6 Judicial Review

Mr Niraj Kumar

1. INTRODUCTION

The module on judicial review has been discussed under three broad sections. The first section discusses some of the general issues of the concept of judicial review. The second section traces the journey of judicial review in three major countries viz: England, United States and India. Indian understanding has been given more detailed treatment. In this section the Indian concept of basic structure doctrine has been specially discussed. The next section tries to identify limitations on judicial review.

Learning outcomes:

Knowledge of Concept of Judicial review.

Identification of various factors in judicial review.

Understanding the approach of judiciary in area of judicial review. Appreciation of recent issues in judicial review.

2. THE CONCEPT OF JUDICIAL REVIEW

Traditional view envisages that every Democratic State consists of three limbs viz; the legislature, the executive and the judiciary. The first is entrusted with task of enacting law, the second is entrusted with task of implementation of law in action and the third interprets and applies the law according in the specific cases brought before them, primarily, for resolution of disputes. Starting from Aristotle till modern enunciation by Lord Acton and Montesquieu it has been widely accepted that for guaranteeing fundamental liberties, the foundational pillar of democracy, these three powers must not only kept separate from each other but there must be a balance amongst them.

In the quest of attainment of such balance every legal system has evolved a modality to suit the needs and geniuses of the society. In countries like India and United States it has been done through the Document of Constitution. Executive is generally made answerable to legislature by mode of reporting and through control of their finances. Judiciary has been conferred with the power to check that action of Executive and Legislature is in consonance with Constitutional norms. Therefore, for a successful and functioning democracy the existence of a free judiciary is a must. Without an independent judiciary, the system may be practically equivalent to dictatorship. Judiciary is the guardian of the constitution which is rooted in the Rule of law. The judiciary is the interpreter of the constitution. Parliament and the state legislature are creatures of the constitution and the judiciary have the power and duty to correct their errors, if at times they cross the limits of their powers as defined in the constitution. The tool through which judiciary performs these functions is generally known as power of ‘judicial review’.

In simple words, ‘judicial review’ means courts’ power to review the actions of other branches of government, especially the court’s power to invalidate legislative and executive actions as being unconstitutional.1 Judicial review is a great weapon in the hands of judges. The power is generally conferred on superior courts. Judicial review can be of all three kinds of actions recognized by Constitution i.e. Judicial, Legislative and Executive. The matters reviewed may be decisions of lower courts, acts and decisions of executive authorities or enactment of legislatures. The first being nothing more than a supervisory power of superior over an inferior of the same department, the term ‘judicial review’ is generally understood to apply only to judicial control of administrative or legislative action.

The Concept may be represented with the following diagram:

3. JUDICIAL REVIEW AS UNDERSTOOD IN ENGLAND, UNITED STATES AND INDIA

3.1 Position in England

In England, initially, the major portion of law consisted of common law, which was mainly judges’ made law. The judges asserted that the State actions including the exercise of the Royal Prerogative2 must conform to the common law. The supremacy of common law was sufficient to ensure the rule of law as against administrative action. It was for the judges to say what the common law was. But when the law started becoming increasingly Statute made and Parliament asserted legislative sovereignty, the question which became important was whether there could be any control against legislative action. The question was answered by Chief Justice of England, Sir Edward Coke in Bonham’s Case in 1610. In this case, it was found that power of prosecution and to judge were conferred upon same authority, by an act of Parliament, which was against common law and reason. Hence the act was held void. In this case, Justice Coke asserted the power of judicial review even against legislation. The doctrine of judicial review of legislation, however, did not take root in England mainly because of absolute sovereignty of Parliament.

The present position in England is that since there is no written constitution and Parliament is supreme, there is no judicial review of legislation enacted by Parliament. An English court cannot declare an act of Parliament ultra vires. This theoretical position remains unchanged even after the enactment of the European Communities Act 1972, which makes the community law directly enforceable in United Kingdom, and the Human Rights Act 1998, which requires the English courts to point out that an act of Parliament is not compatible with the European Charter on Human Rights. The courts, however, cannot declare an act of Parliament unconstitutional. 4 So far as, the judicial review of administrative actions is concerned, English Court have always proceeded on the basis that Parliament has conferred power on administrative authorities to be exercised lawfully, reasonably and in accordance with well-established principles of law. Wherever it appeared to the court that there was an abuse of power by an administrative authority, it has intervened by granting appropriate relief to the aggrieved party.

