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JUDICIAL ACTIVISM AND JUDICIAL INTERVENTION IN INDIA IN TERMS OF JUDICIAL REVIEW- A CRITICAL ANALYSIS BY – ANANYA KUMARI MEHTA
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JUDICIAL ACTIVISM AND
JUDICIAL INTERVENTION IN INDIA IN TERMS OF JUDICIAL REVIEW- A CRITICAL ANALYSIS
AUTHORED BY –
LL.M.,SESSION- 2022-2023
N.O.Institution- Chankya National Law University Patna
The closing strength is vested in the
judiciary to keep the test and stability between the three organs of the
government.
We adhere to the rule of law in
India, which holds that the constitution is the best law of the United States
of America and that any laws that clash with it are unconstitutional. A judge
has the power to declare something unconstitutional and invalid when they find
that a law, executive order, or other respectable action breaches the written
constitution.
Using the tool of judicial review,
one of the powers granted to the court is to certify the validity of
legislative and judicial acts.
Basically, the strength of judiciary
is exerted to have a look at the constitutionality of motion of the legislature
and executive.
Judicial Review refers to the
Judiciary's authority to study the Constitution and void any applicable law,
legislative order, or presidential order. If it discovers that they do now not
comply with the Indian Constitution.
Judicial overview serves two
essential purposes, such as legitimising authorities motion and defending the
regulation from any immoderate authorities intrusion.
Keywords: Judiciary to review, Judicial
Review, power of Judiciary, constitution of India, government action
“Judicial review…can be characterised
as the rule of regulation in action…” Introduction
"It is emphatically the province
and obligation of the judicial department to mention what the law is. Those who
study the guideline of thumb to particular cases, have to of necessity expound
and interpret that rule. If prison
recommendations conflict with each other, the courts need to parent out at the
operation of each."[1]
-
“Chief Justice John Marshall”
The governing
rule embodies judicial
adjudication. It is
the courts that
judge the habits
of the legislative
and administrative bodies.
He is also credited with redefining
the judicial movement
with the help
of superior judicial
authority. The court
must consider the
legitimacy of any
agreement or attempt,
whether it is
prison or not.
This is the concept of the rule of law. Judicial review is a test and a stabilizer for maintaining separation of
powers. The separation
of powers is the basis for jurisdictional control, because
of the unusual
separation of powers
between our three
legislative, administrative and judicial branches.
The division
of powers describes
the scope of judicial review. The
illegal and unenforceable
declaration of any
regulations or ordinances
that contradict or
conflict with the
traditions or fundamental
foundations of the
Constitution of India
is a magical weapon in the hands of the courts. The two basic principles of
judicial expertise are
"limited government theory" and "constitutional
supremacy with the
requirement that the
Constitution be checked
on a daily basis".”[2]
As guardian of the Constitution, the
Supreme Court of India has the power to declare any central or national action
or any administrative order in violation of the principles of the Constitution
as super. bacteria. The power of the judiciary in monitoring legal directives
from the legislature or government to determine their constitutional validity
is well known. such as “The doctrine of judicial supervision”.[3]
America is the first home of Judicial
Review. It was an established development in America. In the well-known case of
Marbury v. Madison (1803)[4] “Chief Justice
John Marshal of
the United States
tacitly emphasized that
the Court has
the power to declare law or legal directives of
the board to be supreme. Marshal
asserted that this
form of court
sanction comes from
the famous "Due
Technique of Law"
clause of the
US Constitution. One
of the Declarations
of Rights of the United States Constitution is that
"No man or
woman shall be
deprived of life,
liberty, or property
except by a system of laws.”.
There is no judicial review in the
UK. England has a verbal constitution. The British Parliament is the supreme
body. The Chief MP and the MLA are merged and the Cabinet is headed by the
Prime Minister ensuring the best cooperation between Parliament and the
Government. therefore, judicial expertise is not necessary. Judicial valuation
is an essential stage of the Indian Constitution. similarly, the scope of
judicial review in India has not always been as extensive as in the United
States. Since the Constitution of India is the longest written charter in the
world, judicial review is limited in India. In India, the indispensable rights
have limited the scope of judicial review because there is a very important
difference between the two provisions in each of the American and Indian
charters, due process of the Constitution. United States law and "the
procedure is bound by law". of the Constitution of India. Article 21 of
the Constitution provides that "no man or woman shall be disadvantaged in
his private way of life and his right to freedom"”[5] freely
but not according to the technique established by law.” The "law"
period set forth in the charter of India no longer proposes the regulation of
herbal medicine but rather covers national law.
Chapter 2- Judicial Review
1.1 Meaning of Judicial Review
Legally speaking, national
constitutions serve as the ultimate law of the land and the source of all other
secondary norms, including statutory laws, executive orders, and ordinances.
Several judicial entities (courts or
special constitutional tribunals) are asked to declare the contested
legislation unlawful when these secondary norms violate the constitution. Only
this process is subject to judicial or constitutional scrutiny.
