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JUDICIAL REVIEW IN INDIA: IMPORTANCE, LANDMARK CASES AND CRITICISM BY: - ADV. HARSHADA KARKE
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JUDICIAL REVIEW IN INDIA: IMPORTANCE,
LANDMARK CASES AND CRITICISM
AUTHORED
BY: - ADV. HARSHADA KARKE
Student of
LLM, Modern Law College, Pune
Introduction
The Structure of India gives for an independent judiciary that acts as a gatekeeper of the Structure and secures the rights of the citizens. One of the key capacities of the Judiciary is to guarantee that the laws passed by the governing body and the activities of the official are in line with the Structure. Typically known as Judiciary review, and it is a basic include of the Indian Structure. Judiciary review in India stands as a foundation of the Structure, guaranteeing that both authoritative and official activities acclimate to the protected system. This crucial prepare, motivated by the U.S. framework however extraordinarily custom fitted to the Indian setting, serves as a gatekeeper of citizens' rights and a rampart against self-assertive administration. In this investigation, we dive into the multifaceted nature of Judicial review, following its verifiable beginnings, understanding its sweeping scope, and increasing in value its significant effect on India's lawful landscape.
The Structure of India gives for an independent judiciary that acts as a gatekeeper of the Structure and secures the rights of the citizens. One of the key capacities of the Judiciary is to guarantee that the laws passed by the governing body and the activities of the official are in line with the Structure. Typically known as Judiciary review, and it is a basic include of the Indian Structure. Judiciary review in India stands as a foundation of the Structure, guaranteeing that both authoritative and official activities acclimate to the protected system. This crucial prepare, motivated by the U.S. framework however extraordinarily custom fitted to the Indian setting, serves as a gatekeeper of citizens' rights and a rampart against self-assertive administration. In this investigation, we dive into the multifaceted nature of Judicial review, following its verifiable beginnings, understanding its sweeping scope, and increasing in value its significant effect on India's lawful landscape.
History of
Judicial Review in India
The
concept of Judicial review begun within the Joined together States, where the Preeminent Court built up its specialist to strike down laws
that were in infringement of the US Structure. In India, the concept of Judicial review was borrowed from
the US Structure, but it was adjusted to suit the Indian setting. US Structure is one of the
Sources of Indian Structure. The beginning of Judicial review in India can be followed back to the impact of the U.S. Structure. In any case, India has adjusted this concept to fit
its interesting protected and societal texture. This chronicled travel reflects India's
commitment to a energetic and advancing Judicial framework, able of tending to the complexities of
a different and crowded majority rule
government. The control of Judicial review was to begin with built up by the Preeminent Court within the case of Shankari Prasad v. Union of India (1951),
where it was held that the Structure did not give for any restriction on the revising control of the Parliament. In any
case, within the case of Kesavananda Bharati v. State of Kerala
(1973), the Preeminent Court held that there were confinements on the altering control of the Parliament, which the
fundamental structure of the Structure seem not be changed.
Constitutional
Provisions for Judicial review
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Articles
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Provisions
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Article 13
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Article 32
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Article 226
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Article 131
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Article 132
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Article 133
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Article 134
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Article 135
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Article 13
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Article 143
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Article 227
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Article 245
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Article 246
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Article 251 and 254
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Article 372
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Scope of
Judicial Review in India
The
scope of Judicial review in India is very wide, and it covers not as it were the laws passed by
the council but moreover the activities of the official. The courts have
the control to strike down any
law that's
in
infringement of the Structure, and they can moreover issue writs like
Habeas Corpus, Mandamus, Disallowance, Certiorari, and Quo Warranto to ensure the basic rights of the
citizens. The Structure gives for five sorts of writs, which are:
Habeas Corpus:
Literal meaning of Habeas
Corpus is 'to have the body of'. This type of writ is used when unlawful
detention has occurred to enforce the fundamental right of individual liberty.
When this writ is issued, a person or a authority who has arrested a another
person has to bring that another person before the court.
Mandamus:
Literal meaning of
Mandamus is 'we command.' This type of writ is used when a public official or
public body or corporation or lower court or tribunal or even the government
has not done the needed duty or refused to do. After this writ is issued, the
duty needs to be resumed.
Prohibition:
Literal meaning of
Prohibition is 'to forbid.' This type of writ is used when a court which is in
lower position i.e., the lower court exceeds its jurisdiction or un pursue a
jurisdiction which is not possessed by it.
