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EVOLUTION OF JUDICIAL REVIEW IN INDIA
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“EVOLUTION OF JUDICIAL REVIEW
IN INDIA“
AUTHORED BY - ADV. RAJSEE.
M. KHEDKAR
ABSTRACT :-
Judicial review, a fundamental aspect of constitutional governance,
has undergone significant evolution globally,
exhibiting distinct trajectories across India, the United Kingdom
(UK), and the United States of America (USA). This
abstract explores the historical progression and contemporary trends of judicial review in these respective
jurisdictions, emphasizing their unique characteristics and offering comparative insights.
In India, the development of judicial review can be traced to the
adoption of the Constitution in 1950. The judiciary, particularly the Supreme
Court, has played
a pivotal role in broadening the scope of judicial review through landmark
rulings such as Kesavananda Bharati
v. State of Kerala (1973),
which established the doctrine of basic structure. Over time, Indian
courts have increasingly intervened in executive and
legislative matters, safeguarding fundamental rights and ensuring governmental accountability. Recent trends suggest
a growing assertiveness of the
judiciary in scrutinizing governmental actions, notably in areas such as
environmental protection, social justice, and governance reforms.
In contrast, the UK has traditionally upheld the principle of parliamentary sovereignty, thereby limiting the
extent of judicial review. However, the enactment of the Human Rights Act 1998 marked a significant shift by
incorporating the European Convention on Human Rights into domestic law, granting UK courts the
authority to review legislative acts for compliance with human rights standards. Despite this development, the UK
maintains a parliamentary-centric governance
approach, with courts exercising restraint in challenging legislative
decisions, prioritizing deference to democratic processes.
Conversely, the USA boasts a longstanding tradition
of robust judicial
review, stemming from the
landmark case of Marbury v. Madison
(1803). The US Supreme Court has wielded considerable
authority in interpreting the Constitution and scrutinizing governmental
actions for adherence to constitutional norms. Notably, the concept of judicial activism
has shaped the American
judicial landscape, with courts actively engaging in social and political
issues such as civil rights, affirmative action, and environmental regulation.
While each jurisdiction exhibits a distinct approach
to judicial review,
common themes emerge,
including the protection of fundamental rights, the maintenance of
checks and balances, and the judiciary's role in upholding constitutional values. The comparative analysis
highlights the diverse paths of judicial review
evolution, underscoring the interplay between legal traditions, constitutional frameworks, and societal
dynamics in shaping the modern growth of judicial authority.
INTRODUCTION:
The formation of the Indian federation, primarily through the
partition of a centralized unitary state following independence from British
rule in 1947, operates under
a parliamentary-federal constitution delineating the roles and
functions of both the union and constituent states within the federation. The constitutional
courts of India, namely the Supreme Court and state high courts, play a crucial role in shaping
and evolving Indian
federalism. Endowed with the power
of judicial review,
they base their decisions on citizens' fundamental rights, the federal
distribution of powers outlined in the Constitution, and the limited
separation of powers consistent with
the parliamentary system adopted by both union and state governments. Furthermore, extraneous factors such as the creation
of numerous new states since the inception of the Constitution in 1950 and the emergence of several
regional parties have significantly influenced the dynamics of the federal
system, potentially leading
to intergovernmental jurisdictional conflicts ripe for adjudication.
While judicial review primarily promotes nationwide policies and
actions, reinforcing the parliamentary
nature of the Constitution, federalism adjudication has often preserved the autonomy of state legislatures and
governments, despite the absence of an explicit theory of strong states' rights in the constitutional text. Particularly since
the establishment of the doctrine
of the unamend ability of the basic structure of the Constitution in the
landmark case of Keshavananda Bharati v. State of Kerala (1973), the Supreme Court has expanded
its jurisdiction of judicial
review beyond legislative and executive acts to include constitutional amendments, arguably making it one of the most influential constitutional courts globally.