So, under a constitutional form of
government, the term "judicial review" refers to the job done by the
judiciary. The work associated with the two elements that make up this specific
activity may be further analyzed as follows:-
The definition of
"judicial" is: relating to or denoting a decision made by a court of
law; having the role of a judge or making judgments; making a determination or
judgment about something; a) A review is a judgment, and
b) The process of reviewing something
once again with the intention of fixing or enhancing it; a sentence being
changed by a different court or authority; an investigation; a broad
examination or reexamination of a topic or item; a review of the previous
activities in the past; A subsequent or repeated look.
"The ability of the court to
hold unconstitutional any statute or official action that it considers to be in
contradiction with the fundamental law, or the Constitution," is the
definition of judicial review. 3
Judicial review is defined as
"the authority of any court to rule unconstitutional and consequently
unenforceable any statute, any official action based upon it, and any criminal
activity by a public official that it considers to be in contradiction with the
Basic Law" by Professor Henry J. Abraham.
A review is often defined as a second
inspection or examination of something with the goal of fixing or enhancing it.
It implies that there is something that has previously been done by another
party that needs to be corrected or improved.
So, under a constitutional form of
government, the term "judicial review" refers to the job done by the
judiciary. The work associated with the two elements that make up this specific
activity may be further analyzed as follows:-
(a) The definition of
"judicial" is: of or pertaining to a decision made by a court of law;
having the role of a judge or making judgments; making a determination or
judgment about something; what constitutes sound judgment, and
(a) The term "review"
refers to the process of going through something once more in order to make
corrections or improvements; a sentence being changed by a different court or
authority; an investigation; a broad examination or reexamination of a topic or
item; a review of the previous activities in the past; A subsequent or repeated
look.
Evolution and History of Judicial
Review
In the early years of government,
justice in England was a private business. Due to their land holdings, certain
landowners organized themselves into private courts known as Hundreds, Shires,
and Boroughs to administer justice to those residing within their spheres of
influence. For a very long time, only private institutions handled other issues
of social concern.
The way government was run completely
changed with the arrival of the Normans. First, the King assumed private
citizens' property ownership; second, because the King owned the whole realm of
England, he was responsible for administering justice through his officials.
The Monarch first created a set number of regular courts. Some cases that were
formerly handled by private courts were allocated to these courts. Then the
courts were founded to protect the royal interests in the exercise of the royal
prerogative. Later, several other administrative issues impacting the King's
interests were transferred from private organizations to public authority.
Throughout time, the superior courts'
system of judicial review disintegrated into several legal branches. The
guiding principles of the control that had to be conducted were crucial factors
in the administration system.
As a result, a significant number of
issues were removed from the purview of private organizations, necessitating
the development of a framework to ensure that the different public
administration institutions operated within their respective purviews. In this
case, the superior courts took the lead and established a system of control.
Exercise of their own authority over
certain things. They argued that under the new administration's structure,
topics that had previously been within their purview no longer came under their
purview. This summarizes the system of judicial review of administrative
action's historical basis.
Throughout time, the superior courts'
system of judicial review disintegrated into several legal branches. The guiding
principles of the control that had to be conducted were crucial factors in the
administration system.
Later on the doctrine of judicial
review can be traced back from the United States of America in the case of Marbury
Vs. Medison Whereas different charter of the world developed the
thought in the course of 18th century. In Indian judicial gadget the thought of
judicial overview is primarily based on the Rule of law. In India Since, Govt.
of India Act 1858, viz-viz Indian Council Act 1861 imposed numerous
restrictions on the strength of Governor General in council in evading legal
guidelines as there had been no provisions for judicial review. The Court has only power to implement those
laws. In 1877 Emperor Vs. Burhah[6]
was the first case whereby the court docket interpreted as nicely as originated
the notion of judicial evaluate in India. In this case the court docket
dominated that the birthday party turn out to be aggrieved through the
legislation, he has the proper to task the constitutionality of the act enacted
by way of the Governor Council in get right of entry to of the electricity
conferred upon him by using the imperial parliament. The excessive court docket
and privy council has adopted the view the Indian Courts has energy to
assessment the legislature with some limitations.
Again in, Secretary of State v.
Moment [7]
Lord Haldane observed that “the Government of India cannot by legislation
take away the right of the Indian subject conferred by the Parliament Act i.e.
Government of India Act of 1858”.
In another case, Annie Besant
v. Government of Madras,[8] though,
the predominant components of the charter of India has been browed from
Government of India Act, 1935, the stated act had no provisions pertaining to
to Judicial Review which motive issues to the court docket and necessitated the
adoption of Judicial review. Hence, the Constitution of India explicitly point
out the Doctrine of judicial evaluate
vide its Art. 13, 32, 131-136, 137, 143, 226, 227, 245, 246, 372.[9]
1.2 Judicial Review in India
Indian Constitution is the blend of
ideas of several constitution of the world. The impotence of the Indian
Constitution as explained by H.C.L. Merrilat, [10] he stated
that "it shows
the union of the British parliamentary
system where the
executive is accountable
to the legislature
and the constitution
is written on
the American model,
including the declaration
of human rights
and the separation
of powers and
the principles of
law." federal rule
by dividing power
between the center
and the federation.”
units, leading to
a unique constitutional
position in judicial
review in India.”