Certiorari:
Literal meaning of
Certiorari is 'to be certified' or 'to be informed.' This type of writ is used
when a transfer of case which is pending in the lower courts or the order given
by lower courts in a case needs to be quashed. This writ is issued on the basis
of an excess of jurisdiction or lack of jurisdiction or error of law. After
this writ is issued, mistakes in the judiciary are cured.
Quo-Warranto:
Literal meaning of
Quo-Warranto is 'by what authority or warrant.' This type of writ is used when
an illegal usurpation of a public office by a person is done. After this writ
is issued, the legality of a claim of a person to office is enquired.
Limitations of
Judicial Review in India
Whereas Judicial review is a fundamental perspective of the Indian Structure, it has too been subject to feedback from different quarters. A few of the common reactions of legal review in India are: Unelected
Judges: One of the essential reactions of Judicial review is that it gives
unelected judges the control to strike down laws sanctioned by the chosen agents of the individuals. Pundits contend that this undermines the majority
rule handle and leads to a circumstance where a little gather of judges can reject the choices of the chosen agents. Judicial Overextend: Another feedback of Judicial review is that it can lead to
Judicial exceed, where the Judicial begins infringing upon the space of the administrative and official branches of the
government. Pundits contend
that this will
lead to an awkwardness within the
partition of
powers and lead to a circumstance where the Judiciary gets to be as well powerful. Delay
and Cost:
Faultfinders too contend that the method of Judicial review can be time-consuming and costly, which can result in deferred equity for the citizens. This could be especially risky in cases where the government is attempting to actualize critical approach measures. Need of Responsibility: Faultfinders contend that the Judiciary isn't responsible to the individuals within the same way as the chosen agents of the individuals. They contend that since the judges
are named
through a collegium framework, they are not responsible to the citizens, and their choices cannot be effortlessly challenged. Restricted Skill: Faultfinders contend that judges may not have the vital ability to form decisions in certain
complex arrangement zones,
such as financial matters or science. This could result in problematic policy outcomes and can constrain the government's capacity to actualize compelling approaches. In conclusion,
whereas Judicial review may be a pivotal angle of the Indian Structure, it has moreover been subject to feedback from different quarters. Pundits contend that it undermines
the democratic process, can lead to Judicial overreach, and may be time-consuming and costly. In any case, supporters of Judicial review contend that it is vital to ensure the elemental rights of
citizens and ensure that the government capacities inside the limits set by the Structure. Eventually, the adjust between these two viewpoints will depend on how well the Judiciary can strike a adjust between ensuring the Structure and regarding the equitable handle.
Landmark Cases
of Judicial Review in India
Indian Judicial history is packed with point of interest cases where Judicial review has played a significant part. From the statement of the Parliament's
alteration control in 'Shankari Prasad
v. Union of India' to the seminal 'Kesavananda Bharati v. State of Kerala'
case, which set up the 'Basic Structure' teaching, these cases represent Judicial review's
transformative affect. Over a long time, there have been a few points of interest cases where the
Indian Judicial has worked out its control of Judicial review to strike down laws
that were in infringement of the Structure. A few of these cases are: Golaknath
v. State of Punjab (1967): In this case,
the Incomparable
Court held that the Parliament did not have the control to revise the Basic Rights revered within the Structure. This choice was afterward upset by the 24th Correction to the Structure, which permitted the Parliament to revise any portion of the Structure, counting the Elemental Rights. Kesavananda
Bharati v. State of Kerala (1973): This
case is considered to be one of the foremost critical cases within the history of legal review in India. In this case, the Preeminent Court held that there were confinements on the revising control of the Parliament which the
fundamental structure of the Structure might not be changed. Maneka Gandhi v. Union of India (1978): In this case, the Incomparable Court held that the correct to travel overseas was a portion of the correct to individual freedom beneath Article 21 of the Structure. This choice extended the scope of the correct to individual freedom and ensured it from self-assertive confinements by the government. Vishaka v. State of Rajasthan (1997): In this case, the Incomparable Court recognized sexual badgering at the working environment as an infringement of the elemental rights of ladies. The court laid down rules for managers to anticipate and change such badgering at the work environment.
