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JUDICIAL REVIEW IN INDIA: HISTORICAL DEVELOPMENT AND PERSPECTIVE
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JUDICIAL REVIEW IN INDIA: HISTORICAL
DEVELOPMENT AND PERSPECTIVE
AUTHORED BY - LALHRUAIPUII
ABSTRACT
Our Constitution has incorporated the
provision of the judicial review into itself. To safeguard the liberty and
rights of individuals, the judicial review is recognized as necessary and a
basic requirement for construction up of a novel civilization, which is
constructed on the perception of community and well-being morals. The powers of
judicial review are vested significantly by means of the higher judiciary of
states and the Supreme Court of India. The privileges of persons are sure fire
in the transcription of the Constitution of India. In the actions of a Welfare
State, the constitutional mandates occupy predominant position even in
administrative matters. It operates in public domain and in appropriate cases
constitutes substantive and enforceable right. This work throws light upon the
new legal order which has influenced the administrative process greatly.
Hence Parliament was invested with
the power to amend the Constitution. Article 368 of the Constitution gives the
impression that Parliament's amending powers are absolute and encompass all
parts of the document. But the Supreme Court has acted as a brake to the
legislative enthusiasm of Parliament ever since independence. With the
intention of preserving the original ideals envisioned by the
constitution-makers, the apex court pronounced that Parliament could not
distort, damage or alter the basic features of the Constitution under the
pretext of amending it. The phrase 'basic structure' itself cannot be found in
the Constitution. The Supreme Court recognised this concept for the first time
in the historic Kesavananda Bharati case in 1973. Ever since, the Supreme Court
has been the interpreter of the Constitution and the arbiter of all amendments
made by Parliament. In conclusion, this dissertation analyses the role of
Indian Judiciary in the establishment of an orderly and civilised society.
Keywords: Judicial Review, Constitution, Supreme Court, High Court,
Fundamental Rights, Judiciary, Government.
CHAPTER 1
CONCEPT OF JUDICIAL REVIEW
Judicial review is not the only phrase used in the Indian
Constitution. In practice, it implies that a higher court will alter a lower
court's ruling or punishment. In every political system, the remedies of appeal,
revision, and similar measures are implemented by the procedural rules of the
state.
Review denotes to look at again in
everyday use and formal examination in technical terminology, with the latter
meaning "to make changes if necessary"; A basic examination of
written material; a report on something that has already occurred. The dictionary's definition of Review
suggests that it is both a critical appraisal of a working environment and an
inspection with the objective of making improvements if necessary. As a result,
the idea of a review is highly intriguing. In the framework of the law, judicial
review is a kind of government interference. In Parduman Singh v.
Territory of Punj[1], The judge
found that Research required a legal assessment of the issue, with particular
factors recognized and suggestions made. The most common definition of judicial
review is the courts' ability to weigh in on the legitimacy of measures taken
by other levels of government where the problem of legality is relevant to the
settlement of law matters legitimately standing under the steady gaze of the
courts. Because of this capacity to judge legality in relevant cases, the
authority of the judiciary to assess should not be seen as a little fiddling,
but rather as a significant shift toward the justice process. It is the
activity of monitoring how the various parts of government exercise their power
in order to maintain them within the limitations established by the
Constitution. Any public authority, whether statutory, quasi-judicial, or
administrative, can also be checked by the
superior court's extraordinary power
of judicial review. It plays an important role and may be operational in both
procedural and substantive law. Only someone who is dissatisfied with a ruling
may utilize it in court. It's no secret that government employees get to use
their judgment when making administrative decisions. Keep in mind that,
generally speaking, only the dynamic cycle is really open to legal scrutiny.
Especially in nations with written
constitutions, the notion of power enjoyed by the judiciary is of specialized
importance in open regulation. This implies that legislation and other official
actions in these nations may be challenged in court and ultimately deemed
constitutional. It is critical that we grant courts the right to proclaim a
rule unlawful in order to keep the legislative, executive, and judicial
departments in check. Not because the court was intended to have unbounded
power. The judicial branch is not required to take a stance that contradicts
the bulk of the population's views and politics. The court, on the other hand,
has the exclusive jurisdiction to determine whether a statute is consistent
with constitutional principles. The top law enforcement officer must determine
whether a rule is constitutional and make a public pronouncement to that
effect. The necessity for a legal audit to overturn a decision or penalty given
by an untrustworthy court was apparent in the past, but things have changed and
the premise still holds water. A legal audit is carried out to examine whether
or not the manifestations of different branches of government authority are in
compliance with the constitution. It is invalid because it violates the
Constitution. The judicial part of gov functions as a inspection or constraint
on the legislative and executive branches' power to prevent them from exceeding
their jurisdiction. The power of the judiciary to review is an essential
component of both American history and the Constitution. Though not explicitly
stated, most respected experts agree that Articles III and VI of the
Constitution strongly suggest conducting a legal audit. Article III gives the
federal legal executive ultimate command over all issues affecting the US
Constitution, laws, and foreign agreements. Article VI suggests employing the
legal strength of bureaucratic courtrooms to safeguard the ultimate authority
of the Constitution against governmental measures that neglect or go against
it.[2]
The
topic of who should make the final decision comes as a lobbying point of a
government's constitution whenever it is unclear if a law enacted by the state
authorities violates the national council's authority, or the other way around.
The judicial system has the power to resolve disputes and determine whether or
not a legislation passed by the legislature is constitutional. The judicial branch
has broad powers of examination, one of which is determining whether a
legislature has constitutional authority. It's vital that no provisions of the
Constitution be violated by the legislation. Courts are responsible for
providing meaning, either directly or via Judicial Review. When direct judicial
scrutiny establishes the invalidity of a legislative or executive act, it must
be declared invalid. The idea that the Constitution is the highest law in the
solid ground is the bedrock of judicial review. Since it was established
through a popular vote, many in the United States see it as the highest
political office possible. The Constitution places significant limits on the
Legislative Branch's power. There must be someone with the authority to rein in
the legislature if it ever purposefully or mistakenly exceeds these
restrictions, to demonstrate the wishes of the crowd as established in the
constitution. The judicial system is the most crucial institution in a
democratic state because it ensures the constitutional order, checks
legislative excess, safeguards the people against democratic dictatorship, and
realizes the document's vision of a morally equitable society for everyone.