Regulatory supremacy is the spirit of
the Indian Constitution. In India, "the doctrine of trial" is the
main structure of the Indian Constitution. It is mainly based on the idea of
??the rule of law. Although the doctrine of judicial oversight is neither
described in the Constitution of India nor implicitly emphasized, it is the
fundamental stage of the Indian Constitution of India. Judicial oversight, in
the Indian constitution, has been added to tighten checks and balances among
the three bodies, namely the legislature, the judiciary and the executive.
Various provisions of the Indian
Constitution explicitly mention about the judicial review to the court such as
Articles 13, 32, 131- 136, 137, 141, 143, 226, 227, 245, 246, 372.
The most prominent goal of judicial
expertise is to protect citizens against abuses of power by the legislature or
the executive. The man or woman is treated simply and honestly. The simple
basis of judicial review is to assert the alleged right of an event in order to
mitigate other unpleasant facts by declaring the enactment of the legislature
null and void. But, the real purpose is to serve something greater, which is
that no law unconstitutional should be enforced with the aid of the courts.[11]
The Constitution of India, like many
other written statutes, provides for the "separation of powers" among
the three organs of the constitution. There is no body that fights the forces
as much as the various organs endowed with them. The doctrine of separation of
powers mentioned in its inflexible part holds that each body of the
constitution, namely the legislature, the government, and the judiciary, must
operate on the strength of the themselves within the individual and there is no
conflict between their activities. The Indian constitution is not about the
rigid empirical division of powers, but about equality in a flexible way that
can be easily distinguished. It is quite possible that our charter no longer
reflects the hypothesis, through a body of characteristics that in fact belong
to someone else. [12]
1.3 Constitutional Provisions regarding
Judicial Review
The father of the Constitution of
India noted the great importance of checks and balances between the three
bodies, as he stated by Lord Acton that “power tends to corrupt; absolute power
corrupts absolute” means that when an agency has absolute power, it needs
another body that can monitor its actions. In the Constitution of India,
judicial review has been noted to oversee the actions of the executive and
legislative bodies.
Article 13 and 32 of the Indian
Constitution signify the attachment of founding father with fundamental rights
enshrined in Part III of the Indian Constitution. The Hon’ble High Court and
Supreme Court have been bestowed with the power of judicial review in following
aspect.
(i)
The
Judicial evaluation potential the energy of the greater courtroom to
investigate the delegated or subordinate law in context with their
compatibility with dad and mom act. This is known as the “doctrine of extremely
vires.
(ii)
Under
the Federal Constitution, the courts are capable of confirming the concept of
the transfer of administrative power between the central government and the
provincial government. This biological potential is innate in the Synthetic
Energy Structure independent of whether that current is explicitly or surely
supplied or essentially collected. Statutory audits in this sense are
consistent with government constitutions, comparable to those of the United
States and India, and are therefore not defined by the British Constitution as
unitary and unwritten. Judicial appreciation in one-third of its most frequent
experience allows the Court to declare any action unconstitutional if it is no
longer in accordance with the fundamental principles of the law. Indian
charter. This is the essence of what was proposed by Judge Marshall and the
same is done by the Indian and American courts. [13]
(iii) The basic feature of Indian
Constitution of India is that the Supreme Court in Keshavanand Bharti Vs.
State of Kerela, [14] asserts
that the Legislature has the power to amend any phase of the Constitution of
India in addition to amending the basic form of the Constitution of India. The
Court of Honor formulated the concept of "simple structure of
doctrine" in the Constitution of India. The Legislature cannot damage the
basic function of the Constitution of India. It should be pointed out that the
one-of-a-kind judges on the bench have claimed unique core characteristics, but
the concept of judicial expertise is no longer protected on the list. Later on, in the case of Minerva Mills
v. Union of India, [15] the
“doctrine of judicial review” has been added in the list and the constitutional
amendment has been tested on the grounds of “basic structure doctrine”
the Hon’ble Supreme court struck down certain provisions (amendments) only on
the grounds of infringing the basic structure of the constitution as that
amendment has ousted the power of the judicial review of supreme court and High
Court. [16]
The necessity of courts to declare
any act or statute unconstitutional occur now not due to the fact the judiciary
is the supreme as a substitute it keep the assessments and balances amongst
legislature or govt in one hand and in any other hand affords capability to
right the errors of one and other or both. The responsibility of judiciary is
to shield the errors or the different organs and hold regulation and order in
the society.
The exercise of judicial review by
constitutional courts is not restricted but it has certain limitations. The
limitations or restrictions are covered mostly of the constitution itself. According
to D.D Basu,[17] there
are three kinds of barriers prescribed therein in the constitution-
Constitutional limitations, instrinsic issue or self- imposed limitation. The
constitution of India by way of more than a few articles excluded sure
provisions from judicial review. These are Article 31 A, 31-B study with Ninth
Schedule, 31-C, 74(2), 77(2), 105(2), 194(2), 122, 232-A, 323-B, 239(a) 359,
361-A, 363, 368 (4) and Tenth Schedule. Whereas
later on, certain articles were included in the list of judicial review. The Hon’ble court in the case of L.
Chandrakumar Vs. UOI,[18]
ruled that the judicial review is the basic feature of the Indian Constitution.