3.2 Position in United States

The other side of Atlantic presents a very different picture of judicial review, where it is considered as one of the most significant feature of Constitutional law. On achieving independence, the people of United States gave to themselves a written constitution. Although the Constitution nowhere explicitly states that the Supreme Court of United States has the power to invalidate acts of Congress if they are found in contravention of the provisions of the Constitution but such power is generally implied in a legal system governed by a written constitution. The ‘Supremacy Clause’ of US Constitution; namely article VI, Clause 2 makes supremacy of Constitution explicit by providing as follows:

This Constitution and the Laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land.

The Supreme Court of United States draws its authority of judicial review from this Supremacy Clause. This authority was firmly asserted and established by US Supreme Court in historic case of Marbury v Madison. 5 The Supreme Court speaking through Marshall CJ observed that:

The Constitution is Supreme and it is duty of the court to declare what the law is. This is of very essence of judicial duty. Why otherwise does it [Constitution] direct the Judge to take an oath to support it? …. Thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitution that a law repugnant to the Constitution is void; and that courts, as well as departments are bound by that instrument.

This pronouncement is considered as locus classicus in the annals of judicial review, not only in United States but across the world. After this judgment, the Supreme Court of United States has never looked back and has exercised this weapon to uphold the rule of law and to protect the rights of people in numerous cases. For example, in Brown v. Board of Education,6 it was held that segregation on the ground of race was unconstitutional and void.

But the tool of judicial review has been double edged sword and many times the judiciary is criticised for its conservative approach. For example, in Dred Scott v Stanford,7 the US Supreme Court upheld slavery as being protected by the right to property.

3.3 Position in India

After achieving independence, India also adopted a written Constitution which contains several rights for individuals and different groups and the Constitution also adopted the principle of the Government being responsible to the Parliament as found in the English system. With respect to the inherent value of a written constitution it also incorporates ‘judicial review’, it would be appropriate to refer to an observation made by Justice Aharon Barak:

To maintain real democracy and to ensure a delicate balance between its elements -a formal constitution is preferable. To operate effectively, a constitution should enjoy normative supremacy, should not be as easily amendable as a normal statute, and should give judges the power to review the constitutionality of legislation. Without a formal constitution, there is no legal limitation on legislative supremacy, and the supremacy of human rights can exist only by the grace of the majority’s self-restraint. A constitution, however, imposes legal limitations on the legislature and guarantees that human rights are protected not only by the self-restraint of the majority, but also by constitutional control over the majority. Hence, the need for a formal constitution.

Thus, for advancement of rule of law and protection of fundamental rights of individuals and various groups, which were described by Dr Ambedkar as ‘soul of the Constitution’, explicit provisions for judicial review was felt necessary. Therefore, article 13 is contemplated whose clause [1] states that all laws in force of in the territory of India immediately before the commencement of the Constitution, in so far as they inconsistent with the provisions containing the fundamental rights, shall, to the extent of such inconsistency, be void. Clause [2] of that article further states that the State shall not make any law that takes away or abridges any of the fundamental rights and any law made in contravention of the above mandate shall, to the extent of the contravention, be void. The Constitution also divides the legislative powers between Centre and states and it is forbidden for both to enter into the areas assigned to other.

Article 246 of the Constitution read with 7th schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various state legislatures. If any dispute arises, then court uses its power of judicial review to keep them in their limits.

While judicial review over administrative action has evolved on the lines of common law doctrines such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions. In most cases, the power of judicial review is exercised to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.

Hence the scope of judicial review before Indian courts has evolved in three dimensions – firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental and other rights of citizens and thirdly to rule on questions of legislative competence of and between the centre and the states.

The power of the Supreme Court of India to enforce the fundamental rights is derived from article 32 of the Constitution. It gives citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights. This entitlement to constitutional remedies is itself a fundamental right and can be enforced through various writs as evolved in common law – such as habeas corpus (to direct the release of a person detained unlawfully), mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself)9. Besides the Supreme Court, the High Courts located in the various States are also designated as constitutional courts and article 226 permits citizens to seek similar writs before the High Courts.

The Supreme Court of India in its first significant pronouncement in the area of judicial review in AK Gopalan v State of Madras10 observed that:

There is considerable authority for the statement that the courts are not at liberty to declare an Act void in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general power conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument …[I]t is only in express constitutional provisions, limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of the Courts of justice to declare void any legislative enactment.