Laws
made by Parliament in England are not subject to judicial scrutiny since there
is no written constitution. Parliamentary acts cannot be declared
unconstitutional by any English court. Although the European Communities Act of
1972 made The Human Rights Act of 1998 compelled English legal systems to
underline where a demonstration of Parliament was inconsistent with the
European Charter of Human Rights, and the Human Rights Act of 1998 made
community legislation immediately effective in the UK. This theoretical
position has not changed. However, laws passed by parliament are immune to
judicial review. In any case, the judiciary was made accessible to British
colonies like India so that they could evaluate laws. This was due to the fact
that the British Parliament's constituent statutes placed constraints on the
powers of colonial legislatures. The Indian judicial system has been
responsible for reviewing both legislative and executive activities since
British control. The court's ability to evaluate legislation was severely
limited as there was no bill of freedoms in the constituent demonstrations.
There is a presumption of stopping administrative demonstrations in nations
ruled by the English if they are clearly beyond their jurisdiction. It was
determined that the component laws will be interpreted in accordance with
generally accepted principles of statutory interpretation. Courts rejected the
notion that they could alter strategy or standards beyond what was explicitly
expressed somewhere in the words because to the effect of the theory of
parliamentary matchless perfection on the legal mind. Until an act of
legislation goes beyond their purview, Indian judges, who were trained in the
“British tradition of parliamentary supremacy, rarely question its legality.
Such occurrences were unusual in the past”. But the courts reviewed any executive
actions that exceeded their authority and invalidated them.
Legal
audit of regulation turned into the main part of American protected regulation.
Albeit the Constitution no place makes reference to that the High Court of the
US has the ability to negate demonstrations of Congress assuming they are in
opposition to the arrangements of the Constitution, Marshall held in Marbury
v. Madison[3] that these
authority were proposed in a handed Constitution. The US Supreme Court's
judicial review strategy eventually gained widespread support, despite initial
criticism. In the United States, it is generally accepted that laws may be
challenged in court. In contrast, this was expressly codified as part of Indian
law. To the extent that they clash with the arrangements of the Constitution,
including the fundamental rights, any pre-Constitutional law in effect inside
Indian territory must be null and unconstitutional. This is stated in Section 1
of Article 13 of the Indian Constitution. Any state law that is in contravention
of the preceding mandate is declared invalid to the level of its infringement,
as provided for in this article.
A number of law makers in the
Constituent Assembly have referred to the Constitution as a "paradise for
lawyers." Dr. B. R. Ambedkar considered that the Constitution's authority
to revision mechanisms, especially the writ authority that provided prompt
recourse against Fundamental Right abridgement, were its very heart and soul.
The Netherlands and the United Kingdom are two constitutional democracies that
do not employ judicial review. He rejected previous criticism and defended the
court examination criteria. Because public officials in these countries are
held accountable to the people, regulations and stability remain intact through
the political cycle of majority rule. The danger of persecution by a
domineering larger part of individuals delegates in government is certifiable,
but democratic or legal scrutiny seems to be a highly effective tool for
defending minority' rights.
1.1 – Historical background of
judicial review in india
The legal procedure through which a
judge assesses whether or not a statute violates the Constitution is known as
judicial review. If the challenged Act fails to meet this standard, it is
unconstitutional. Smith and Zurcher define judicial review as "the
examination or review of legislative provisions and executive or administrative
acts by the courts in cases really before them to figure out to what extent
they are prohibited by a constitution as written or are in excess of drives
granted by it," and if they are, the tribunal pronounce them null and
void. Instead of collapsing under the monolithic fixation of the norm of
persecution, the legal survey may remain as an order keeping watch on the republic.
The right to question government actions in court is guaranteed under the
Indian Constitution. To defend people's rights and liberties, a new kind of
development is required, one that is based on understanding of public and
well-being principles. Both the Supreme Court of India and the state lower
tribunals undertake extensive judicial reviews. Every citizen's rights are
protected by the written Indian Constitution. The Drafting Committee of the
Constituent Assembly determined that when the nation gained independence,
access to the courts would be critical. The establishment of the Federal Court
of India by the Government of India Act of 1935 was a watershed moment in the
evolution of the legal system in British India. The impact of British common
law and the formation of Indian courts under British rule have shaped India's
legal history during the previous two centuries.
Among the merging entities and the
Center is a bureaucratic administration, as envisioned by the Public authority
of India Act, 1935. In reality, only the federal court maintained its
long-lasting influence on the Indian Constitution, out of all the central
bodies envisioned by the Act. In a federal body of law, the federal government
and the state government have different responsibilities and authorities, so
disagreements between them are possible. To put an end to these debates and
clarify the roles played by each Administration (State) and its designated
expert, there must be a concerted effort. The federal judiciary, more than any
other branch of government, is charged with interpreting the Constitution. To
interpret the Constitution and, by extension, to settle any resulting
controversy amongst the States, the legal executive in a league provides an
unshakeable basis. The Public Authority of India's 1935 demonstration's
administrative design was intended to be the administration arrangement's lead
dog. When compared to the Government Court, the high court stands out as a very
different kind of institution. Article 32 of the Indian Constitution designates
the Supreme Court as the custodian of all fundamental rights. In order to keep
an eye out for any violations caused by the Association Government or the State
Government, the Court must frequently emphasize the worth and usage of these
rights. It shields people against executive and parliamentary decisions that
run counter to the Constitution. The Indian Constitution needed to provide a
legal framework that was unambiguously endowed with the dominance to label any
legislation that violated the Constitution extra vires, so defending the
integrity of Indian states and the ethnic, strict, and political liberties of
the classes.
The Supreme Court of India accepted a
careful and cautious method in the beginning days of independence. The Court
usually took a pro-legislative stance due to its adherence to the British
system of incomplete examination by judiciary. This is clear from rulings like
A.K. Gopalan’s case[4]; however,
judges quickly broke free of their chains, which guide to a sequence of “right
to property cases” in which the judges and parliament were distressed. The
homeland saw a sequence of proceedings in which a Supreme Court choice was
overturned by law making, shadowed by additional verdict upholding the
preceding location, and so on. The two wings of the administration sustained to
fight over other problems, such as the authority to alter the Constitution.
During this time, the Legislature attempt to pass collective policies that
prioritized the common good, but they ran afoul of peoples vital rights because
the Apex Court upheld those rights. Attempts were made at the time to depict
the Supreme Court as only caring about the interests of the wealthy and
ignoring the needs of the average person. One hundred Union and state laws were
institute to be unauthorized by the Indian Supreme Court between 1950 and 1975,
either entirely or in part. After the time of crisis the legal executive was in
a bad way for having conveyed a progression of judgment which were seen by a
larger number of people as being offensive of the important basic freedoms of
Indian residents and impacted the manner in which it checked the constitution
out. The High Court ruled that every legislation, including amendments to the
Constitution and plans and byelaws of civil authorities that have an impact on
a residents existence, is prone to legal review. In the notable case Kesavananda
Bharati v. State of Kerala, the Supreme Court of India created “the
basic structure doctrine”, which states that while the government may change
the Constitution, it should not change its principal body. The Judges did not
make any effort to clearly describe the Constitutions fundamental structure.