In the case of IR Coelho Vs. State
of Tamil Nadu, [19]
the supreme court considering the view taken in Keshavanand Bharti, [20] ruled
that the judicial evaluate is most essential aspect of Indian Constitution of
India and Schedule 9 can additionally no longer be alibi from Judicial review. Any
acts inserted in agenda 9 of Indian Constitution of India are concern to
judicial overview to extent it abridges crucial rights of the individuals.
In India judicial evaluation is now
not confined to the extent of charter itself instead there are various
different statute as properly which prescribe judicial evaluation like-wise
Section 114 Order forty seven Code of civil process 1908 ( hereinafter C.P.C),
part a hundred and fifteen of C.P.C, Section 397, 399 of Criminal method code (
herein after Cr.p.c). There are different provisions enshrined in the many
statutes which impliedly guide judicial evaluate in India.
Features of Judicial Review
In my opinion, India is a democratic
united states because of this that withinside the phrases of Abraham Lincon,
“Democracy is a government of the people, thru the human beings and for the
people”. In democratic usa of the us the government is administered with the
useful resource of the people. Every unmarried citizens have right to stable
vote and determine on their representatives. It is basically, one-of-a-kind
from monarchy or dictatorship, in dictatorship there may be one king who has
all of the authority of Government.”
Coming to the judicial evaluate concept, in
democratic usa except judicial overview the
democracy can't subsist. As democracy is for
the advantages of the human beings and the representatives
elected by way of the humans characterize them in
the each homes of parliament.
The regulation making energy subsist with the
legislature whereby they make the law. And the thought of
judicial assessment bestow the strength to the judiciary to
scrutinize the regulation made by means of the legislature
and if some thing observed opposite the fundamentals of the
constitution, declare that act unconstitutional.
Judicial Review of State or central
Laws
Article 13 of Constitution of India provides
judicial review. Laws made by Centre or State are subject to Judicial Review which
is inconstant with fundamental right under Part III of the Constitution.
Application of Judicial Review
The judicial review is not automatically
(Suo Motu) applied or challenged until and unless it is not challenged. It is
applied or challenged when there is question of law or rule involved and the
same is challenged.
Principal of Judicial Review
Judicial review is based upon the
principal of “Procedure established by law” enshrined under Art. 21 of the
Constitution of India or “Due process of Law” impliedly taken from the U.S
Constitution. Basically, Due process of Law means the Law must be just and
fair. It should not be arbitrary.
There are three types of Judicial
review:-
Review appertaining to Legislative
action:
The law making power bestowed upon
the legislature and the legislature are bound to comply the provisions of
constitution while making the law.
Review of Administrative action:
Administrative are the enforcement
agencies and this is a tool for exercising the discipline while implementing
the law by administrative agencies.
Review of Judicial decisions:
The judiciary is the backbone of
Indian democratic system and it cannot be ruled out to that judiciary has a
wide power among two other organs. it has power to change its descision under
Art. 137, 145, 226, 32 of the Constitution of India.
1.4 Judicial Activism in context of Rule
of Law
Judicial Activism is a dynamic
process in Indian Judiciary. The term “judicial activism” refers when the
judiciary exceeds it power; stepping in the shoes of legislature and coming
with a new rules and regulations. In another sense the law making power
bestowed upon the legislature whereas judiciary can neither make the law nor
direct to make the laws. In judicial activism not only he makes the law rather
it also tells the legislature what and how it does make laws.
For the first time Arthur
Schlesinger introduced the term “judicial activism” in a January 1947
fortune magazine article titled “The Supreme Court: 1947”[21]
According to Justice J.S Verma, Judge Supreme Court of India, “The role of the
judiciary in interpreting existing laws according to the needs of the times and
filling in the gaps appears to be the true meaning of Judicial Activism.”
The time period judicial activism can
be traced again in 1893. When Allahabad High Court choose S. Mahmud held that
the pre-condition for listening to a case would be performed solely when any
individual speaks. In the case, the beneath trial was once no longer in a role
to have the funds for a legal professional (Justice Mahmud, 1893).[22]
Judicial Activism is based on two
main theories (i) Theories of vacuum filing (ii) Theories of Social want.
(A) Reasons for growth of Judicial
Activism
It is more difficult to identify the
growth of Judicial Activism as there is not a single reasons wherein the
evolution of judicial activism takes place.
In India, Rule of Law has given the
highest place and in this way, the judicial activism derived impliedly from the
Rule of law as Rule of law has the synthesis from (i) Supremacy of Law (ii)
Equality before law (iii) Absence of
Arbitrary. The judicial activism keeps all the principle in consonance with the
rule of law.
By the way there are following
reasons which cannot be denied to the reasons of evolution of rule of law. (i)
Judicial enthusiasm, (ii) Legislative vacuum, (iii) Moral pressure on
judiciary, (iv) Near collapse of responsible government, (v) The Constitutional
provisions, (vi) Guardian of Fundamental Rights, (vii) Public confidence,
(viii) Enthusiasm of the individual players.
(B) Evolution of Judicial Activism in India
In India judicial activism mainly
taken place in the year 1950 to 2000 in broad sense, the court emphasizes over
the constitutional validity of laws affecting the fundamental rights of the
individual.