The ascendancy of constitutional courts has been further facilitated
by the relative decline in the power
of Parliament and the executive branch of the union government, attributed to
the proliferation of divided governments resulting from India's cultural,
regional, and social diversities,
along with the rise of a state-based multiparty system since the early 1990s.
As a counter-majoritarian institution within the highly centralized parliamentary federal constitution,
the constitutional courts have played a crucial role in establishing a system
of constitutional supremacy, thereby
fostering a balance between majoritarian democracy and consensual federal
governance.
The evolution of India's constitutional courts post-Nehru era has
seen a shift from strict legalism
and restraint towards judicial
activism. Their adjudications reflect a nuanced
and often non-partisan assessment of constitutional provisions, responsive to changing societal
contexts. Nevertheless, the
extent to which the trend may be influenced by political shifts, such as the Bharatiya Janata Party's (BJP) assumption
of power in the 2014 election, remains uncertain. Overall, the Indian Supreme Court continues to grapple with developing neutral
constitutional principles to
safeguard against the conflation of partisan politics with constitutionally
valid federal interests in a
pluralistic democracy.
Summary of Marbury case :-
The Marbury v. Madison
case of 1803 is a landmark
decision in United
States legal history
that established the
principle of Judicial Review. The case involved William Marbury, who had been appointed as a justice of the peace
by outgoing President John Adams in the final hours of his presidency. However, Marbury's commission was not delivered before the new president,
Thomas Jefferson, took office. Jefferson's Secretary of State, James Madison,
refused to deliver
Marbury's commission.
Marbury petitioned the Supreme Court for a writ of mandamus, seeking
to compel Madison
to deliver the commission.
Chief Justice John Marshall, writing for the Court, determined that Marbury was entitled to his commission but held that the provision of the Judiciary
Act of 1789 granting the
Supreme Court the power to issue writs of mandamus exceeded the Court's constitutional authority. Marshall
reasoned that the Constitution, as the supreme law of the land, must
be upheld, and any law contrary to it is void.
In this landmark
decision, the Supreme
Court declared for the first time that it had the authority
to review acts of Congress and the President and to declare them
unconstitutional if they violated the
Constitution. This power of judicial review has since become a fundamental principle of American constitutional law,
ensuring the supremacy of the Constitution and the separation of powers among the branches of government. The
Marbury case affirmed the judiciary's role as the ultimate interpreter of the Constitution and significantly strengthened its position in the
federal government.
Judicial review
– India
The judicial system
in India occupies
a significant place as it enquires the validity of laws, their
interpretation and implementation framed by the legislature. Besides,
settlement of mutual disputes and the disputes
arising out of the clashes
between Centre and the States
and amongst the States also fall under the jurisdiction of the judiciary. It also protects
the rights and liberties of the citizens. Justice, that is fair
and just to all without any discrimination is expected from judiciary. Moreover, efficiency of the government largely depends on the impartial, independent and
positive justice.
When the legislature enacts laws resulting in the infringement of
the freedom and security of the
individuals and the executive stops performing its duties like enforcement of
law, the only way out is the
judiciary. Judiciary is compelled to take over in some measure the duties of
the executive to ensure
justice to the citizens.
In a democratic polity, good government is indispensable for any
state and the three organs of the
government constitute three pillars of good and effective governance and lack
of harmony amongst them can lead to
administrative chaos. In such a situation, independent and fearless judiciary
forms the core of democracy. In the Constitutional scheme, the judicial
system works as an
active catalyst to secure justice
for every citizen.
Though the Indian judiciary has been honest and independent in the
performance of its duties as regard
to the executive control and influence. However,
under the changing
socio-economic- politico
situations in India people have higher expectations from the judiciary. In the
event of poverty and illiteracy, its
challenging task is to ensure justice to all. The entire system of governance is based on the principle of
equal justice frail. It is now widely accepted that the nature of judiciary
has become social and economic.