Distinguishing between Judicial Review and Appeal
The qualification between Judicial review and request procedures relates to the control of the court; in offer procedures the court might
substitute its choice for the choice of the court at to begin with occasion. In Judicial review procedures the courts fundamental control is to suppress the challenged choice and to discover it invalid; for the
merits of the case to be decided the case must return to the initial decision-making specialist. The moment primary refinement relates to the
subject matter of the court's jurisdiction. The offer court must choose whether a choice was right or off-base based on the contemplations of law. The Judicial review court has the capacity to choose on the off chance that the address was legitimate, based upon the fitting powers that the open body have been blessed with. There are numerous statutes, which give for offers from choices by open bodies; commonly such offers are constrained to focuses of law, but in certain occurrences they may expand assist to the truths of the case. Judicial review cases are continuously kept to questions of law. The Lodging
Act 1996 awards
a right of request
and so the claimant is anticipated to look for a cure beneath a request beneath this Act instead of beneath Judicial review. Earlier to 1996, a huge number of lodging cases were being subjected to Judicial review which was a cause for
concern by government. As a result, requests which related to vagrancy beneath the 1996 Act are presently managed with offer by means of the district court. Legal review procedures on the issue of housing are presently restricted to extraordinary cases.
Judicial Review in Practice
Claimants
turn to judicial review when they have exhausted other avenues of redress, such
as the First-tier Tribunal. If the claimant succeeds the matter will normally
be remitted to the original decision maker for a new decision in the light of
the court's judgment. The decision maker might reach the same decision as was
made previously, while this time acting lawfully.
When
judicial review proceedings are used to protect 'Convention rights' under the
HRA, the court might not be able to reach the same decision after
reconsideration.
i. The
Judicial Review Procedure
There
are a range of tribunals and courts that exercise the jurisdiction to review
the legality of public actions. The claim for judicial review procedure in
England and Wales is set out in part 54 of the Civil Procedure Rules,
(secondary legislation established under the Civil Procedure Act 1997). The judicial review procedure consists of two
stages:
Claimants
must obtain the permission of a judge to make a claim;
If
permission is granted the will proceed to be dealt with by a court.
In order
to obtain permission, the claimant must show that the claim was made within the
time limits, the claimant has standing, and other potential avenues of redress
have been exhausted. The application must be made promptly and claims made
within 3 months have been held not to have been made quickly enough and
refused. Lord Diplock explained the reasons for strict time limits judicial
review cases in O'Reilly v Mackman [1983] 2 AC 237, when he stated that it was
in the public interest in good administration that public authorities and third
parties be not held in suspense as to the legal validity of a public decision.
The court does have the discretion to extend the time limit, but this
discretion is only used in rare cases.
Part 54
Civil Procedure Rules states that a claim for a judicial review means a claim
to review the lawfulness of an enactment, or decisions or action in relation to
the exercise of a public function. It is now possible to use judicial review
proceedings to consider whether or not primary legislation in compatible with
EU law, or incompatible with Convention rights under s.4 HRA.
Part
54.1 Civil Procedure Rules states that judicial review claims are concerned
with the exercise of public functions, they are not limited to government bodies,
but can include charities, and self-regulatory organisations that can be
subject to judicial review claims through there exercise of public functions. A
wide range of bodies, including some that are within the private sector, now
exercise public functions.
Case in
Focus: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v
Wallbank and anor [2003] UKHL 37
[Lord
Nichols of Birkenhead] In a modern developed state government function... the
manner in which wide-ranging government functions are discharged varies
considerably. In the interests of efficiency and economy...functions of a
governmental nature are frequently discharged by non-governmental bodies.
Sometimes this will be a consequence of privatisation... One obvious example is
the running of prisons by commercial organisations...
The main
means by which a judge determines whether a body is subject to judicial review
is to look at the source of the body's powers. Acts of bodies whose powers
derive from statute or the prerogative will usually be reviewable. Decisions
taken under contractual obligations are not considered reviewable.
Case in
Focus: R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815,
824-36
Although
it performed important functions, the Panel on Takeovers and Mergers appeared
to have no formal legal powers at all. It was located in the Stock Exchange
building in the City of London, oversaw, and regulated an important part of the
UK financial market. The Panel was an unincorporated association without legal
personality... it had not statutory, prerogative or common law powers.
The
Court of Appeal however, found that in determining whether a body should be
subject to judicial review, the judge could also consider whether the body
performs functions that have a 'public element'. The Court of Appeal discerned
the public element from the nature and impact of the Panel's functions.