One of the land mark cases
appertaining to judicial activism is Keshavanand Bharti Case, [23] wherein
the court formulated doctrine of basic structure as the question tabled before
the Supreme Court that to what extent the parliament can amend the
constitution. Basically, the apex court by formulating the doctrine of basis
structure; overruling Golaknath Case.
The main question arose that the
court has not the power of making laws or directing to make laws whereas in the
instant situation the Apex Court outlined the concept of basic structure
doctrine limited the amending power of the legislative. The legislature can
amend any part of the constitution but he cannot abridge the fundament rights
of the people or cannot alter the basic structure of the Indian Constitution.
In this way, the court step his foot in the shoes of legislature.
Introduction of PIL and Judicial
Activism
As said there is catena of judgments,
wherein the court has not deferred himself from evolving judicial activism,
introduction of PIL in Indian history is itself an strong example of judicial
activism. It was introduce in the case
of Bangladesh as an outcome of Kazi Moklesur Rahman v. Bangladesh,[24](hereinafter
referred as “Berubari case” ) in which the matter of locus-standi
was came into consideration and later on, in the case Dr. Mohiuddin
Farooque v. Bangladesh & others, [25]. The
PIL was introduced to protect the interest of the individuals, when their legal
rights get infringed.
Problems and Criticism with Judicial
Activism
Sometimes the court abuses its
authority in the name of judicial activism and frequently combines personal
prejudice and opinions with the law. With judicial activism, the notion of the
three branches of the state's separation of powers is put to the test. Under
the guise of activity, the court frequently meddles in administrative affairs
and engages in judicial adventurism or overreach.
Problems with Judicial Review
As previously discuss in this project/
article, judicial review is the core of democratic country, there are some
problems subsist with judicial review as well.
There is some problems outline as
follows:
(i)
Excessive
use of judicial power by the judicial authority.
(ii)
The
judicial review limit the power of government; sometime cause unnecessary
intervention by the courts in the work of government.
(iii)
Unnecessary
bias on the part of judiciary.
Chapter 3. Rule of Law
1.1 Evolution of Rule of Law
Rule of law means the law regulates
everything besides the government or other authority. In democratic country the
government is chosen by the people but it runs within the sphere of law. In
simple term nothing is above than the law.
The time period rule of regulation
derives from the French phrase ‘la principe de legalite’ which capacity the
‘principal of legality’. It refers about a authorities based totally upon ideas
of regulation and now not of men. In different sense, ideas of ‘la principe de
legalite’ adversarial the arbitrary energy of the government.
The thinking of Rule of regulation is
an historic exercise and can be traced lower back at the time of historical
Greek Philosopher Aristotle or Plato round 350 BC.
Plato wrote: "Where the law is a
challenge to some other authority and has none of its own, the give up of the
state, in my view, is not far off; however, if the law is the grasp of the
government and the government is its slave, then the situation is full of promise
and men take pleasure in all the benefits that the gods shower on a
state," said Benjamin Franklin. Aristotle also advocated for the idea of
Rule of Law, stating in his writings that "law must dominate and those in
positions of authority must be slaves of the laws.".”[26]
The third principle discharges one of
the most prominent obligations, declaring the role of judiciary in enforcing
the rights of the individuals. Dicey tells mere declaration of rights in the
book would be futile until and unless there is enforcement mechanism. The
rights can be amended or abrogated without such authority. We can see a
situation in the year 1975 when the Indira Ghandhi led government proclaim
emergency in the country abrogating all rights of the individuals. Wherein it
was realizes that the absence of strong or powerful judiciary, despite written
constitution.
1.2 Criticism of Dicey’s Rule of Law
The
idea that the rule of law precludes even broad discretionary authority by the
government has gravely questioned Dicey's first principle (supremacy of regular
law as opposed to the impact of arbitrary power). The large number of statutes
that are yearly enacted by parliament or other legislatures give the president
many discretionary powers that are essential to contemporary government. It
appears that Dicey's wording could be read to oppose the thousands of rules
that are made at the discretion of delegated officials in our society. This
first principle also conflicts with the fact that many modern laws give police
the authority to hold individuals for a brief period of time based only on a
plausible suspect. This is essential for efficiency reasons. Jennings, Ivor
The second interpretation of Dicey
emphasises how everyone is equally subject to the law. A constitutional
guarantee of equality before the law may allow legislation that discriminates
between people on reasons that are deemed irrelevant, undesirable, or offensive
to be declared unlawful. Although Dicey's beliefs have long prevented the
proper understanding of administrative law, it is now impossible to dispute the
necessity of such law in a democracy. The existence of administrative courts
safeguards the person from illegal actions by public entities. Equal treatment
under the general law of the land, Dicey's second principle, may also be
contested under current legal standards. Although it is true that public
officials who commit crimes or torts are liable before the ordinary courts
(except for circumstances of nonjusticiability, such as in The Church of Scientology
v Woodward,[27]
it is not true that those public officials and private citizens have the same
rights, and are thus equal. “A tax investigator, for example, has powers which
the taxpayer does not possess”. In addition, police officers might be able to
use much greater legal authority than a typical citizen might over other
members of society.