The Supreme Court ruled in above case that ‘preventive detention’ by state agencies was permissible as long as it was provided for under a governmental measure (e.g. legislation or an ordinance) and the Court could not inquire into the fairness of such a measure. It was held that the words ‘procedure established by law’ were different from the ‘substantive due process of law’ guarantee provided under the 14th amendment to the US Constitution. It was also reasoned that the framers of the Indian Constitution consciously preferred the former expression over the latter. Thus A K Gopalan while recognizing power of judicial review under Indian Constitution but read it in a very narrow manner.

This narrow construction of article 21 prevailed for several years until it was changed in Maneka Gandhi’s case. 11 In that decision, it was held that governmental restraints on ‘personal liberty’ should be collectively tested against the guarantees of fairness, non-arbitrariness and reasonableness that were prescribed under articles 14, 19 and 21 of the Constitution. The Court developed a theory of ‘inter-relationship of rights’ to hold that governmental action which curtailed either of these rights should meet the designated threshold for restraints on all of them. In this manner, the Courts incorporated the guarantee of ‘substantive due processes’ into the language of article 21.

This was followed by a series of decisions, where the conceptions of ‘life’ and ‘personal liberty’ were interpreted liberally to include rights which had not been expressly enumerated in Part III.12 These liberal interpretations of Constitutional provisions by the Supreme Court resulted in expanding the ambit of judicial review. For example, the Supreme Court said that any legislation is amenable to judicial review, be it momentous amendments13 to the Constitution or making of schemes and bye-laws of municipal bodies which affect the life of a citizen,14 judicial review extends to every governmental or executive action – from high policy matters like the President’s power to issue a proclamation on failure of constitutional machinery in the States like in SR Bommai case, to the highly discretionary exercise of the prerogative of pardon like in Kehar Singh case or the right to go abroad as in Satwant Singh case. Judicial review as things stands today knows no bounds except the restraint of the judges themselves regarding justifiability of an issue in a particular case.

In the celebrated case of Keshavanda Bharathi v State of Kerala,15 the Supreme Court of India the propounded the basic structure doctrine in which it held that the Parliament has power to amend the Constitution, but it should not change the basic structure of the Constitution. However, the Court did not explain the term ‘basic structure’ in clear words but almost all judges agreed that Judicial review is one of the basic features of the Constitution.

4.DEVELOPMENT OF BASIC STRUCTURE DOCTRINE

Kesavananda changed the whole understanding of power of judicial review drastically. Sikri, CJ, observed in above case that these basic features are easily discernible not only from the Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of dignity and freedom of the individual which could not by any form of amendment be destroyed. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. After Kesavananda case the concept of basic structure was not only confirmed but also expanded by subsequent benches of the Supreme Court.

The Constitutional bench in Indira Nehru Gandhi v Raj Narain,16 was the first important case after Kesavananda to affirm basic structure doctrine. It held that Judicial Review is one of the basic structure of the constitution. In SP Sampath Kumar v Union of India,17 Bhagwati J relying on Minerva Mills Ltd.,18 declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. In Sampath Kumar the Court further declared that if a law made under article 323-A(1) were to exclude the jurisdiction of the High Court under articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

In Kihoto Hollohan v Zachillhu,19 another Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.

Subsequently, in L Chandra Kumar v Union of India20 a larger Bench of seven Judges unequivocally declared:

That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure.

If we take a look at the journey starting from AK Gopalan and culminating into Maneka Gandhi certain observations becomes pertinent. Firstly, the Courts were earlier quite reluctant to go for deeper scrutiny of legislative actions in comparison to administrative one. The whole ambit of judicial review was expanded by liberal interpretation of article 21 and its combined reading with articles 19 and 14. Secondly, it must also be understood that even after such an expansive interpretation of Constitutional provisions the level of scrutiny of legislative and administrative actions will not be same. The Courts are supposed to give greater respect to legislative actions. Thirdly, after pronouncement of basic structure doctrine in Kesavananda case the courts have expanded the scope of scrutiny to constitutional amendments also.

A nascent development in jurisprudence of judicial review has been possibility of importing strict scrutiny doctrine to Indian situation.21 There remains a great deal of controversy with respect to the issue. The question of final adoption and suitability of strict scrutiny doctrine in Indian context is still res integra. We are required to wait with caution before finally committing either way.

The power of review is exercised in the following manner:

LIMITATIONS ON JUDICIAL REVIEW

It is true that the judiciary has power to decide the limits of jurisdiction of other organs of the government, but this power is not absolute. There are limitations on power of judicial, which are briefly discussed in this section.

