4 Judicial Review

Dr. Lakhwinder Singh

1. Introduction

The term „judicial review,‟ in general, means the power of a court to review and potentially strike down an act of legislature as unconstitutional and invalid.1 The courts‟ power of judicial review has been culled out from the principle of checks and balances. The system of checks and balances between the legislature and the executive on the one hand and the judiciary on the other hand provides the means by which mistakes committed by one are corrected by the other and vice versa.2 For every civilised and democratic society, it becomes necessary that all the three organs of the State are working in a complete harmony.3 Each organ is bound to act within its own domain. And all of their actions have to be tested on the Constitutional and democratic principles.

In its wider connotation, judicial review means not merely a power of the courts to set aside legislative actions but also covers the power of judicial review of executive or administrative actions.5 Furthermore, Superior courts have power to review the acts, decisions and omissions of public authorities in order to determine whether they have exceeded or abused their powers.

Judicial review is different from right of appeal. An appeal is a statutory right. An appellate body receives power from a statute to decide the whole case again. An appellate body can change the lower court‟s verdict and give its own decision over the issue. Contrary to this, in case of judicial review, the courts have limited powers. The courts do not act as an appellate authority while doing judicial review. In case of judicial review, the courts inquire how the decision was reached. The superior court scrutinises the whole decision-making process and checks whether the decision was made lawfully or not. If the superior court finds the decision unlawful, it cannot make a fresh decision but sends the matter back to the decision-making authority.

In order to understand the concept of judicial review, the present module has discussed the position of judicial review in the United States and in the United Kingdom. While discussing its Constitutional position in India, the module has also analysed its power of scrutiny in the matters relating to State‟s administrative and legislative actions.

2. Learning Outcome

2.1 Learners would be able to understand the concept of „Judicial Review‟.

2.2 Learners would be able to compare position of judicial review in India with that of the United States and the United Kingdom

2.3 Learners would further enhance their knowledge on the judicial review of State‟s legislative and administrative actions.

3. Judicial Review in United States

The concept of judicial review can be traced back to ancient times. The Athenian judges were bound by those laws only insofar as they were consistent with the higher law. The basis of the higher law was the unchanging precepts of the universal, natural, or divine law.8 Greco-Roman conceptions of higher law also became the part of thoughts prevailing during the Middle Ages.9 According to Thomas Aquinas, natural law was a supreme law having divine origins to which everybody was subjected. The sovereign‟s action against natural law was declared void. The judge was bound to declare administrative actions void if they were contrary to natural law. Even the individual subjects were not under any duty to obey those commandments which were against the natural law.

It was also seen that judges of the French Parliaments during the Ancient Regime also had a power to quash laws and executive orders that were not in consistent with the fundamental laws. In England, Sir Edward Coke‟s opinions declared the supremacy of the Common Law and the Magna Charta over parliamentary statutes.

The doctrine of judicial review, in its modern sense, has been originated in the United States of America. Moreover, practices of the doctrine in United States also influenced many countries in the whole world. In the case of Marbury v Madison,12 Chief Justice Marshall emphasized on the judicial duty to pursue the Constitution in case where a statute is in conflict with the federal Constitution. Marshall further explained that the phraseology of the United States Constitution confirms and strengthens the principle that a law repugnant to the Constitution is void. All courts and other departments are bound to act under the Constitution.13

However, Judicial review had been used both by the state and federal court judges even before Marbury v Madison, by declaring many laws unconstitutional which were not in consistent to the state constitution or federal constitution. Marshall‟s opinion was important not because it was first but because it was the first statement of the doctrine of judicial review given by the nation‟s Supreme Court.

Judicial review in the United States has become a very significant weapon to scrutinise all kinds of state actions- legislative, executive and administrative. Because of such power, the US Supreme Court has made significant pronouncements and invalidated the state actions on the ground of due process clause. While over-ruling its earlier judgment of Plessy v Ferguson,15 the United States Supreme Court in the case of Brown v Board of Education,16 invalidated segregated laws dividing whites and blacks, and held that separate education facilities are discriminatory in nature. The US Supreme Court‟s creativity is also being reflected when it recognises free legal aid17 and other fundamental rights to the accused person.

4. Judicial Review in United Kingdom

In the United Kingdom, the scope of judicial review is narrower because Parliament is supreme. Parliamentary supremacy and the rule of law empower the courts to compel the government to act within their limits framed by legislation. But courts are not empowered to override legislation. Courts are bound to respect the doctrine of ministerial responsibility to Parliament. Courts cannot substitute their views on the merits of government action for those of the government. Courts cannot interfere in the high-level political activity.19 However, the courts examine the actions of public bodies and protect the will of Parliament. The courts check whether the bodies are functioning within the powers they have been given. If bodies act outside those powers, the courts consider it void as it is against the intention of the Parliament. For this, the courts have given wider meaning to the term „public authority‟, and focus on the nature of its function for reviewing.