The equality earlier than the
regulation premise has created serious troubles for the rule of law. It would
be unfair if the regulation assumed that all of us was once equal and entitled
to the identical treatment, brushing off social disadvantage. This led Hayek to
try to adapt the rule of regulation in a manner that Joseph Raz concept created
“exaggerated expectations” for it . Hayek stated: “The requirement that the
guidelines of actual regulation be prevalent does now not suggest that on
occasion one of a kind guidelines may additionally no longer follow to
distinctive lessons of humans if they refer to residences that solely some
human beings possess... Such
distinctions will now not be arbitrary; will no longer difficulty one crew to
the will of others, if they are equally identified as justified by means of
these internal and these outdoor the group”. This assertion lead Raz to allege
it was once a assurance of freedom and a “slippery slope main to the
identification of the rule of regulation with the rule of top law”. In his 1/3 definition of the term, Dicey
strongly favoured the frequent regulation standards that judges had deemed to
be the cornerstone of people' rights and liberties. Dicey was once wondering of
the imperative political liberties, such as freedom of speech, freedom of
association, and freedom of the individual. Today, it is difficult to share
Dicey's faith that the frequent regulation is the predominant criminal device
for defending a citizen's rights towards the state. First, Parliament can also
weaken frequent regulation imperative liberties and provide them a residual
character. Second, the frequent regulation does now not assurance the monetary
and social protection of the citizen. Third,
whilst ample criminal redress are crucial, a proclamation of a person's crucial
rights and freedoms can be valuable. Diceyan idea might also be in addition
criticised due to his appreciation of the “sovereignty of Parliament and the
supremacy of the rule of (ordinary) law”. Keith Mason has pointed out that
Australian parliaments may also be supreme, however they are now not sovereign.
“The rule of regulation affirms
parliament’s supremacy while at the identical time denying it sovereignty over
the Constitution.” Criticisms of Diceyan idea have lead to unique formulations
of the rule of law; however Dicey’s method nevertheless displays some of the
critical standards of the rule of law. In following his system some
commentators decide on the slim time period ‘government beneath law’ as a
substitute than ‘rule of law’. However, different writers select to outline the
rule of regulation as a "statement of constitutional and juridical
principle, a juristic reserve, an thought of a profound legality superior, and
maybe previous, to specific legislation" as an alternative than as an true
rule of regulation in itself. It is
tough to characterise exactly because, like these different excellent
negatives, peace and freedom, it on occasion suggests itself as greater of an
absence than a presence.
Assault
on Independence of Indian Judiciary
“The
millions of people who suffer are served by India. It signifies the cessation
of poverty, illiteracy, sickness, and opportunity inequity. The greatest guy of
our time has made it his mission to dry every last tear. Even if it may be
beyond our power, as long as there are tears and pain, our task is not done”.[28]
As
soon as the constitution 24th amendment was challenged in the case
of Keshavanand Bharti Case, [29]the
SC by a majority of Judgement overruled the decision of rendered in Golakhnath’s Case nad held that
the parliament has very wide power to amend the constitution subject to
abrogation of basic structure of the constitution. There is implied
restrictions contained in Art 368 to amend the constitution and the parliament
has to work within that sphere. Justice
HR khana played a pivotive role in preserving the rule of law by giving
dissenting opinion. As soon as the judgement delivered, the Indira ghnadhi led
government influenced the president and appointed Justice A.N Ray as the Chief
Justice of India bypassing four senior most judges of the Supreme Court. The
three judges resigned the post in the name of settled convention to make the
senior most judge as the chief justice of India.
Justice Ray had given dissenting opinion in favour of the Govt.in
several cases like, Bank
Nationalization case and Privy Purses case.
1.3 Habeas
Corpus Case (A Black Mark on the Rule of
Law)
In the year 1975, the Indira Ghandhi led govt. proclaim emergency and
when the people oppose the autocracy of govt. The widespread illegal detention
came into the consideration before the court laying with bunch of Heabus Corpus
petition, seeking setting aside the unlawful detention of the citizen or political
leaders all over the country. With all other high court, Nine High Court took
the notice that the fundamental rights under Art. 14,19,21 & 22 should not
be suspended, hence the petition are maintainable.
In A.D.M Jabalpur Vs. Shivkant Shukla,[30]
the Supreme Court overturned the verdicts of these High Courts but a majority
of 4:1 and he pointed out that neither detainees nor their representatives have the right to appeal to the courts for suspension of fundamental rights under habeas corpus. This decision either precluded an appeal against a lawful arrest warrant or was abusive. H. It was not issued by an authorized person or to the wrong person. The majority consisted of Chief Justice A N Ray, Justices MH Beg, Y V Chandrachud and P N Bhagwati, with the sole dissent being Justice H R Khanna.
Strong Comments have been
made in opposition to the majority judgments and the position of Justice H R
Khanna was once liked and applauded all over the world. Mr. V M Tarkunde, an
eminent legal professional and editor of The Radical Humanist, characterized
the majority judgments as “Judicial Suicide”. H M Servai, a main Commentator on
Constitutional Law and former Advocate General of Bombay wrote: The Four
judgmentsdelivered in the darkest hour of India’s records independence, and
they made that darkness complete…Ordinary guys and girls may want to apprehend
Satan saying, ‘evil be thou my good’, however they had been bewildered and
confused to be informed by way of 4 realized judges of the Supreme Court that
in substance the founding fathers had written into the emergency provisions of
our charter ‘lawlessness be thou our law[31]’.