The established seat in Indira Nehru Gandhi v. Raj Narain[5], made
clear that Legal Survey in political race questions was not a motivation as its
everything except rather a piece of basic plan. In S.P. Sampath Kumar v.
UOI[6], P.N.
Bhagwati, C.J., citing Minerva Mills Ltd., argued that access to the courts
should have been a priority in the “Bill of Rights”. The Constitution as we
know it now would not survive without the right to challenge court decisions.
CHAPTER 2
CONSTITUTIONAL PROVISIONS OF JUDICIAL
REVIEW IN INDIA
To protect the Indian Constitution,
the Indian judicial system has a process known as Judicial Review, which allows
the courts to refute any resolution or governmental action that the courts find
unconstitutional. Part of the Indian Constitution is the Judicial Review. Just
as it is in the American Constitution. The Indian Constitution gives Parliament
some but not all authority. Instead, federal and state governments share
whatever authority they have. Aside from that, the High Court is in a position
that allows it to conduct investigations into both Parliament and the State's
executive branches. Judicial review was used even though it is not explicitly
stated in the 1935 Government of India Act due to constitutional issues.
Articles 13, 32, 131–136, 143, 226, 227, 245, 246, and 372 of the 1950 Indian
Constitution define judicial review explicitly. Therefore, revision by the
judiciary is institutionalized in India and protected by the Constitution. The
Indian Constitution mandates that the courts interpret its language and declare
a statute unjust if it is determined to violate the Constitution's core
principles. This means the judicial system is always monitoring developments.
2.1 - Article 32 : Writ jurisdiction
of Supreme Court
“This clause, for want of a better
expression, is known as the right to constitutional remedies and grants the
Supreme Court explicit authority to carry out the obligations enumerated in
Article 13, namely to protect fundamental rights. It is one of the most
essential constitutional safeguards against state despotism and provides the
Supreme Court with a great deal of latitude for judicial activism. This is
evident from the multitude of decisions it has made, giving the fundamental
rights a new meaning and periodically establishing new duties and rights. In Prem
Chand Garg v. Excise Commissioner, U.P[7],
The Supreme Court elaborated on this clause's significance. The right to
petition the Supreme Court is, therefore, a cornerstone of the framework of
democracy protected by the Constitution. It would make sense for the caretaker
and enforcer of fundamental rights to assert that this is impossible. This
court has the grave responsibility to act as a sentinel on the qui-vive,
protecting those mentioned fundamental rights with unwavering zeal and constant
vigilance. This behaviour is commensurate with the confidence placed in it. To
fulfill its mission, this court must reject petitions that seek prevent abuse
against these rights.
To ensure that fundamental rights are
followed, the Supreme Court will have the power to grant writs such as habeas
corpus, mandamus, quo warranto, certiorari, and preliminary injunctions. The
Supreme Court may delegate all or a portion of the powers conferred to it by
Article 32(2) to any other court authorized by law within its territorial
jurisdiction. Moreover, it safeguards the privilege of It also states that the
right it protects cannot be suspended except in accordance with the
Constitution, which should be possible without affecting the High Court's
authority under Article 32, Paragraphs 1 and 2. Due to the fact that a person
can directly approach the high court without going through any lethargic cycle
associated with the legal hierarchical order, the right of admittance to the
high court under this arrangement is essential for ensuring a guaranteed,
swift, and streamlined solution for implementing them. The Supreme Court has
broad discretion in determining how to organize the evidence in a given case.
The court may issue any order or direction it deems necessary to grant the
petitioner the relief requested, including declaratory orders. For the purpose
of enforcing fundamental rights, administrative, legislative, and government
action or inaction is subject to judicial review. In the absence of a violation
of the petitioners' fundamental rights, however, it cannot be used to determine
the constitutionality of a statute or administrative action. Other than
violations of the fundamental right, the Supreme Court is not required to
consider any other issues under this provision. In this instance, the
petitioner only needs to convince the court that he has not received adequate
redress for his grievances; he is not required to demonstrate that he has
exhausted all other legal remedies. The same remains true for challenging a
supreme court's decision on the merits or ensuring that it will be
reconsidered. In addition to its authority to conduct surveys, the court has
the discretion to adjudicate any factual disputes arising from a writ
application. When a regulation prescribes a particular regulatory activity, the
Constitution is silent regarding the methodology to be followed under this
arrangement, as this power is fundamental and cannot be diminished or curtailed
by any regulation and may be invoked regardless.
In Bandhua Mukti Morcha v. UOI[8]The Supreme
Court made it clear that the usual adversarial process is not required by this
clause, and that any mechanism effective for enforcing fundamental rights might
be used. Despite the fact that this provision basically encourages the supreme
court to protect fundamental rights violations, it has been used for a much
wider purpose than anticipated, establishing broad standards with legal force
to fill the void until the General Assembly takes action to make the necessary
law. In addition to the writs outlined above, the clause grants the supreme
court the jurisdiction to make any order or offer any directives it thinks
appropriate to afford proper relief to the petitioners. It may issue an
announcement or order presuming that it is the suitable aid and can shape
relief to meet the demands of the specified circumstance. In M. C. Mehta
v. UOI[9], this was
made clear. As per Article 32(1), this court may devise any method that is
suitable to accomplish the proceeding's special objective, which is to enforce
a basic right. It also has the implied ability to give any instruction, orders,
or injunction that is needed in a specific situation, particularly any
incidental or ancillary power necessary to achieve the implementation of the
Essential Right.
As a consequence of the Supreme
Court's activism, Article 32 now includes the authority to award damages if a
person's fundamental right has been violated and there is no otherwise
acceptable remedy to provide relief and compensation for the petitioner's harm.
In doing so, it contends that its authority under Article 32 is not just
injunctive but also therapeutic, and that without this power, the Article's
effectiveness, oppression, and weakening would ensue. In a similar vein, the
court in Rudul Shah v. State of Bihar[10]
granted the petitioner compensation from the state for the state's violation of
his right to personal liberty under Article 21 by keeping him in prison for 14
years after he had been exonerated. Since Rudul Shah, victims or their families
have won damages in several cases involving police brutality or harassment,
deaths in custody, medical malpractice, pollution of the environment, and
tortuous acts committed by government employees. In light of this, the field of
compensation law around this clause has entered a new age.
