutionalism also means a balance between the authority of the government and the rights of individuals.[4]It means a government as opposed to an arbitrary rule; a government limited by constitutional rules.[5]
The absence of meaningful
restrictions,
therefore, made it almost impossible for many countries to practice constitutionalism.[6]
DEFINING CONSTITUTIONALISM
Constitutionalism
recognizes the need
for the government but insists upon
limitations being placed upon
governmental powers. Limited
govt. is the central point of constitutionalism.[7] It is the antithesis of
arbitrary powers
[8]
The idea of constitutionalism is the necessity to create constitutions that are not just programmatic; fictitious or ornamental papers that might be readily manipulated by politicians, but rather texts that can foster respect for the rule of law and democracy. But it's important to separate constitutionalism from both democracy and the rule of law.[9]
The most recent
literature on the topic suggests that
a no of elements can be identified as
the core elements of constitutionalism but as per the
scope of the topic the author
is going to discuss the following two elements:
i) the recognition and protection
of fundamental rights and freedoms,
ii) the review
of the constitutionality of
laws
1) FUNDAMENTAL RIGHTS
“Fundamental rights should be such that they should not be liable to the reservation
and to changes by Acts of
the legislature”
In a much narrower sense, the Fundamental accord certain freedoms to the individual,
such as the right to life, liberty,
freedom of speech and so on.[11]The
basic aim of fundamental rights is to impose fetters on the states and establish
a limited government. That has been called a government of laws not of men.[12] It is to preserve certain basic
human rights against
interference by the State.[13]
? IN U.S.A.
Ever since the
halcyon
days of the French revolution
and the declaration
of rights of Man, the concept of the bill of rights,
constitutionally defined and guaranteed, has become an article of faith for liberalism. The Supreme Court of U.S. A. observed in the same vein that “the very purpose of
the Bill of Rights is to withdraw
certain subjects from the
vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and establish
them as legal principles
to be applied by the Courts.[14]
The Americans framed a Constitution to safeguard themselves from the tyranny
of the executive and legislature. These rights act as great safeguards against the so-called tyranny of the majority
or the dictatorship of a single
party
and afford considerable protection to minorities. In America, the Bill of Rights was introduced in 1789 by the first ten amendments initially it was thought that there was no need for a bill of rights against the local/state government as they were representative
of the local people (in a democratic form of Government). But gradually it was realized that state governments could also violate rights. For instance in a famous case i.e. the
red
Scott case, a Federal Government was favor of abolishing slavery but the State
Governments opposed it. The Federal Government made a law abolishing slavery
against which the State Governments appealed in Supreme Court. The Supreme Court in the famous Dred
Ccott Case held that the property could not be taken away without
compensation and as slaves were property, slavery could not be abolished. This led to a civil war in the U.S.,
as a result of which
Abraham Lincoln
came to power and in 1864 by Amendments
13, 14, and 15,
slavery was finally abolished.
Fundamental
Rights
are
now guaranteed
against the State Government
also.[15]
Furthermore, the U.S. Constitution Bill
of Rights enumerates the rights guaranteed to Citizens and others. Like things, no rights can be absolute. The
Courts in the U.S. have
gradually evolved, in the face of necessity; the restriction
can be imposed on the exercise of these
rights. Moreover, regarding
the Suspension of fundamental rights, the constitution of the U.S.
does not any
legal sanction. The rights provided under
the American “Bill of
Rights”
are binding
on the executive
as
well as Legislature.
? IN INDIA
Fundamental Rights are
an
important principle
for promotion of the principle
of Constitutionalism. [16]
The idea of fundamental rights in India originated in the 19th Century,
though there was no bill of rights before the adoption of the Constitution.[17]
The Magna Carta of England, the Declaration of Rights of Man and Citizens (France), and the U.S. Bill of Rights served as models for the framers of the Indian Constitution. The Constitution's declaration of Fundamental Rights acts as a reminder to the ruling government that certain liberties guaranteed to the populace by the Constitution must be protected.
According to the Indian Constitution, the Fundamental Rights are express constitutional provisions that limit legislative power and regulate the temporary will of a majority by a permanent and supreme law decided by the deliberate wisdom of the nation. They are not simply meant to be pious declarations of certain principles.[18]
The Fundamental
Rights,
in
the Indian Constitution have been grouped
under seven heads
as follows:
i. Right to Equality comprising Art. 14 to
18.
ii. Right to Freedom comprising Art. 19 to
22 which guarantees several freedoms.
iii. Right
against Exploitation consists
of Art. 23 and 24.
iv. Right to Freedom of Religion is
guaranteed by Art.