Exam
Consideration: when answering a problem question you might be required to
decide as to whether the defendant is a public body, whether its decisions are
matters of public law, and whether the claimant has ground to bring a case of
judicial review. In answering this question you should note that a court would
look at the source of the defendants powers, applying Datafin and analyse the
nature of the defendant's functions.
ii. Does
the Claimant Have Standing?
Claimants
must show that they have sufficient interest in a matter to bring judicial
review proceedings in respect of it. Previously judges have taken a 'closed'
approach to the persons who had sufficient interest, more latterly a more open
approach has been adopted which allows claimants into court if they have an
arguable case on the law. An important early decision representing this
modified approach is the IRC case.
The
House of Lords considered the substance of the claim and found that the
Federation did not have sufficient interest in the matter since one tax payer
did not have sufficient interest in the tax affairs of another taxpayer, to
complain that they had been under-assessed. Lord Diplock's view differed from
the majority in finding that the Federations claim failed, not due to lack of
standing, but due to the fact that it had failed to establish that the Inland
Revenue had acted unlawfully.
Lord
Diplock's approach has now become the dominant approach, as seen in the World
Development Movement case.
Case in
Focus: R v Secretary of State for Foreign Affairs, ex parte World Development
Movement Ltd [1995] 1 All ER 611
WDM is a
pressure group which campaigns to improve the quality of aid that is delivered
to developing countries. It challenged the decision of the Home Secretary to
provide funding for the Pergau Dam project in Malaysia. WDM claimed to
represent the broader public interest as well as those of people in developing
countries as opposed to a particular group of people in the UK. WDM was held to
have sufficient interest in the matter to have standing to bring a judicial
review claim. WDM was found to have an interest in the matter due to the
importance of the matter raised, the absence of any other challenger, the
nature of the breach, and WDM's prominent role in giving guidance and
assistance with respect to giving aid.
Even in
WDM the courts were very careful to ensure that the claimants had an arguable
case in law. The WDM argued that the Home Secretary had misused powers
conferred by legislation.
iii.
Permissions stage
The
permissions stage is governed by part 54(10) Civil Procedure Rules, the court
decides whether it will allow the case to proceed to a judicial review hearing.
This is to prevent 'trivial complaints and busybodies' from wasting the court's
time [Lord Diplock, IRC v National Federation of Self-employed and Small
Businesses Ltd]. Claims for permission
are dealt with by a judge on the papers; if permission is refused the claimant
might request an oral hearing. There is a possibility of appeal to the Court of
Appeal under CPR 54(12).
Permission
often relies upon whether there is an 'arguable case'. A study of the
permissions stage [V. Bondy and M. Sunkin, 'Accessing judicial review' [2008]
Public Law 647] found that in 1981 71 per cent of claimants were given
permission to proceed, whereas in 2006 this figure had fallen to only 22 per
cent. The research concluded that this was partially due to procedural reforms
introduced in 2000, which led to higher levels of settlement out to court.
iv. The
Hearing
A single
judge commonly conducts the hearing, with witnesses and cross-examination being
rare. The case is nearly always focused on issues of law rather than fact.
Remedies are discretionary.
v.
Judicial Review and Exclusivity
The
process of discovery was simplified during the changes made to the judicial
review process following the Law Commission's report (1976).
Case in
Focus: O'Reilly v Mackman [1983] 2 AC 237
The
House of Lords confirmed that judicial review should be an exclusive procedure.
In O'Reilly the claimants were prisoners who had been disciplined by the prison
Board of Governors for various offences.
They alleged breaches of prison rules and the rules of natural justice
and asked the court for a declaration using private proceedings rather than
judicial review. The House of Lords agreed that the private law claim was an
abuse of procedure and should be struck out. The claims were held to be a
blatant attempt to avoid the protections that Order 53 provides. There are
safeguards built into the judicial review process which protect the public
authority from unmeritorious claims, to include the permission requirement and
the strict time limits.
vi.