2.2 - Article 226 : Writ jurisdiction
of High Court
This provision is crucial since it
grants the High Court the same writ authority as the supreme court under
Article 32. One conceivable reading is that it empowers the legal executive to
take drastic actions. For the purpose of ensuring the protection of
constitutional rights and liberties, the Supreme Court has the authority to
issue writs, orders, and guidelines, including writs of habeas corpus,
mandamus, or quo warranto, and certiorari. This jurisdiction is noteworthy
because it allows the high court to issue writs for purposes other than the
delivery of fundamental rights.
These goals are consistent with
directing the actions of state chemicals within certain parameters. With these
words, the High Court can get involved in any case for any reason, even if
there wasn't a constitutional violation. This capability is crucial for the law
and order in India because public officials often abuse the executive,
adjudicative, and legislative powers that they have. Since the Indian
Constitution does not support the doctrine of separation of powers in its
strictest sense, writ court authority in the Indian system is more solid than
in the English system.
The Supreme Court has always made clear
that its jurisdiction to issue writs is supervisory rather than appellate. What
this implies is that the High Court may only evaluate the process by which the
authority makes its decision, not the validity of the judgment itself, even
though doing so would be a violation of this article. It merely makes sure that
the authority decides things in line with the law and, if relevant, natural
justice principles. However, if the authority behaves in an unreasonable or
unfair way, the court can step in. This clause suggests that judicial review
may be bound to the dynamic interaction rather than the actual judgment itself.
Under Article 226, the High Court
does not typically issue a writ at the point when an option powerful corrective
is accessible , in contrast to Article 32. According to this provision, the
High Court can use affidavits to choose inquiries of both regulation and truth,
and it can even allow a person who has signed such an affidavit to be
cross-examined. It can also step in if the question is about a question that is
both a question of law and a question of fact. A petition under Article 226, on
the other hand, is not the best course of action in situations where factual
disputes arise. In Bandhua Mukti Morcha v. the UOI[11] (1984),
it was determined that Article 226 has a much wider scope than Article 32
because it gives the High Court the authority to give requests, bearings, and
writs for the implementation of legitimate freedoms that are given to the
disadvantaged by statute and are just as important as the fundamental rights,
in addition to the enforcement of fundamental right’s. In Veerappa Pillai
v. Raman and Raman Restricted[12]
(1952), it was held that the writs alluded to in Article 226 were plainly
expected to empower the high court to give them in situations where subordinate
bodies or officials act without locale, or in overabundance of ward, or
disregarding normal equity standards, or decline to practice a purview vested
in them, or there is an undeniable blunder on the substance of the record, and
such demonstration, oversight, mistake, or abundance has brought about
shamefulness. No matter how extensive the jurisdiction is, it does not seem to
be adequate for the high court to transfigure it into a Court of Appeal, survey the validity of the contested
judgements, and conclude what is the legitimate position to be taken or the
request that should be made.
CHAPTER 3
DOCTRINES FORMULATED BY COURTS USING
THE POWER OF JUDICIAL REVIEW IN INDIA
Judicial scrutiny of both existing
and proposed legislation is addressed under Article 13 of the Constitution.
Both of the “Doctrine of Severability” and the “Doctrine of Eclipse”, two of
the most cardinal judicial review ideas, were inherited by this article.
Article 13 guarantees judicial review of all statutes, whether they are old or
new in India. As part of their review function, the courts have also developed
novel legal ideas including the Doctrine of Pith and Substance and the Doctrine
of Colorable Legislation. Through its judicial review power, the Supreme Court
established these ideas through its interpretation of numerous Articles. The
concept of future overruling is used to examine judicial precedent. The Supreme
Court, through interpreting the Constitution, provides these explanations.
3.1 – Doctrine of pith and substance
The difference between "pith and
substance" is that the former refers to the real character or essence of
something, while the latter refers to the most significant or vital portion.
According to the notion of “Pith and Substance”, the court considers the meat
of the case while assessing whether a statute applies to an issue covered by
the Lists or not. So long as the chemical is legal under Association Rundown,
the fact that it may also be illegal under State Rundown is irrelevant.
In India, the doctrine has been
implemented to give the otherwise rigid power distribution plan some leeway.
The justification for reception of this convention is that assuming each
regulation were to be announced inacceptable because it infringed controls, the
influences of the law making body would be radically outlined. The first
significant supreme court decision to use the Doctrine of Pith and Substance is
The State of Bom and Anr v. F.N.
Balsara[13]. The
Court affirmed “the Doctrine of Pith and Substance” and considered that it is
essential to determine which List a legislation falls under in order to control
its factual essence and character. In the ruling of Prafulla Kumar
Mukherjee v. The Bank of Commerce[14],
the circumstances under which a State Legislature selling with a trifling
subject may parenthetically move any item on the Union List were succinctly
explained. According to the courts decision, any ancillary or accidental
impacts of a State Legislature-enacted resolution must be placed on the
Appropriate List in accordance with its true nature and character.
Hence, that’s what we see assuming
the infringement by the State Governing body is just accidental in nature, it
won’t influence the Capability of the State Council to order the law being
referred to. In addition, if the content of the legislation is included in the
Union List, any accidental encroachment on the State List would not make it
unacceptable. However, the Concurrent List depicts a slightly alternative scenario
for Pith and Substance. The State List infraction may be ruled null and invalid
if the infringing facility cannot be made to function within the parameters of
existing legislation. If a piece of legislation slide under an entry in the
State List drafted by the State Legislature and that entry contains a provision
that directly and substantially refers to a subject listed in the Concurrent
List, then the two lists are deemed to be concurrent.