25 to 28.
v. Cultural and
Educational Rights are guaranteed
by
Art. 29 and 30.
In I.R.
Coelho (Dead) By LRs. v. State of Tamil Nadu
and Ors.[19]
the Supreme Court took the view that the Constitution is a living
document. and be construed having regard to the march of time and the development of law. Furthermore, the Hon?ble Supreme Court also held that “The constitutionalism or constitutional system of
Government abhors absolutism -
it is premised
on the Rule of Law in which subjective
satisfaction
is substituted by objectivity provided by the provisions of the Constitution itself.”[20]
In Indra Sawhney and Ors. v. Union
of India (UOI) and Ors. [1992 Supp
(3) SCC 212] the court
opined:
On one hand, our judiciary
elicits such intellectual responses
that
“Faith in the
judiciary is of prime importance. Ours is a free nation. Among such people, respect for law and belief in its constitutional interpretation
by courts require an extraordinary
degree of tolerance and cooperation for the value of democracy
and
the survival of constitutionalism.”
Moreover also the
case of
S. S. Bola v. B. D.
Sardana [(1997) 8 SCC 522], the
court opined:
“A good and virtuous constitutionalism having moral foundation
protects not only
fundamental freedoms but also creates a bridge
between conflicting interests and becomes a harbinger to the
social needs and produced good legislators and good
citizens. The constitutional Courts as a sentinel on the
qui vive, therefore,
function objectively and dispassionately to correct imbalances and keep a check on every wing of the State without trespassing upon the field assigned or powers conferred upon the other wings and at the same time maintain
a delicate balance on even keel”.
The most important scheme for the promotion of constitutionalism was laid down by the court in the Maneka Gandhi
v. Union of India[21] as a seminal principle of constitutional interpretation
which is that there
cannot be
a mere textual construction of
the words of the Constitution. Those words have meanings that unfold when different situations arise.
Furthermore, Bhagwati J. said,
“The procedure in Art. 21 must be “right and just and fair?
and not arbitrary, fanciful or
oppressive, otherwise,
it would be no procedure at all and the
requirement of Art. 21 would not be satisfied. The expression “procedure established by
law” extends both to substantive as well as procedural law. A procedure not fulfilling these attributes
is no procedure at all in
the eyes of Art. 21”.
In L.Chandra Kumar v. Union of India and Ors.[22], Chief
Justice Ahmadi, after an analysis of different decisions of this Court,
affirmatively held that judicial review is one of the basic features of our Constitution. Such a finding of this Court means that there cannot be an administrative review of a decision taken by a judicial or a quasi-judicial authority
which has the trappings of a court. Since judicial review has been considered an intrinsic part of
constitutionalism, any
statutory provision which provides for administrative review of a decision
taken by a judicial or a quasi-judicial body
is, therefore, inconsistent with the aforesaid postulate
and is unconstitutional.
Thus Fundamental rights impose limitation on the powers of the legislatures. All laws
whether made by
the legislature or by a delegated authority and all executive acts must respect and
conform to the fundamental rights.
2. JUDICIAL
REVIEW AND CONSTITUTIONALISM
The constitution is only
as
good as the mechanism provided
within it for ensuring that its provisions
are
properly implemented and that any
violations of it are promptly
sanctioned. An important bulwark of constitutionalism is therefore the existence of an efficient and effective mechanism
for controlling and compelling compliance with the letter and spirit of the constitution. In the
absence of this, the constitution is not worth the paper on which it is written and is probably as
good
as being non-existent. Besides this, it is the only way in which the supremacy
of the
constitution, which all these constitutions explicitly
or implicitly provide for, has meaning.
The
proper position of the Judiciary and its review power is to be understood
only in the light of the governmental
structure adopted by the framers of the constitution.
? CONCEPT
Literally,
the
notion of judicial review means the revision of the decree or sentence of an inferior
court by a superior court. Judicial review has a more technical significance in public law, particularly in countries having a written constitution which is founded on the concept of
limited government. Judicial review in this case means that Courts of
law have the power of testing
the validity of legislative as well as other governmental actions concerning the provisions of
the constitution.