Limitations on judicial review are, generally, either express or implied. Express limitation means a limitation which is expressly provided under the law. For example, the First Amendment introduced article 31- A and article 31- B, and inserted the Ninth Schedule into the Constitution. Article 31-A protects certain land laws from challenges on the ground of violation of Fundamental Rights. This article debars judicial review of law relating to agrarian reform. Article 31-B provides that without prejudice to the generality of the provision of article 31-A, any law placed in the Ninth Schedule would be immune from any attack based on the violation of Fundamental Rights. In other words, the court cannot review any law placed under Ninth Schedule on the ground of violation of Fundamental Rights. But this absolute immunity was challenged in IR Coelho v State of Tamil Nadu.22 The Court observed that, the power to grant absolute immunity at will is not compatible with basic structure doctrine. All insertions in the Ninth Schedule after 24- 4- 1973 [the date of the judgement in Kesavanand Bharti] may be tested on the anvil of the basic structure.

Implied limitation refers to those situations where, though prohibition is not mentioned in clear words under the law, but the court refuses to entertain the issue as matter of prudence. Policy decisions of the government and cases involving political question, are two main areas where the court, generally decline to review. Policy decisions are the area assigned to the executive and it is solemn duty of the judiciary while exercising the power of judicial review, not to enter the area assigned to other, whether legislature or executive. Since beginning, the judiciary has declined to interfere with the policy of the executive. RK Garg v Union of India,23;GB Mahajan v Jalgoan Municipal Council24 and most importantly Balco Employee’s Union v Union of India,25 are some example where the court declined to look into the policy decision. In Balco’s case the court said that ‘wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision of the Constitution’. The reason behind this negative approach of the court is that the policy matter involves a close examination of the bewildering complex nature of knowledge and experiment, which can be evaluated by the experts and implemented by the executive. The court lacks both expertise and institutional capacity to deal effectively with exercise of policy formulation and its implementation. However, in 2G case,26 the Supreme Court said that ‘we are conscious of the fact the court should not interfere with the fiscal policies of the state. However, when it is clearly demonstrated that the policy framed by the state and its implementation is contrary to public interest or is violate of the constitutional principles, it is duty of the court to exercise its jurisdiction in larger public interests…’.The court, of course, can check the legality of a policy, but goodness or badness of a policy should not be the area of judicial review. Therefore, this judgement was widely criticised and the Supreme Court reiterated traditional understanding of the restraint vis-a-vis policy matters when the President sought advisory of the Supreme Court in this connection.

Further, ‘political question is a doctrine which prevents court of law from determining issues which are essentially political; within the purview of the executive branch of the government. The doctrine originated in USA in Marbury’ case when Chief Justice Marshall said that some of the Secretary’s actions such as advising the President on matters of policy are unamenable to be reviewed by a Court of law. In Baker v Carr,28 this doctrine was given firm foundation when the Court held that the conduct of foreign relation is the sole responsibility of the executive branch and the court should not hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government.

Since, Indian Constitution recognizes doctrine of separation of power; it is expected from the Supreme Court to follow the doctrine of political question. But of late the expanded form of judicial review i.e., judicial activism, has eroded this limitation.

SUMMARY

The concept of judicial review ensures check and balances in State. The concept, although present in all democratic society, is more pronounced in societies having written constitution. In most of the written constitutions it runs as central theme controlling State’s power. Over a period of time it has developed as perhaps most effective tool for protection of liberties of citizens against the might of State. The concept has also seen unique innovation in Indian Scenario, with the development of ‘basic structure doctrine’.

The concept has also seen its share of controversies, wherein a case against judicial overreach is made. It must be appreciated that this concept of judicial review also has certain limitations within which it must operate. It can be done through exercise of judicial restraint only because any external limitation can be disastrous. We must be circumspect in providing for limitations on judicial review lest it becomes a classic case of throwing baby with bathwater.

Web Resources:

1. Judicial review: http://www.britannica.com/EBchecked/topic/307542/judicial-review

2. Judicial review: <https://www.law.cornell.edu/wex/judicial_review>

3. K.G.Balakrishanan, ‘Judicial Activism under the Indian Constitution’ <

<www.supremecourtofindia.nic.in>

4. Katju J., ‘Separation of Powers, Judicial review and Judicial Activism’<justicekatju.blogspot.in>

5. < www.prsindia.org >

6. < http://www.sal.org.sg>

7. < http://digitalcommons.law.yale.edu>

8. < www.jstor.org >