CHAPTER 4
RULE OF LAW: AN ESSENTIAL COMPONENT
OF JUDICIAL REVIEW IN INDIA
The rule of law advanced considerably
thanks to the UK's constitutional system. It demonstrates that the law is
impartial and that all members of society are subject to it. Dicey explains the
rule of law in three different perspectives. He describes it as a system in
which regular laws are supreme over the effects of arbitrary authority and the
government has no discretion, prerogatives, or arbitrary power. Except for a
clear violation of law recognized in the regular legal process through the
normal courts of the nation, no man may be indicted or legally made to suffer
in body or in goods. If a guy breaks the law, he may be punished for that, but
not for everything else. When it comes to the English, only the rule of law
will do. Dicey argues that this also indicates that there is no longer any
difference between classes in terms of who is subject to the ordinary law of
the country as administered by ordinary law courts. It's not only that nobody
gets special treatment under the law here.[15]
It's still perilous. No matter his status, the common law of the realm applies
to him, and the common courts can rule in his favor. Prof. Dicey expounded on
the concept of universal legal equality. You might use language along the lines
of, Here, everyone from the Prime Minister down to the constable and the tax
collector bears the same responsibility as any other citizen for every act done
without legal justification. Dicey argues, thirdly, that the term "Rule of
Law" can be discarded as a equation for communicating the reality that the
law of the constitution in the US is not the birthplace but the result of
individual entities as distinct and required by the courts, whereas in
supplementary countries, the law of the constitution is a part of the
constitutional code. This demonstrates that the fundamental constitutional
concepts were recognized on the groundwork of the ancient common law and not as
separate entities. That is to say, cases like Wilkes, where rights were
interpreted narrowly, are not the result of constitutional amendments but
rather of judicial decisions. India possesses several strengths that, if put to
good use, may elevate the country to global prominence and raise living
standards for all its people. It is the site of one of the oldest among the
world’s communities, whose Dharma spread values like peace, harmony, and
nonviolence around the globe. It has a young population with great potential
for the kinds of things that help nations flourish in an information society. The
Constitution was established via popular vote, and the country has a history of
methodical reform and harmonious coexistence.
Rule of Law is not a foreign notion
to a culture that was shaped by the Dharma philosophy. It is ingrained in the
Indian method of lifespan and ethos. In the context of the violence in Gujarat,
the supreme court lately repeated the administration of Raj Dharma. The
universal values of justice and tolerance are at the basis of the Rule of Laws
spiritual content—broad-mindedness of persons who are different from you,
lenience of schemes, principles, and performs that are different from yours,
broad-mindedness with the goal of peaceful coexistence in a varied biosphere,
regarding the civil rights of others in the same way that you claim your own.
For people with common sense, the proposition is too straightforward to require
an explanation. Respect for all peoples fundamental human rights and an
awareness of their equality are central to the Rule of Law. It requests
acknowledgment of the incomparability of regulation and readiness to maintain
it howsoever unsavoury its ramifications are. To put it succinctly, the Rule of
Law is grounded on a mentality that accepts differences, respects everyone, and
succumbs to the shared understanding uttered in the procedure of law in the
event of disagreement.
In a democratic system where
equality, Fundamental Rights, and the will of the persons are respected, the
norm of law is absolutely compulsory. Rule of a regulation doesn’t exist where
erratic activity of force wins. To put it another way, the law and order
requires a plan of checks and balances to stop the arbitrary and authoritarian
use of community authority. The lawful scheme develops pertinent to Rule of Law
in this setting. The division, distribution, and management of state power
under the Constitution is intended to prevent arbitrariness and establish
accountability (to the law). The division of abilities among the Middle, state
and nearby state run administrations from one viewpoint, and the detachment of
abilities between the Council, Leader and Legal executive on the other, is a
protected plan to guarantee the guideline of balanced governance under Law and
order. By resolving debates among residents and the state, the judiciary with authority
to review powers plays a key part in the
upkeep of the guidelines of legal command as outlined in a written
Constitution. Rule of Law is a alive realism in legitimate ascendency due to
the complementarity of constitutional organizations and their volume to purpose
within their genuine authorities. Because it is the primary arbitrator below
the Constitution to defend citizens rights and determine the bounds of
community authority, the institution of the Judiciary is always the subject of
public discourses on guideline regulation. The Judges is always in a situation
to finalize the law in a written federal Constitution based on power division
and guaranteed rights. a fact. According to Article 141 of the Indian
Constitution, all Indian courts are obligated to shadow the law made by the
supreme court. Due to their concurrent jurisdiction, the supreme court and the
high court can use judicial review, an essential tool for preventing arbitrary
state action, to determine whether administrative and legislative actions are
constitutional. Due to the scope and complexity of its powers under
examination, the Indian Supreme Court may be the most important court in the
planet for preserving the law and order in the greatest democracy in the world.
The Rule of Law approach to
government maintains that independent judicial review is an inherent and
inevitable result of its core principles. Open collections have the potential
to correctly represent their public obligation as a result of government
control. Regulatory law is a subfield of public law that investigates the
myriad of governmental agencies tasked with carrying out the implementation of
public policy. In a democratic government that upholds the bylaw and
guidelines, this is more or less the concept that underlies the passing of the
torch from one leader to the next. The authority of the court is transformed
into a sacred order for the assurance and implementation of privileges when
there is a established ensure of those prerogatives. In India, constitutional
medicine is precisely defined under Article 32 in the supreme court and under
Article 226 in the high court, respectively. Because of this, obeying the law
will eventually become second nature to you. As has been shown, this component
of the Indian Constitution is an essential part of the whole. Both the
Equivalent Insurance Proviso of the Fourteenth Amendment and Law and order, a
principle with its roots in England, are included into Article 14 of the
Constitution of the US. In accordance with the guidelines and principals of
law, all levels of government are obligated to maintain both the text and the
spirit of the law. Sir Ivor Jennings drew parallels between the undefined
character of it and the behaviour of a wild horse.
Shortly after the Indian Constitution
went into force in 1950, the Supreme Court interpreted Article 21 elucidate in
a way that was quite restricted and restrictive in the case of A. K. Gopalan.
The court here followed the majority opinion that "procedure established
by law" refers to State-made orders and restraints and hence did not
include normal equity principles in its ruling. It was determined by the court
that the rights guaranteed in Article 19 could not be exercised under Article
21. Gopalan's fate was sealed immediately after the Constitution took effect,
not less than 49 years back. The major basis for the ruling was the
Constitution's contents and the circumstances of the case at hand. Little has
changed in the legal system. A similar High Court overturned the concept of eliteness
of basic privileges developed in Gopalan's case roughly twenty years later in
the Bank Nationalization case, and another high court reached a decision on the
legality of defensive confinement with respect to Article 19 four years after
in 1974 in the case of Hardhan Saha. In Maneka Gandhi v UOI[16], the
Supreme Court ruled in 1978 that the process envisioned by Article 21 necessity
be right, just, and fair and not inconsistent, 28 years after the decision in
Gopalan’s case. It should finish the assessment of sensibility and the
technique ought to be in similarity with the standards of regular equity and
except if it was in this way, it would be no strategy by any means and the
necessity of object would not be fulfilled. The courts have, in this manner,
been creating legal mediation in cases regarding infringement of basic freedoms
as a continuous legal cycle.