In Council of Civil Service Unions v Minister for the Civil Service,21 Lord Diplock classified the grounds of judicial review under the three heads of „illegality, irrationality and procedural impropriety. He also recognised that further concepts such as „proportionality‟ might evolve.

5. Judicial Review in India

In the early Vedic times, there is no specific evidence of any settled judicial procedure. However, in general, Kings had their own judges to administer justice. The current administration of justice and laws in India are the outcome of initiatives taken during the British rule in India. The four law commissions and other committees were appointed during the years 1834 to 1947 to give proper structure to then justice system in India.

In India, the judiciary is the guardian of the Indian Constitution, the democratic atmosphere and individuals‟ fundamental rights. An independent and impartial judiciary fights against legislative and executive arbitrariness. Indian judiciary is empowered with power of judicial review. The courts have power to review all legislative enactments,executive and administrative actions. 23 The Indian Constitution explicitly provides for judicial review through articles 13, 32, 131-136, 143, 226 and 246. In contrast to the judicial review of legislative action, the courts in India use the power of Judicial review more against the excesses of administrative action.

Dr. B. R. Ambedkar defended the provisions of judicial review and said that it is necessary for our legal system.24 According to Dr. Ambedkar, the provisions for judicial review, in particular the writ jurisdiction would provide quick relief to the individuals against the abridgment of fundamental rights.

In A.K.Gopalan v State of Madras26 the court held that the Constitution is supreme and every statute has to be in conformity with the constitutional requirements. Moreover, it is the binding duty of the courts to decide whether any law or statute is constitutional or not.

The Supreme Court in State of Madras v Row27 stated that the Indian Constitution provides express provisions for judicial review of legislation. The Court further declared that it is the most important duty of the court to determine the constitutionality of an impugned statute. Justifying judicial review, in S.S. Bola v B. D. Sardana28 Sharma, Justice Ramaswami held that the founding fathers wisely added the provision of judicial review for maintaining federalism, protecting fundamental rights, and strengthening the concept of liberty and equality in India. In Subhash Sharma v Union of India,29 the court said that judicial review is a basic feature of the Indian Constitution. The court held that the Chief justice of India should play an active and major role in the process of appointment of judges of High court and Supreme Court. Justice Bhagwati in Sampath Kumar v Union of India30 held that Judicial Review cannot be abrogated by the Parliament since it is essential feature of the Indian Constitution. Without the provision of judicial review, the enforcement of fundamental rights would be meaningless. In Minerva Mills case,31 Chandrachud, C.J speaking on behalf of majority stated that fundamental rights would become a mere a piece of decoration. A controlled constitution will be under no control. In the same case, Bhagwati, J observed that without power of judicial review there will be no Government of laws and the rule of law would become an illusion. The Supreme Court in L. Chandra Kumar v Union of India32 held that High Court‟s jurisdictional power under Art. 226/227, and Supreme Court‟s power under Art. 32 are basic structure of the Indian Constitution. Therefore, the Supreme Court declared clause 2(d) of Art. 323A and clause 3(d) of Art. 323B unconstitutional to the extent they excluded the jurisdiction of High Court and Supreme Court under Art. 226, 227, and 32 of the Indian Constitution.

Furthermore, the Supreme Court in State of West Bengal v Committee for Protection of Democratic Rights33 again reiterated that the power of judicial review of the High Courts and Supreme Court under Article 226 and Article 32 respectively is the basic structure of the Indian Constitution and cannot be abolished by an act of Parliament. The court again viewed that judicial review gives the practical shape to the objectives of the Indian Constitution. The Court said that the Supreme Court and High Courts can invalidate a legislative action which violates federal structure of our nation.

More importantly, in the Golak Nath case34 Chief Justice Subba Rao upheld the law-making role of the judiciary. He said that Articles 32, 141 and 142 of the Indian Constitution enable the Supreme Court to formulate legal principles to reach the ends of justice. Therefore, all such constitutional provisions strengthen the Indian Judiciary, which in consequence attracts people‟s trust.

Widening the scope of judicial review, the Supreme Court in Gridco Limited v Sadananda Doloi35 held that power of judicial review under Art. 226 can be exercised even in those cases where the government is involved in contractual transactions. The court said that a writ Court is entitled to review the administrative action on the ground of illegality, unreasonableness, unfairness or irrationality. However, the writ Court cannot act as an appellate authority while exercising its power of judicial review. Similarly, the writ court cannot sit as an Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances.