The doctrine of judicial review has been originated and developed by
the
American Supreme Court,
although there is no express provision in the American Constitution for judicial
review. In Marbury v. Madison[23], the Supreme
Court made it clear that it had 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”.
? ORIGIN
Despite the modifications that it has undergone
in other countries Judicial Review
remains
basically and Fundamentally an American
institution. It
is undoubtedly an American contribution to the art of government. Judicial review an imperative tool
for developing the judicial system was evolved by
the American courts for the very first time in Marlbury v.
Madison[24]. This case laid
down the judicial foundation
of „judicial
review? under a written
constitutional law.
In this case, Marbury, who was appointed and confirmed as a justice of the peace
for
the District of
Columbia, did not receive his judicial commission when there was a change
of administration in favour of President Thomas Jefferson and his secretary
of State, James Madison. Marbury sued Madison in the Supreme Court for the delivery of his judicial commission. He asserted that the Supreme Court
had “original jurisdiction? to entertain the action under the Judiciary Act, of
1789, passed by
Congress. The Court read the Act as granting it original jurisdiction, but it read the
Constitution as denying Congress the authority to make such a grant. Chief Justice John
Marshall stated that it is, emphatically, the province and duty of the judicial department, to say what the law
is. Those who apply the
rule to particular cases, must of necessity expound
and interpret that rule. If
two laws conflict with each other, the court must decide
on the operation of each. So, if a law be in opposition to the constitution, if both the law and the constitution apply to a particular
case the court must either decide that case, is conformable to the law, disregarding the constitution; or conformable to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case: this is of the very essence of judicial duty. If then,
the courts are to regard the constitution, and the constitution, and not such ordinary act, must
govern the case to which
they
both apply.
? BASIS OF REVIEW POWER OF THE JUDICIARY:
The power of judicial review is explicitly
provided for in India in the context of the federal
structure with defined and delimited competence of the central and state legislatures. It is based
on the assumption that the laws made by
the competent legislatures must be in accord with the
detailed scheme of distribution
of powers embodied in the
seventh schedule
to the constitution.
Further, and what is more significant, the incorporation of a chapter on fundamental rights, with
guaranteed provisions for their enforcement through the Supreme Court[25] and the High Courts,[26]
invites Judicial review most decisively, and the State, including the Government and Parliament of India and the
Government and legislatures of each states and all local or
other authorities within the territories of India”, [27]shall not make any
law which takes away
or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be
void.[28]
The judicial review process must
justify Constitutional principles, which govern the
appropriate exercise of
public power in any democracy.[29]It is frequently noted that judicial review is fundamentally a bad, constrictive, and undemocratic idea. But at best, this viewpoint is selective and biassed. It is important to keep in mind that judicial review, like the constitution itself, affirms as well as negates; it performs both the function of releasing power and the function of breaking it while evaluating the concept of judicial review in a fair, logical and balanced manner.
CONCLUSION
To dispose of the current controversy is one that is bound to arise in
systems where there are coordinate organs of government as in India where such
controversies arise frequently.
The primacy of parliament in
India is an unquestionable and half-hearted compromise between judicial
supremacy and parliamentary supremacy in a predominant parliamentary form of
government.
The constitutional system is positively protected by the rule of law. The major purpose of
judicial review is to strike a balance between administrative and legislative restraints.
One of the essential elements in putting the Constitution's spirit into practice and preserving it is
judicial review. Together, an independent judiciary, independent constitutional review, and the
idea of the supremacy of law ensure that a constitutional government operates by both the letter
and the spirit of the constitution.
BIBLIOGRAPHY
ARTICLES
1. Alpheus Thomas
mason, “Understanding
the
Warrant Court: Judicial Self-restraint and
Judicial Duty”,
December EPS Quarterly,
532 (1996).