4.1 - Separation of powers and power
of judicial review in india
The creation of a specific written
Constitution as fundamental law was prompted by the requirement that the State
adhere to the law. Because it was inconsistent with this law, the ordinary law
was invalid because it was above it. However, who would be responsible for
determining when common law violated the Constitution. The standard of
detachment of abilities or elements of the State into regulative, chief and
legal was conjured to track down the response. Strangely, this principle could
support both contradictory answers equally. From one viewpoint, it was asked
that the partition of abilities or capabilities expected that the Assembly, the
Leader and the Legal executive ought to each keep inside its own circle.
Montesquieu also shaft of the joint complementary and constraining of the
legislative and executive powers and emphasized the need to separate the
judicial and executive branches of administration. From whence does this
hypothetically existing power balance originate? The following is Geoffrey
Marshall's feeble attempt at an answer to your question: Perhaps because he
confused the "theory of a blended government with the" "division
of powers" doctrine, both Montesquieu nor a number of others have been
able to decide whether or not a single branch being checked by another is a
breach of the separation of powers doctrine because it interferes with the job
of the other branch, or whether or not it is an example of the separation of
powers doctrine because it achieves the goal of the "checks and
balances" theory. This plan raises issues because, if put into action, it
would run opposite to the notion of majority rule, which maintains that the
people furnish the governing body with their sovereign rights. As a result, the
proposal raises problems. The establishment of written constitutions is one
potential course of action that communities might take.
These
constitutions would function as crucial laws above regular legislation,
separating the effects of constituent laws from restrictions over regular
legislation. A more satisfying response is the claim that the use of the authority
to review by judiciary power should not be seen as having an impact on
legislation.
CHAPTER 5
JUDICIAL REVIEW AS THE PART OF BASIC
STRUCTURE OF THE CONSTITUTION IN INDIA
The Indian Constitution was written
with judicial review in mind. The Supreme Court maintained this view from the
beginning of the Sajjan Singh case through the Golaknath case and the
fundamental rights case. In contrast to the dissenting judgment in Sajjan
Singh's case, the larger number decision in Golaknath's scenario stated that
the word regulation under Article 13 of the Constitution contain Sacred
Alterations and so confirmed the capability of legal audit over Changes to the
Constitution. This section was changed in the Kesavananda Bharati case to
emphasize that the Constitution's alteration technique must not compromise or
undermine the document's fundamental framework. In the Minerva Mills case,
judicial review control was also emphasized for the purpose of preserving
consensus and the rule of law. The authority of review, which was further
reinforced in various cases, was never out of the question since the
Constitution provides for balanced governance on the activities of the assembly
and the leader and establishes such limits within its own boundaries. The
Executive Branch and the Legislature are free to do whatever they see
necessary. As a consequence of their supervisory function, the courts are in a
position to examine laws and eliminate any threats they may pose to our
Constitutional democracy. This dread of over taxation resonated with both the
States and the Union, making it the pivotal point around which the many wheels
of federalism moved.
Although the law is a fluid
phenomenon that changes to reflect the needs of a changing society and era,
there are some statutes that have not kept pace with the times. The courts play
an important role here by helping to bridge the gap between the old and new
civilizations' legal systems. In a democratic society, the majority often rules
at the expense of the minority. The legal executive's capacity to direct legal
audits serves to shield minorities from the State's arbitrary, dictatorial, and
capricious powers at the expense of the majority. Traditional criticisms of the
review process, such as the Judiciary's usurpation of command and control and
the overthrow of the partition of abilities, etc., are moot given that the only
effective tool to restrain the all-powerful Legislature and Executive from
acting arbitrarily is authority to review by judiciary. There are certain
similarities between Minerva Mills, Sampath Kumar, and Samba Murthi's
decisions. In all of them, the Court recognized authority to review by
judiciary as a principle tenet of the system, but not as a way to ensure the
Constitution's enduring main characteristics. But rather out of a concern that
its absenteeism could steer to the end of democracy and the degeneration of the
arbitrary use of power. For this reason, the Court concluded in each of these
judgments that, while judicial review cannot be eliminated entirely, it can be
reduced to a lesser extent and replaced by an equally effective alternative
remedy. In the Minerva Mills Case, Justice Bhagwati was the first
to suggest that a part might be changed despite being an integral part of the
building. It is doubtful that the Court in Sampath Kumar and Sambamurthy looked
into the credibility of such a proposal. If something is described as "fundamental"
to the Constitution design, it is crucial to the document's character. In such
a context, it's hard to see any alternative strategy working as well. Simply
removing this feature or replacing it with another concept could dilute the
original intent and weaken the overall structure.
Additionally, it would suggest that
the feature is not so crucial. Additionally, examination by judiciary possesses
firm characteristics that cannot be absent. The preparation of a legal psyche
and the freedom stretched out to the legal officials are a portion of the
requirements for viable legal survey, which are missing in any component other
than legal audit howsoever proficient it be. Therefore, the Courts assertion
that, notwithstanding the reality that authority by the judiciary to
investigate is a fundamental component, it is possible to substitute equally
effective methods in its place is certain to be contested. This is the context
in which the result in L. Chandra Kumar v. UOI[17] develops
extremely significant. A nine-member constitutional bench made up the decision
in this case. In Minerva Mills case, the court repeated its position that
authority by the judiciary to review was a fundamental fragment of the
Constitutions. The Supreme Court authority under Articles 226 and 227 of the
Indian Constitution, is also a vital component of the Constitution and cannot
be altered. It was maintained that the Artticle 226 and 227 jurisdiction of the
High Court was equally important to the Supreme Court Article 32 jurisdiction.
Due to its unique position, the court
system was able to highlight the significance of judicial review. Dr. Ambedkar
said that Article 32, the "Most Significant Clause," was crucial in
forming the Constitution's core framework when it was ratified by the
Constituent Assembly. The Court may have been swayed by this comment. According
to the Court, the powers delegated to High Court in Articles 226 and 227 are
extensive and cannot be limited. The court stated that there was substantial
room for improvement in the Tribunal's administration of justice and that the
remedy given by Article 136 was too costly and would lead to the Supreme Court
being overcrowded. The Court concluded that the Division Bench of the High
Court has authority to review Tribunal decisions. The Court went farther than
what was necessary by the Indian Constitution and made it possible for judicial
review to be sought of judgments taken by any court, even courts functioning
inside the degree of their special competences.
The Indian Supreme Court has ruled
that Articles 32, 226, and 227 do not allow for any kind of relief for judicial
reviews, despite its previous rulings in the Minerva Mills, Sampath Kumar, and
Samba Murthi cases that other methods were just as effective as judicial review.