The Supreme Court of India
was technocratic at first, but as a result of its liberal
interpretation of the law,
it progressively gained authority and stature. Beginning with the
judicial review in A.K. Gopalan
v. Madras1, it was argued that this authority was inherent in the written
constitution itself. Article 13 states that no law passed by the state
may restrict or deny someone's
fundamental rights. Citing this article, the Supreme Court expressed its
opinion as follows:
The Constitution's incorporation of Articles 13(1) and 13(2) seems
to have been done with much
deliberation. If any legislative act violates any of the Fundamental Rights,
even in their absence. In the event that an enactment goes beyond the bounds, the Court retains
the authority to declare it invalid.
Stated differently, the court assumed the duty of providing a
judicious interpretation of the Constitution and a judicial review
of legislative actions.
Judicial activism is a natural
byproduct of judicial review
and can be caused by number of things. The judiciary must become more proactive in interpreting the laws as the
political landscape becomes more complex and new challenges arise. In situations where laws are lacking (such as
foreign adoptions of children, cybercrimes,
etc.), the court must expand the application of existing laws to decide cases
that come before it.
According to S.P Sathe,
There are two judicial review models. One is a technocratic model in
which judges only carry out their
technocratic duties, declaring a statute unconstitutional if it exceeds the
legislative branch's authority. In the second
model, a court
uses a dynamic interpretation approach
to keep a constitution current
by reading its provisions broadly
and in the context of the principles that underpin it.
Judicial activism can be positive
or negative. It is positive
when it engages
itself to make power relations between different sections of
people more equitable. On the other hand, if it is status quoits
and conservative, it is negative.
Upendra Baxi uses the terms 'reactionary' and 'progressive'. According to him, 'much of Nehruvian
era activism on issues of land reform and right to property,
and the pro-emergency activism typified
in S.K. Shukla2, manifests reactionary judicial activism. Progressive
judicial activism commences with Golak Nath3 and Kesavananda4 and culminates in a wholly different genre of social action activism.
Sathe states that "Judicial activism acts to breach separation
of powers, which raises social costs
and upsets transactional efficiency." Restructuring the dysfunctional
institutions is the better course of
action if either the legislature or the executive have devolved into rotten boroughs
with outmoded administrations
and unrepresentative legislatures.
POLITICAL IMPLICATION OF JUDUCIAL
ACTIVISM:-
Because of the complexity and pluralization of the political system during the past many years, the Supreme Court has transitioned from a
positivist to an active perspective. The political repercussions. The judiciary has invalidated several
constitutional changes and executive actions
in certain instances. The Golaknath case, in which
the Supreme Court struck down the authority to modify the Constitution by eliminating property
from the list of essential rights by a majority vote of six to five, is one of the court's most significant and seminal rulings.
public has, for the most part, welcomed
the increasing activism.
It has, nevertheless, had The
"argument of fear," which holds that the amending power's engine
would quickly exceed the Constitution if brakes are not used, was also a factor
in the decision. The Bill of Rights
was the appropriate place to stop the
amending power when it
came time to apply the brakes.5
On the other hand, the Golaknath case's
verdict was overturned by a thirteen-judge court in the Kesavananda
Bharati case, claiming it had been decided incorrectly. However, it also found that Article 368 of the Constitution prohibited the Parliament from passing any laws that would have undermined the fundamental elements
or framework of the document. The Minerva Mills
case also raised the issue of fundamental aspects of the Constitution.
Although the nationalization of the mills constituted a property
issue, Nani Palkhiwala, the defense
attorney, maintained that Parliament had the authority to modify the
Constitution. On May 9, 1980, the
Supreme Court issued the first orders in the Minerva Mills case, six months after the hearings
concluded. Below is a summary
of a few of these rulings:
Since Section 4 of the 42nd Amendment completely excludes any
challenge to legislation that apply
Directive Principles at the expense of Articles 14 and 19, it eliminates the fundamental elements
of the Constitution and puts Parliament's amending power to naught. Additionally,
it was decided that Section 55 was outside
of Parliament's amending authority because it "removes all limitations on the Parliament's power to amend the
Constitution and confers powers upon it
to amend the Constitution so as to damage or destroy its basic or essential features
or its basic structure."