Public Law and Private Law Proceedings
An
action against a public authority might be a private law action, such as
damages for negligence. If this is the case this is not a judicial review
proceeding. In Davy v Spelthorne Borough Council [1984] AC 262 the claimant
argued that the defendants had negligently failed to inform him of his rights
and so failed to appeal an enforcement order in relation to his property. The
House of Lords held that this was a valid claim under private law, since he was
not arguing that the validity of the enforcement order, but was claiming that
the council had acted negligently under private law. However, in Cocks v Thanet
[1983] 2 AC 286 the subject matter of the claim was whether the claimant was
made unintentionally homeless under the Housing (Homeless Persons) Act 1977, he
applied for an injunction and damages. The court held that he must apply for
judicial review as opposed to these civil law remedies since the court must
determine the legality of the authority's decision, which made him
homeless. The decision of a body can be
challenged in civil and criminal proceedings.
The
enactment of the Civil Procedure Rules has led to courts taking a more flexible
and pragmatic approach to whether a claimant should proceed under private law
or judicial review. In Clark v University of Lincolnshire and Humberside [2000]
1 WLR, a student challenged the university appeal process and regulations over
a case of alleged plagiarism. She sued the University for breach of contract,
but the University argued that it should have been a judicial review hearing
which was debarred for being outside the three-month time limit. The Court of
Appeal held that since the CPR the court had greater powers to supervise a
private law case against a public authority and if such cases were
unmeritorious the court could strike the case out; the claimant was allowed to
proceed with her public law claim. It was held that the exclusivity principle
should not now be applied in an overtly rigorous manner.
vii. Exclusion
or restriction of access to judicial review
The
government have sometimes inserted ouster clauses into statues providing that a
body such as a tribunal should appeal or review a certain decision.
Courts
have taken a similar approach to ouster clauses, for example a clause that
states 'a decision shall not be challenged in a court of law'. These clauses
seek to prohibit legal action relating to decisions of a body.
Case in
Focus: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
The House
of Lords held that ouster clauses should be strictly construed; the court
should be able to judicially review their decisions so that they are not
exceeding their powers and acting ultra vires. Errors of law in this case, took
the tribunal or public authority beyond the scope of its powers and thus
subject to review with or without an ouster clause.
Time
limited ouster clauses impose a time limit on the claimant; these are
permissible. Courts have held that when the time limit has expired the clauses
prevent a claim for review. In R v Secretary of State for the Environment, ex p
Ostler [1977] QB 122 Schedule 2 to the Highways Act [1977] QB 122, stated that
any challenge to an order had to be made within 6 weeks of the date that the
order was published; the claimant made a challenge outside of this time
limit. The court upheld this time limit,
as in their view the delay and cost would be contrary to the public interest.
Parliament
can also restrict the ability of judicial review by introducing alterative statutory
appeal processes to a court to tribunal. In R (A) Director of Establishments of
the Security Service [2009] UKSC 12, the claimant wished to bring a claim for
judicial review in the Administrative Court, under section 65(2)(a) Regulation
of Investigatory Powers Act 2000 stated that any claim under the HRA against
the security services should be brought before the Investigatory Powers
Tribunal. The Supreme Court distinguished this case from Anisminic, in that
Parliament had not ousted judicial security of the security services but simply
afforded the power of scrutiny to the IPT, who had more expertise in dealing
with sensitive information.
Conclusion:
In
conclusion, Judicial review is a basic include of the Indian Structure that guarantees that the laws
passed by the assembly and the activities of the official are in line with
the Structure. The courts have
the control to strike down any
law that's
in
infringement of the Structure, and they can moreover issue writs to ensure the basic rights of the
citizens. Whereas the scope of Judicial review is very wide, there are certain
limitations to this control, which are essential to preserve a adjust between the three
organs of the state – the governing body, the official, and the Judiciary. Judicial review may be a pivotal viewpoint of the Indian Structure that permits the legal to act as a check
on the administrative and executive
branches of the government. It guarantees that the government capacities inside the limits set by
the Structure which the rights of the
citizens are secured. Whereas the scope of Judicial review is very wide, there are certain restrictions to this control, which are essential to preserve a adjust between the three
organs of the state – the governing body, the official, and the Judiciary. Judicial review has played a critical part in forming the Indian legitimate framework and ensuring the rights of its
citizens.
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Shankari Prasad v.union of India
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Article Information
JUDICIAL REVIEW IN INDIA: IMPORTANCE, LANDMARK CASES AND CRITICISM BY: - ADV. HARSHADA KARKE
Authors: ADV. HARSHADA KARKE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/27
- Issue 7
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International Journal for Legal Research and Analysis
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