According to the court's analysis, the Tribunal's ability to conduct reviews is
supplemental to, rather than in place of, High Court. Judicial review was
originally a relatively unimportant part of the framework, but after the L.
Chandra Kumar case it became abundantly evident that this was no longer the
case. Judicial review is essential to our legal system, as shown by the Court's
deep understanding and its viewpoint change in Chandra Kumar. In the Chandra
Kumar decision, however, the court made judicial analysis a central pillar of
the Constitution's framework. The court of law has previously ruled that
judicial review was only peripherally related to other Constitutional aims. The
Supreme Court's ruling in Chandra Kumar emphasized the freedom of the legal
executive from other authoritative bodies. Furthermore, the judicature importance in the contemporary world is
expanding. Judicial independence must be documented as part of the fundamental
construction since it is crucial for preserving the confidence in the court
regarding judicial review.
5.1 - Amending power of the
legislature and power of judicial review
Although India is a parliamentary
vote based system, the constitution is the highest law. This opens the door for
judicial scrutiny of the norm and even of a protected correction that aims to
adjust the essential construction of the constitution. Any administrative
action can be challenged in court thanks to Articles 32, 136, 226, and 227 of
the Indian Constitution, which establish a comprehensive framework for judicial
oversight of the administration. After ignoring the standard way of thinking
for quite a long time, the Supreme Court declare review authority over
constitutional modifications in the Golaknath v State of Punjab. The Supreme
Court said in an verdict ruling on Kesavananda Bharati's lawsuit that although
certain advantages are transferable, this should not be allowed to compromise
the Constitution's underlying framework. Even though the Supreme Court changed
its mind and admitted Parliament's constituent power, it made it clear that
Parliament's authority could be used only within the Constitution's established
parameters. Despite the fact that the court previously denied this authority,
it has been granted again. Fear of a Legislature dominated by the new
generation of politicians—the professional, pragmatic politicians who engage in
a dynamic game of power politics—is the main fear-based argument. It is widely
agreed that this apprehension is what prompted the Supreme Court to take such a
dramatic turn in its approach in the Golaknath case in 1967 and the Kesavananda
Bharati case two years later. The Supreme Court of India was ingraied to
safeguard Part III of the Constitution from the inexperienced functioning of
the modern Indian Legislature in the wake of the political chaos that followed
Nehru's death and the nonappearance of some other strong heads of the public
reason.
As a result, the court was successful
in accomplishing its mission of restricting the legislative branch's capacity
to make amendments”. The Supreme Court depended on the idea of fundamental
formation while making its decision over whether or not to sustain the
regulation requiring a majority of two-thirds of the votes cast. The contention
of dread became the "save the court" slogan in the case of “Indira
Nehru Gandhi”, and the courtroom was able to successfully propagandize the
message that the court is resolving the topic in compliance with the
established law. If the contention of dread had made it feasible for Part III
of the Constitution to be implemented, then the image of according to the law
would have made it possible to appease both the decision-makers and the groups
that opposed the constitutional amendment. Critics contend that the Supreme
Court, nonetheless of the facts, was scared of the totalitarian rule of
party-political magnates and their desire to grab control of the political
process. They say that this fear motivated the Court's decision to decide in
favour of the defendants. One school of thought contends that the Supreme Court
remained silent from the time it was established in 1789 until 1967 because its
members were afraid of being removed from office. Even when the Court shown its
mental power in a few historic judgements that created a firm foundation of
public trust, it continued to stand on the sidelines rather than becoming
involved in the conflict. Some people believe that fear, rather than moderation
or conservatism, should be connected with these terms. Due to the fact that it
suffered its own setbacks under the Emergency period, the Court was subjected
to an excessive amount of criticism. The Supreme Court has adhered that the
government cannot use the 10th Schedule subsection of the Constitution as a
shield from reassessment by the judiciary in cases where it has violated
fundamental rights. The verdict was handed down by a nine-member Constitutional
Bench led by Chief Equity V.K. Sabharwal on January 11, 2007. According to the
document, established settlement by looking at the nature and degree of an
infraction of a Fundamental Right will not be required for validation for
delivering protection, not cover assurance, on the requirements recognized for
the 10th Timetable by sacred revisions. The court said, "It's not possible
to present in a single plan the power to order a regulation and the power to
decide the validity of the limitations."
It noted: The only independent organ
that can examine the legitimacy of the restriction on freedoms in Part III
(Fundamental Rights as mentioned in the Constitution) is the Judiciary.
However, the court supported the constitutionality of Article 31B, which grants
Parliament the authority to enact laws for the Ninth Schedule.[18] In any
case, it said that despite the fact that a Demonstration is placed in the 10th
Timetable, its arrangements would be available to go after on the ground that
they obliterate or harm the essential design, if the Principal Freedoms are
removed or repealed relating to the fundamental construction. According to the
Court, Parliament has the power to alter the Constitution and place laws in the
Ninth Schedule under Article 368, but this authority is limited and subject to
review by judiciary. The validity of rules inserted into the 10th Timetable
after April 24, 1973 (when the High Court backed the fundamental design precept
in the Kesavananda Bharati) would be subject to a test, according to a
five-part Constitution seats orientation. The Court made a conclusion that the
fundamental right experiment would be used to decide regardless of whether
regulations remembered for the “Ninth Schedule” were substantial. The High Court subsequently upheld
Parliaments authority to include a regulation in the Timetable. However, it
stated that such laws do not enjoy universal protection and are subject to
legal examination. As an outcome, the procedure of review by judiciary acts as
a counteracting and municipalization effect over numerous community classes and
attention collections to maintain a sufficient balance.
CHAPTER 6
CONCLUSION
Conclusion
Judicial scrutiny is the product of a
civilization's maturing mind. The law has an obligation to uphold the
Constitution. Constitutionalism, which promotes limited government, has
judicial review as its bedrock principle. The constitutional executive is
responsible for maintaining state institutions within the limits of authority
delegated to them. The rule of law and the requirement that community forms act
in agreement with the law are the foundations upon which review by the
judiciary is legitimate. When decisions are made outside of the political
process of effective control, examination by the judiciary can be used to hold
those in positions of authority accountable for how they exercise that power.
Laws that are random, unfair, irritating, and illegal can be checked using
judicial review, which is a powerful tool.