The Supreme Court reached
its best hour in the unforgettable dissent of Justice H R Khanna. He refused to
bow down to the powers that be and immortalized the incredible spirit of the
judiciary and the rule of regulation in his stinging dissent, observing: It has
been argued that suspending the proper of a Person to cross any court docket
for enforcement of proper to existence and private liberty is completed
underneath a constitutional provision and consequently it can't be stated that
the resulting scenario would be the absence of the rule of law. This argument,
in my opinion, can't stand shut scrutiny for it tries to equate phantasm of the
rule of regulation with the fact of rule of regulation . In his autobiography,
Justice Khanna recounts that he informed to his Younger sister Santosh, “I have
organized a judgment which is going to fee me the chief Justiceship of India[32]”.
That got here to be proper and Khanna used to be Superseded b Justice Beg all
through Emergency. He thereupon resigned.
But any lookup on Rule of
regulation is incomplete except a reference to the editorial in the New York
Times which regarded on April 30, 1976, quickly after Habeas Corpus case. The
Paper wrote: if India ever finds its way lower back to the freedom and
democracy that had been proud hallmarks of its first 18 years as an unbiased
nation, any individual will simply erect a monument to Justice H R Khanna of
the Supreme Court. It was once Mr. Justice Khanna who spoke out fearlessly and
eloquently for freedom this week in dissenting from the court’s choice
upholding the proper of PM Indira Gandhi’s Government to imprison political
opponents at will and besides courtroom hearings. Indian democrats are probably
to bear in mind solely in infamy the 4 judges who obediently over grew to
become the selections of a half of dozen decrease courts scattered throughout
India which had dominated in defiance of the government…..But they will lengthy
cherish the lonely choose who said, in phrases reminiscent of different
enduring declarations for freedoms: “….The Principle that no one shall be
disadvantaged of his lifestyles and liberty besides the authority of regulation
is rooted in the consideration that existence and liberty are treasured
possessions” ….The submission of an unbiased judiciary to absolute authorities
is truely the final step in the destruction of a democratic society; and the
Indian Supreme Court’s selection seems shut to utter surrender.
How the emergency got
here to an stop and Indira Gandhi used to be defeated at the polls is every
other story. Neither Chief Justice Ray nor Chief Justice Beg have been in a
position to stay down their judgments. Justice Chandrachud and Justice Bhagwati
each grew to be the Chief Justice of India after the Emergency used to be
withdrawn on the foundation of seniority however they by no means commanded the
respect, affection and reverence which Justice Khanna Commanded. Justice Khanna
used to be in the Mould of Chief Justice Coke who may want to face up to “the
frowns of power” and the refused to be “Craven and cringing.
Judicial review of legislative action
Judicial Review of Amending Power of Parliament:
(i)
Theoretical Perspectives on Amending Power:
The term "amend" denotes
"to improve" in everyday usage. Yet, its definition becomes highly
precise and detailed when employed in the context of constitutional revision.
As a result of this analysis,
the term "constitutional amendment" is used to refer to any alteration,
addition, or deletion of any provision that affects the body of the basic
legislation of the country. That is, it "carries all shades of meaning,
including amendment, revision, repeal, addition, variation, or delegation of
any provision of the Constitution" when used in reference to a
constitution. 1 2 3 "It has evolved to indicate every form of change
brought about by the process of amending the constitution," according to
usage. To the extent of declaring "to modify is to reconstruct and reconstitute,"
a well-known foreign author.
(ii)
Operational Perspective on the Amending Power of
Parliament:
The following clauses discussing the
competence of the Parliament to change the Constitution are found in Part XX of
the Indian Constitution. Article 368, paragraph 1, of this section of the
Constitution states. "Despite any other provisions of this Constitution,
Parliament may, in the exercise of its constituent authority, alter any
provision of this Constitution by way of an addition, a modification, or a repeal
in accordance with the method set forth in this article." Sub section 2 of Article 368 of the
Constitution outlines the procedural requirements for the amending power, as
follows: "(2) An amendment of this Constitution may be initiated only by
the introduction of a Bill for the purpose in either House of Parliament and
when the Bill is passed in each House by a majority of the total membership of
that House and by a majority of not less than two-thirds of the members of that
House present and voting."
(iii)
Limitations on the Amending Power:
The term "legislative
action" refers to any activity carried out by an organization with the
intent of establishing rules of conduct. This activity can take the shape of
original legislation, secondary legislation, or even the creation or amendment
of a constitution. The specific categories of legislative powers chosen for
study include primary legislation, such as the amending power of parliament,
executive powers, such as the ability to enact laws after delegating such
authority, and administrative powers, such as the ability to levy taxes, create
delegated laws, and adopt specific other administrative measures.