5.1 Judicial Review of Legislative Action in India

Article 13 lays down the procedure for judicial review in India. It enables the courts to examine the constitutional validity of laws passed by the Parliament and the state legislatures. In India, Judicial review of legislative action is being done by using some basic principles of Constitutional Law i.e. doctrines of Pith and Substance, Colourable Legislation,Severability, Liberal Interpretation, Limitations of Stare Decisis, Unconstitutionality and Eclipse, and Waiver. Doctrine of Basic Structure is one of the most reliable grounds for judicial review. Article 13 deals with statute law and not with the law declared by the courts, or with the directions or orders made by the Supreme Court under Art. 142

Article 13 of the Indian Constitution Laws inconsistent with or in derogation of the fundamental rights (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions this Part, shall, to the extent of such inconsistency, be void. (2) The states shall not make any law which takes away or abridges rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

The Constitution has distributed the legislative powers between the centre and the states. Both of them have to exercise their powers within their assigned domain. They cannot interfere with the powers of each other. The courts decide whether a legislature or an executive has acted beyond its jurisdiction or against the constitutional requirements or not.

Article 13 provides that „fundamental rights‟ will prevail over all laws in force before the commencement of the Constitution. It also prohibits the making of any law, rule, regulation, etc that violates or diminishes the fundamental rights. However, this provision does not impose restriction on the process of constitutional amendment. Parliament may amend any Constitutional provision while exercising of its constituent power in accordance with the procedure mentioned under Article 368 of the Indian Constitution.

In Golaknath v Punjab,38 the Supreme Court of India categorically held that the Parliament cannot amend the fundamental rights. The Court held that the procedure laid down for the constitutional amendments in Article 368 was „law‟ within the meaning of Article 13.

In this whole confrontation, the Supreme Court of India gave a very revolutionary pronouncement. In Kesavananda Bharti v State of Kerala39 the Supreme Court said that the Parliament is allowed to amend the Constitution but is not authorised to amend the „basic structure‟ of the Indian Constitution. In this case, the Supreme Court ruled that the 24th, 25th,Amendments  were  unconstitutional  to  the  extent  that  they  violate  the  „basicstructure‟ of the Constitution. In doing so the court overruled the majority opinion of Golaknath’s case.40 Again, in order to prevent any kind of chaos the Supreme Court applied doctrine of prospective overruling.

However, the nature and character of „basic structure‟ was elaborated in many other cases. The court in many pronouncements have declared that democracy, secularism, rule of law, federalism, judicial review, separation of powers, etc. are basic features of the Indian Constitution.

The Supreme Court for the first time faced the issue of the applicability of the Basic Structure in Indira Gandhi v Raj Narain.41 The Court decided by a majority that ordinary laws are not subject to the test of the Basic Structure of the Constitution. The doctrine of basic structure is applied only to determine the validity of Constitutional Amendments.

The dispute over the power of judicial review was again discussed in Minerva Mills Ltd. v. Union of India.42 The Court was requested to assess the constitutionality of the Forty-second Amendment, which provided that no amendment would be challenged in any court of law on any ground. The Court unanimously held that the provision was void since it violates the basic structure of the Constitution.

Another interesting case is of State of Rajasthan v Union of India,43 in which scope of judicial review was discussed. In this case, the Supreme Court held that the Proclamation of emergency under Article 356(1) does not have any kind of immunity from judicial review. The Supreme Court or the High Court can strike down the Proclamation if the court finds that it was decided on mala fide or irrelevant or extraneous grounds.

The two recent decisions are of utmost importance where basic structure doctrine and fundamental rights review under Article 13 have been combined. In M. Nagraj v Union of India44 four constitutional amendments i.e. the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000, and the Constitution (Eighty-Fifth Amendment) Act, 2001, were challenged. The amendments enlarged the scope of reservation. It was contended that such amendments were made by the government in order to override the effect of previous Supreme Court‟s decisions. However, the court said that the concept of the „catch-up‟ rule and „consequential seniority‟ are not constitutional principles like secularism, federalism etc. Therefore, the Supreme Court said that deletion or addition of such concepts do not change the equality principle embedded under Articles 14, 15 and 16 of the Constitution. It was concluded that such amendments do not damage the basic structure of the Constitution.