The Indian Constitution grants
extensive authority to our independent judiciary, particularly the Apex Court,
over legislative and executive actions. Judicial review cannot have its
foundational structure changed even by a constitutional amendment. The courts
have a reputation for being thorough in their review processes. As a result,
the integrity and independence of our courts are of the utmost rank not only to
the juries but also to the general public who pursue legal compensation for
alleged legal harm or executive excess. The Supreme Court and the High Court’s
of India assumed the power to uphold fundamental rights. The lawful executive
can examine not just the legality of regulations and leader activities yet in
totalling of protected alterations. It has the final say over Constitution
considerations, and its demands, upheld with the ability to reject scorn, are
applicable to everyone across the entire nation. The Supreme Court has issued
rulings of far-reaching significance ever since it was established. These
rulings have involved not only the resolution of arguments but also the
formulation of civic rules, the founding of the rule of law and constitutionalism.
The Supreme Court’s power has grown
in recent years as a consequence of the recent determination that assessment by
the judiciary is a necessary fraction of the Constitution. The Supreme Court
has not confined itself to only interpreting the language of the Constitution;
rather, it has remarked on the content of a variety of different policies. The
concept of assigning specific responsibilities to certain groups of individuals
is essential to both law and order, the two pillars upon which the Indian
Constitution rests. Every move made by the state must be evaluated in beams of
the lawfulness of law whenever the courts are asked to decide on this matter.
When necessary, we resort to this method. The lawful system that guarantees
checks and balances in regards with the standard of legal enactment is formed
on the division of authority amongst the legislative, executive, and judicial
branches, on the one hand, and the separation of influences between the
federal, state, and local government, on the other. Maintaining the rule of law
in India requires that disagreements between citizens and the government be
investigated and ultimately resolved, and this is made possible by our written
Constitution. The Supreme Court of India is working to remove barriers between
the impoverished and the judicial system to ensure that everyone in India has
access to justice. Expanding the scope of locus standi is another option for
reaching this objective. The Supreme Court's response to its expanded
responsibility over the last 25 years has been exemplary. Public interest
litigation has been established as a result of this, with affluent individuals
allowing non-political third parties to advocate for the rights of the
economically and politically powerless. The courts in India have virtually put
an end to the idea of division of abilities by laying out investigation by the
judiciary as a central piece of the constitution, notwithstanding the power to
review's unquestionable relevance. Despite the significance of the right to
review, this is the case. This also suggested that the Indian legal system has
its own take on the conception of “checks and balances”. The judiciary will
give the situation an unlimited position to examination anything the law making
body does. Because review by judiciary is one of the fundamental provisions of
the Indian Constitution neither the Parliament nor the Legislative Assembly can
be granted the unchallenged authority to take someone’s life or liberty.
Judicial review control is
fundamental to the Indian Constitution because without it, there could be no
administrative laws and the rule of law would be nothing more than an appealing
ideal with no chance of ever being realized. Therefore, the legal survey is a
fundamental and fundamental part of the Constitution and its repeal would have
a significant impact on the Constitution's essential construction and thus is
not possible. The Court of International Justice was founded by the Indian
Constitution to guarantee law and order and to oversee national organization
operations, power corridors, and welfare distribution. Therefore, the bench
acts as a stabilizing factor, providing both a place to think creatively and a
focal point for the local economy. Independence was a major tenet of the
constitutional structure when it was established, so that it could fulfill its
constitutional mandate. This important component of the legal executive was
highlighted in the 1973 High Court decision in the Kesavananda Bharati case,
which stated that it formed part of the fundamental construction of the
Established plan. In order to guarantee impartiality in the administration of
justice, the judiciary is distinct from the executive. The legal executive
plays a critical focal part to play in our flourishing vote based system and
disregards erratic chief activity. The constitution grants the higher
judicature the power to rule on the legality of a provision and the legislative
competence of the bodies that make laws. The highest judiciary in India has the
broadest and most extensive judicial review system of any democratic system in
the world.
Judicial review is predicated on the
assumption that the Constitution is the highest law. In the American beginning,
it is the final basis of all party-political experts because it has been so
intended by the people. The legislature is granted very few source powers by
the Constitution. If the legislature violates these restrictions, whether
intentionally or unintentionally, there must be someone in charge who can keep
it in check, thwart its unlawful attempt, and thus show the people's will as
expressed in the constitution. Judicial activism is a word used by critics of
the judiciary's enlarged role to denote the judiciary's use of its review
power.
The criticism's central contention is
that the judiciary is destroying the nation by usurping the legislative and
executive branches through its directives to the administration. It is
certainly permissible for judges to intervene and safeguard obedience with the
law making command in situations in which the executive either ignores or
thwarts the legislative will or refuses to carry it out. The court cannot give
up hope or turn a blind eye when it learns of serious violations of fundamental
human rights and is satisfied about them. The judiciary cannot evade or delay
decisions. The nation has recently witnessed significant examples of useful
legal activism. It is undeniable that judicature advocacy has significantly
improved the conditions of the nations populace. It has rectified a number of
wrongs that individuals and states have done. The courts have come up with new
ways to help the poor in society. Anything in the opposite direction would be
analogous to proposing the end of nuptial in instruction to address the issue
of divorce. In addition, the socioeconomic movement that was brought about by
the court has, at the very least, preserved the peoples hope for justice and,
as a result, diverted them away from seeking redress through self-help or a
private justice system. This is essential for maintaining the self-governing
scheme and establishing a rule of law in culture. As a result, in this regard,
one must be both daring and careful, and the bench must continue to learn
primarily through experience.
[1] AIR 1958 Punj 63
[2] A.S.Anand,:Judicial Review-Judicial Activism-Need for
caution JILI Vol.42, P.149.
[3] (1803)1 Cranch 137, 2 L.
Ed. 60
[4] AIR 1950 SC 27
[5] AIR 1975 SC 1590
[6] AIR 1987 SC 386
[7] AIR 1963 SC 996
[8] (1997) 10 SCC 549
[9] (1992) 3 SCC 256
[10] (1983) 4 SCC 141
[11] (1997) 10 SCC 549
[12] AIR 192, 1952 SCR 583
[13] AIR 318, 1951 SCR 682
[14] (1947) 49 BOMLR 568
[15] E.C.S. Wade,Dicey: Introduction to the Study of the
Constitution,10th edition, London, Macmillan,1959,p.188.
[16] AIR 1978 SC 597
[17] AIR 1997 SC 1125
[18] Kaur Sarbjit,: Judicial Review and the Ninth Schedule of the Constitution, JCPS
Article Information
JUDICIAL REVIEW IN INDIA: HISTORICAL DEVELOPMENT AND PERSPECTIVE
Authors: LALHRUAIPUII
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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