2. Charles M. Fombad, “Challenges to Constitutionalism and Constitutional Rights in Africa and
the Enabling Role
of Political Parties:
Lessons and Perspectives from Southern Africa”, 55
AJCL 6 (2007)
3. Giovanni Sartori, “Constitutionalism: A Preliminary Discussion”, 56 Am. Pol. SC Rev. 853
(1962)
4. Justice Syed Shah Mohammed Quadri, “Judicial Review of Adminstrative Action”, 6 SCC
(Jour) 1 (2001)
BOOKS
1. B.N. Cardozo,
The Nature of Judicial
Process, 94 (Universal Law publishing Co. Pvt. Ltd.,
2004)
2. Barry R. Weingest and Donald A. Wittman, The Oxford Handbook of Political Economy,
289 (Oxford University Press, London)
3. Brij Kishore Sharma,Introducton to Constitution of India, 67 (PHI Learning Private Limited, New
Delhi, 6th edn. 2011)
4. Dr.
Durga Das
Basu, Comparative Constitutional Law,407 (LexisNexis
Butterworths
Wadhwa, Nagpur, 2nd Ed, 2010)
5. Jeffery Jowell anf The Rt Hon The Lord Woolf, Principles of Judicial
Review, 15 (London
Street & Maxwell 1999)
6. Keeneth Wheare, Modern
Constitutions, 137 (Oxford university Press, London, 1966)
7.
M. P. Jain, Indian
Constitutional Law, 6 (Wadhwa Publications,
Nagpur,5th edn, 2006)
8. M.P. Jain and S.N.
Jain, Principles of Administrative Law: An Exhaustive Commentary on the
Subject Containing Case-law Reference (Indian & Foreign) 1779 (Wadhwa and Company
Nagpur,
New
Delhi, 6th edn
2007)
8. P. Sarojini Reddy, Judicial Rewies of Fundamental Rghts, 7 (National Publishing House,
Jaipur,
1976)
10.Prof. Narender Kumar, Constitutional Law of India, 68 (Allahabad Law Agency, Delhi, 6th
Ed., 2007)
11.S.N.Ray, Judicial Review and Fundamental Rights, 126 (Eastern Law House Calcutta. 1974).
INTERNET RESOURCES
1. Varun ChhaChhar and
Arun Singh Negi, Constitutionalism-
A
Perspective, available at:
[1] Constitutional Assembly Debates, 1195 Vol. IX, No.31.
[2] Bachan Singh v.
State of Punjab AIR 1982 SC 1325.
[3] Black?s Law Dictionary.
[4] Varun ChhaChhar and Arun
Singh
Negi, Constitutionalism- A Perspective,
available at:
[5] Keeneth Wheare, Modern Constitutions, 137 (Oxford university Press, London, 1966).
[6] Charles M. Fombad, “Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling
Role of Political Parties: Lessons and Perspectives from Southern Africa”, 55 AJCL 6 (2007).
[7] Barry R. Weingest and Donald A. Wittman, The Oxford Handbook of Political
Economy, 289 (Oxford University
Press, London).
[8] Giovanni Sartori, “Constitutionalism: A Preliminary Discussion”, 56 Am. Pol. SC Rev. 853 (1962).
[9] Supra Note 6
[10] Constitutional Asembly Debates, 264 Vol. VII, 1948.
[11] Lakshmindra v. The Commissioner, Hindu religious Endowments, AIR 1952 Mad 613.
[12] Brij Kishore Sharma,Introducton to Constitution of India, 67 (PHI Learning Private Limited, New Delhi, 6th edn.
2011).
[13] Prof. Narender Kumar, Constitutional Law of India, 68 (Allahabad Law Agency, Delhi, 6th Ed., 2007).
[14] West Virginia State Board of Education v. Barnette, (1943) 319 U.S. 624.
[15] (1857) 60 US 393.
[16] M. P. Jain, Indian Constitutional Law, 6
(Wadhwa Publications, Nagpur,5th edn, 2006).
[17] P. Sarojini Reddy, Judicial Rewies of Fundamental Rghts, 7 (National Publishing House, Jaipur, 1976).
[18] S.N.Ray, Judicial Review and Fundamental Rights, 126 (Eastern Law House Calcutta. 1974).
[19] AIR 1999 SC 3197
[20] Rameshwar Prasad and Ors.
v. Union of India (UOI) and Anr. (2006) 2 SCC 1.
[21] AIR 1967 SC 1507.
[22] AIR 1997 SC 1125.
[23] (1803) 1 Cranch 137.
[25] Article 32 of The Constitution of India
[27] Article 12 of The Constitution of India
[28] Article 13 (2) of The Constitution of India
[29] Jeffery Jowell anf The Rt Hon The Lord Woolf, Principles of
Judicial Review, 15 (London Street
&Maxwell (1999)