1 A.K. Gopalan v. State of Madras , AIR 1950 SC 27,34
2 A. D.M. Jabalpur
v. Shiv Kant Shukla , AIR 1976 SC 1207
3 Golak Nath v. State of Punjab, 2 SCR (1967)
763
4 Kesavananda Bhamti v. State of Kerala, AIR 1973 SC 1461
Regarding section 3, Justice Bhagwati found in a different ruling in
the same case that the revised
article 31C was constitutionally legitimate since it was within Parliament's
amending jurisdiction and did not
harm or destroy the fundamental structure. Article 31C was changed, extending its scope to include all of the directive principles listed in part IV of the Constitution. A statute "enacted to give effect to a Directive Principle
was not invalid because it infringes a Fundamental
Right," according to the justice. This was the case because, although
rights are valuable, the majority of the population is made up of impoverished, oppressed, and economically backward sections for whom they hold little significance.
The question of "whether the provisions of the 42nd Amendment, which deprived the Fundamental Rights of their supremacy, are ultra vires of the amending power of the Parliament?" was specifically examined
in the Minerva Mills case. Another argument
put forth was that Article 31C, which forbade
challenges to legislation enacted in accordance with directive principles, was unconstitutional and unsuitable since
it gave Parliament unrestricted amending
power, which included altering the fundamental elements of the Constitution.
The petitioner's representative in
this action against the Government of India, N. Palkhivala, referred
to the ideology behind article
31C as "the very quintessence of authoritarianism."
The Minerva Mills case is noteworthy because
it upheld India's
constitutionalism's fundamental tenet that is, the Supreme
Court while also upholding the basic structural theory.
After these cases, the question
of how an unelected entity,
the court, could
decide what should
be in the Constitution and override an elected Parliament that was
supposed to represent the will of the
people as a whole emerged. The following argument was made by Justices Hegde and Mukherjea in the Keshavananda Bharati6 judgment,
which provided part of the answer:
If the people are granted the authority to modify the
Constitution, it may be interpreted
as having more content than if that authority is granted to a body established by the Constitution. It is not
necessary for the two Houses of Parliament
to have two thirds of their members reflect the majority of the population in
this nation. Aside from this, our Constitution was written based
on consensus rather
than majority votes,
meaning that even a small percentage of voters can choose more than two-thirds of the members
of either House of
Parliament. It ensures that minorities are
5 Upendra Baxi„ The Indian
Supreme Court and Politics 18-19 (1980)
6 (1973) 4 SCC at 481
protected. The protections afforded to minorities may lose all meaning if the views of the majority are considered to be final.
Consequently, it is intolerable for the Union and the States to argue that two-thirds of the members in each
of the two Houses of Parliament are always entitled to speak for the entire
citizenry.
This argument challenges the notion that the will of the people is represented by the parliamentary majority. In India,
even in the absence of a majority
of votes, a party or coalition of parties can obtain a parliamentary majority
and form the government. The contention is that after extensive debate and discussion, the Constituent Assembly
established certain fundamental provisions of the
Constitution, which should not be altered by a coalition of this kind.
The aforementioned query was answered in favor of the judiciary by
the internal emergency declared by
Indira Gandhi in 1975, following her removal from office by the Allahabad High Court due to an electoral offense. The 39th Constitution Amendment Bill was passed in part to overturn
this decision and in part to give the Parliament more authority. In the case of
Indira Gandhi v. Raj Narain7,
this amendment was contested on the grounds that it altered the fundamental framework of the Constitution.
Although Indira Gandhi's election was affirmed
on the merits, the Supreme Court invalidated the amendment on the
grounds that it was incompatible with the fundamental provisions of the Constitution. The legitimacy of the court's
activity was further enhanced by this ruling.