Conclusion/
Suggestions/ Remarks
In
my Concluding remarks, I would definitely not deferred myself saying that Judicial Review is a rule of law
in context of judicial Activism, without Judicial review there would be anarchy
in the state as the judicial review used to maintain checks and balances
between the three organs. Judicial Review also maintains law and order in the
society that no single organ command or keep power with them.
As
Rule of Law have three principles (i) Supremacy of Law (ii) Equality before law
(iii) absence of Arbitrariness.
The
Judicial Review in India keeps all the three concepts of with consonance of Rule of Law. It keeps the
law in supremacy also empowers the court to scrutinize the law made by the
parliament in consonance with the fundamentals of the law. If the same is not
in consonance with the fundamental principles of law. The court can turned the
same down.
1.4 Bibliography/
References
Primary
Source-
1.
Administrative Law by I.P Massey,, EBC
Publication, Edition-9, 2017
2.
Lectures on Administrative Law by Dr. U.P.D
Kesri, Edition- 2020
3.
C.K Takwani, Lectures on Administrative Law,
Edition 2018
4. Durga Das Basu & A. K. Nandi,
“Administrative Law”, Rep. 2006, Kamal Law house, Kolkata
Secondary Sources
2. A Critical Analysis on Judicial
Review, Judicial Activism and Judicial Restraint in India, S. Tharani, Author
is a LLM Student at Tamil Nadu Dr. Ambedkar Law University, India.
INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES [ISSN 2581-5369], Vol
4, Issue 3, 2021
3. Emerging Trends of Judicial Review in
India, Harsharan Walia, International Journal of Science and Research (IJSR)
ISSN (Online): 2319-7064 Index Copernicus Value (2016): 79.57 | Impact Factor
(2017): 7.296
[2] Prashant Gupta, “Doctrine of
Judicial Review: A Comparative Analysis Between India, U.K. and U.S.A” IJLDAI
49
[3] Available at www.quora.com/what-is-meant-by-thedoctrine-of-the-judicial-review (last visited on 01 December,
2021)
[4] Available at www.history.com/this-day-inhistory/marbury-medison-establishes-judicial-review (last visited on 2 December,
2021).
[5] Article 21 Constitution of Indian
[6] 1877 3. ILR 63 ( Cal)
[7] 1913 40. ILR 391 (Cal)
[8] 1918 . AIR 1210 ( Mad)
[9] M.Laxmikanth, Indian Polity (Tata
McGraw Hill Education Private Limited, New Delhi, 2010)
[10] H.C.L. Meillat, University of
Toronto Law Journal, Vol. 15, 1963-64, pp. 489-492, quoted by P. Ravi Jashuva
[11] Justice CK Thakkar and Justice
Arijit Pasayat, Dr. CD Jha Judicial Review of Legislative Acts 116 (2nd, Lexis
Nexis Butterworths Wadhwa, Nagpur 2009)
[12] Ram Jawaya Kapoor v. State of
Punjab, AIR 1955 SC 549 at 556.
[13] Encyclopedia of the American
Constitution 1054 (1986), quoted by V. Nageswara Rao and G.B.Reddy, Doctrine of
Judicial Review and Tribunals: Speed Breakers Ahead, ”(1997) 39 JILI. 415.
[14] (1973) 4 SCC 225
[15] AIR 1980 SC 1789
[16] P. Sambhamurthy v. State of A.P.
AIR 1987 SC 663; Kihota v. Zachillu (1992) Supp. (2) SCC 651; L. Chandra Kumar
v. U.O.I. AIR 1997 SC 1125.
[17] D.D. Basu, Commentary on the
constitution of India, 5th Ed., Vol. 1, p. 170.
[18] 1997 (2) SCR 1186
[19] AIR 2007 SC 861
[20]Supra
[21] Hon’ble Mr. K.G. Balakrishnan,
Judicial Activism under the Indian Constitution available at
http://www.sci.nic.in/speeches/speeches_2009/judicial_activism_tcd_dublin_14-10-09.pdf
, Visited on 31.11.2021
[22] Evolution & Growth Of Judicial
Activism In India’, Shodhganga at 79, available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/8/09_chapter%203.pdf
(Last accessed on 10.12.2021).
[23] Supra
[24] 1974, 26 DLR 44(AD)
[25] 1977, 49 DLR 1 (AD)
[26] Flathman Richard (1994).
‘Liberalism and the suspect Enterprise of political Institutionalism: the case
of the Rule of Law’, The Rule of Law: Nomos XXXVI, New York: New York
University Press
[27] Church of Scientology v Woodward,
(1983) 57 ALJR 42
[28] Jawaharlal Nehru
[29] AIR 1973 SC 1461
[30] AIR 1976 SC 1207
[31] Seervai H M (1993). Constitutional
Law of India, Bombay: Tripathi Publishers.
[32] Khanna H R (1987). Neither Roses
nor Thorns, Lucknow: Eastern Book Company
Article Information
JUDICIAL ACTIVISM AND JUDICIAL INTERVENTION IN INDIA IN TERMS OF JUDICIAL REVIEW- A CRITICAL ANALYSIS BY – ANANYA KUMARI MEHTA
Authors: ANANYA KUMARI MEHTA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/20
- Volume 2
- Issue 7
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