Other cases highlighting the significance of the fundamental
structure of the Constitution and placing limitations on the presidential authority to dismiss
state governments include
the State of Rajasthan v. Union of India8
and the seminal S.R. Bommai v. Union of India9 cases. In the former, the Supreme Court upheld the dismissal, under
Article 356 of the Constitution, of three state
governments by the Janata government, which assumed power in 1977. Conversely,
in the latter case, the Supreme Court delineated the circumstances under which state governments could be dismissed and stipulated the
procedure mandating that proclamations issued by the President must receive approval from both houses of Parliament
within two months; failure to do so
may result in the reinstatement of the dismissed governments. Through this
ruling, the court curbed
the frequent misuse of Article 356 in
the dismissal of state governments, as noted by Marwah, indicating that this
authority had been excessively
exercised by the central government in
7 AIR SC 1590
8 AIR 1977 SC 1361
9 AIR 1994 SC 1918.
numerous instances Since
the Supreme Court's ruling in the Bommai case, central governments have
exercised caution in recommending the dismissal of state governments. Apart from the judicial oversight provided under Article 356, there have been instances of
political checks attributable to the transformation
of the party system. For instance, in October 1999, the union government proposed President's rule in BJP-ruled
Uttar Pradesh to President K.R. Narayanan. However, the President urged the government to reconsider its recommendation.
Subsequently, the government withdrew
its proposal, influenced by the aforementioned judgment. Similarly, when the Rabri Devi-led government in Bihar was dismissed by the BJP-led
central government in 1999,
the Congress Party-controlled Rajya Sabha declined to endorse the presidential proclamation, leading to the reinstatement of the
ministry.
A similar scenario arose following the Uttar Pradesh assembly
election results in February 2002 when no single
party or coalition secured a clear majority. The Governor of Uttar Pradesh
recommended invoking Article 356 to impose President's rule while
keeping the legislative assembly in
suspended animation, as established in the Bommai case. The President accepted the recommendation. However,
the Bharatiya Janata
Party (BJP) and the Bahujan
Samaj Party (BSP) reached an agreement and submitted
a letter to the Governor pledging support to each other in the legislative assembly.
Consequently, the Governor
invited the BJP-BSP
coalition to form
the government, with BSP leader Mayawati appointed as
the chief minister.
The Bommai case, decided in 1994, has significantly contributed to
restoring the autonomous functioning
of the parliamentary system at the state level and reshaping the interpretation
and application of Article 356 of the Constitution.
POST EMERGENCY
JUDICIAL ACTIVISM:-
As per Rajeev Dhawan, "the higher judiciary has
emerged as a crucial player in asserting its
independent status, compelling other governing bodies
to undertake their assigned duties." The Nehru years saw
a first in the evolution of the judiciary, which had been an institution of
state during the colonial era and was responsible for interpreting the meaning of legislation.
The judiciary started its transition to become an autonomous
institution of governance in the 1980s,
during the post-emergency phase, but this was not the biggest change. By
significantly extending
its jurisdiction to include PIL, the Supreme
Court gave journalists and social activists access to legal
defense against judicial abuse by other governing
bodies.
The nature of judicial activism appears to have changed
significantly following the 1977 electoral setback
of the Congress government, which included Indira
Gandhi as prime minister. According to Sathe:
By liberally interpreting the constitutional articles pertaining to
the right to equality and the right
to personal liberty, the Court capitalized on the chance to increase the rights
of the populace.
The Indian Supreme Court began interpreting the bill of rights as a
whole, departing from its previous
approach of interpreting each item of the Constitution independently. It
provided the terms
"life," "personal liberty," and "procedure established
by law" found in Article 21 of the Constitution
broad definitions. By adopting such a broad view, it acknowledged the rights of detainees awaiting trial. The legality of
the death penalty provisions in the penal code was reexamined, along with the rights of prisoners, juvenile delinquents, and independent juries,
as well as the rights to privacy,
a prompt trial,
an impartial judiciary, and effective and transparent government.
The ideology of constitutional interpretation that viewed the
Constitution as assertions of principles
of constitutional governance rather than just a list of regulations served as
the impetus for post-emergency
judicial activism.
The court has extensively interpreted Article 21, not only in conjunction with the Bill of Rights
but also with regard to socio-economic rights, such as the right to a
sufficient means of livelihood and primary education
(as seen in the Unnikrishnan case), in lieu of Article
45, which pertains to a directive principle concerning the provision of free and compulsory education for children up to
the age of 14 years. Following years of discourse and advocacy, subsequent to the Unnikrishnan case judgment, the 86th
Constitution Amendment Act was ratified by the
President in December
2002, enshrining education as a fundamental right for children
aged six to fourteen years through the
introduction of a new Article 21A. Concurrently, Article 45 underwent
appropriate modifications to include provisions for early childhood
care and education for all children until the
age of six years.
Not only has the judiciary expanded the ambit of its activism, but
it has also delved into uncharted territory where no legislation existed. For instance, in matters concerning the adoption of
children by foreigners or in establishing guidelines for the prevention of
sexual harassment in the workplace, the court has not merely
been proactive; it has effectively crafted new legal
frameworks, effectively assuming a quasi-legislative role under Article 141 of
the Constitution. However, the
question arises: to what extent is this expanded judicial role desirable? In response to criticism, the
court has acknowledged the importance of refraining from usurping the legislative function, asserting that its
directives are intended solely to offer temporary relief.
Thus we see the enlarged and the empowered role of the judiciary in these
cases.
Contribution of Justice Krishna
lyer:-
In Hoskot v State of Maharashtra10, the court carved out
a right to free legal aid from the provision
of 'procedure established by law' under Article 21. Justice lyer opined that
this right is available
under following circumstances: first "a person is disabled
incommunicado situation"; second,
if the circumstances of the case and the gravity
of the situation so demands;
and third, the end of justice call for such service. Once the court is
satisfied on these counts, then it may order for providing the legal service to such person.
In Hussainara Khatoon case, the miseries of the helpless, hopeless,
unfortunate, forgotten specimens
of humanity languishing in jails for years awaiting
trial in court of law to commence,
has been exposed. According to Court, one of the causes for such
situation was lack of legal service to these destitute and homeless, a cry that
has yet to receive any response.
CONCLUSION:
In conclusion, the evolution of judicial review in India
reflects a dynamic and progressive journey marked
by significant milestones and transformations. From its early days as a limited
power exercised cautiously by the courts to check legislative and
executive actions, judicial review has evolved into a robust
mechanism for upholding
constitutional principles, protecting fundamental rights, and ensuring the rule of law.
Over the years, landmark judgments have expanded the scope and
application of judicial review,
empowering the judiciary to intervene in matters of public policy, governance,
and social justice. The judiciary's
role has transformed from being reactive to proactive, as seen in cases
addressing environmental protection, gender equality, and socio-economic rights.
Furthermore, the Supreme
Court's creative interpretation of the Constitution and its willingness to innovate legal
doctrines have contributed to the development of a vibrant
jurisprudence that adapts to the changing needs of society.
Judicial activism, while sometimes contentious, has played a crucial
role in advancing democratic values and promoting
accountability in governance.
However, challenges remain,
including concerns about
judicial overreach, delays
in the justice delivery
system, and the need for greater transparency and accountability within the
judiciary itself. Balancing the
principles of separation of powers and judicial independence with the imperative of democratic governance is
an ongoing endeavor.
In essence, the evolution of judicial review
in India underscores the judiciary's vital role as the guardian of the Constitution and the
protector of individual rights. As India continues on its path of progress
and development, the judiciary's commitment to upholding the rule of law and ensuring
justice for all will remain essential for the nation's democratic fabric and
inclusive growth.
Article Information
EVOLUTION OF JUDICIAL REVIEW IN INDIA
Authors: ADV. RAJSEE. M. KHEDKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/07
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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