Second recent decision of the Supreme Court came in the year of 2007. This case was I.R. Coelho v State of Tamil Nadu and others. 46 The Supreme Court held that all Constitutional amendments made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic features of the Constitution enshrined under Articles 14, 19 and 21. In order to clarify the situation, the court further declared that even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would still be tested on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

5.2 Judicial Review of Administrative Action in India

Judicial review of administrative action in India has been developed in order to regulate every action of the administrative authorities. In the process of judicial review of administrative decision, the writ court does not sit as an appellate court. Again, it is not for the writ court to replace its own decision against the decision of the administrative authorities. The court scrutinises the whole administrative action, and sees how the whole action was reached. If the court finds an administrative action as arbitrary or irrational, the court sets aside the whole action and sends back the matter to the administrative authority for re-examination. Over the period of time, the courts have evolved many principles or doctrines and grounds for judicial review of administrative action. In Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd.,48 the Supreme Court said that illegality, irrationality, and procedural impropriety49 are grounds for judicial review of administrative action. Courts do not interfere in an administrative decision unless the decision is an outcome of an unfair procedure. Mere suspicion of unfairness would not be sufficient. The claimant has to prove the unfairness in the administrative action in any of its form including abuse or a misuse by the authority of its powers.

The above said grounds were recognised for the first time in famous decision of Lord Greene in Associated Provincial Picture Houses Ltd. v Wednesbury Corpn.50 The court said that the administrative action is unreasonable if the action is based on wholly irrelevant material or on wholly irrelevant considerations or if the action is irrational.

The „doctrine of proportionality‟ is another important basis for exercising judicial review. The doctrine of proportionality is well recognized concept of judicial review. If the administrative authority awards disproportionate punishment, it becomes necessary for the judicial court to intervene. Award of punishment which is grossly disproportionate to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

In India, there is no uniform code which directs the administrative authorities to adopt minimum procedure for taking any of its action. But Indian courts have recognised the principles of natural justice i.e rule of fair hearing and rule against bias, as a precondition for administrative adjudication. Indian judiciary has also widened the scope of these principles by making the authorities more accountable and answerable in their actions. The courts emphasise on its application in all cases irrespective of the fact that whether it is compulsory under some statute or not.52 Moreover, the principles of natural justice are very wide in scope and, include various modes of fairness. Similarly, the observance of principles of natural justice is necessary not only in cases of quasi-judicial functions but also in other kinds of administrative action.53 With the development in administrative law, principles of natural justice have also undergone change. Earlier, the notion was that the enquiries were administrative in nature, therefore it attracts no principles of natural justice. But now, the time has changed. Currently, administrative authorities are supposed to conduct enquires in good faith and without any kind of biasness. In the modern welfare state, it is no more significant to classify any of public authority‟s action while applying principles of natural justice. Under the Indian Constitution, every organ of the State is regulated and controlled by the rule of law. The concept of rule of law requires the State to discharge their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously.

The doctrine of „legitimate expectation‟, as another ground of judicial review, was originated in the case of Schmidt v Secy. of State,55 where it was held that an alien who had been granted permission to enter the U.K. for a limited period had a legitimate expectation for being allowed to stay for the permitted period. This doctrine is now being extensively used by Indian courts although it is not a legal right. While dealing with the nature and scope of legitimate scope, the Supreme Court in Union of India v Hindustan Development Corporation56 explained that the legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. It is mandatory that the expectation should be justifiably legitimate and protectable. And every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.

8. Summary

The doctrine of judicial review, in its modern sense, has been originated in the United States of America. Moreover, practices of the doctrine in United States also influenced many countries in the whole world. The courts examine the actions of public bodies and protect the will of Parliament. The courts check whether the bodies are functioning within the powers they have been given. If bodies act outside those powers, the courts consider it void as it is against the intention of the Parliament. The Indian Constitution explicitly provides for judicial review through articles 13, 32, 131-136, 143, 226 and 246. In contrast to the judicial review of legislative action, the courts in India use the power of Judicial review more against the excesses of administrative action.

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References:-

1. Vibhuti Singh Shekhawat, ‘JUDICIAL REVIEW IN INDIA : MAXIMS AND LIMITATIONS’ TheIndian Journal of Political Science, Vol. 55, No. 2 (April – June 1994), pp. 177-182 < http://www.jstor.org/stable/pdfplus/10.2307/41858807.pdf?acceptTC=true>
2. Mauro Cappelletti, ‘Judicial Review in Comparative Perspective’ California Law Review, Vol.58, No. 5 (Oct., 1970), pp. 1017-1053 < http://www.jstor.org/stable/pdfplus/10.2307/3479676.pdf?acceptTC=true>
3. Review by: Bhagwan D. Dua, ‘Judicial Review in India’ by Vijay Lakshmi Dudeja Pacific Affairs,Vol. 62, No. 4 (Winter, 1989-1990), pp. 564-565 < http://www.jstor.org/stable/pdfplus/10.2307/2759695.pdf?acceptTC=true>
4. Michael Freitas Mohallem (2011) Immutable clauses and judicial review in India, Brazil and South Africa: expanding constitutional courts’ authority, The International Journal of HumanRights, 15:5, 765-786 < http://www.tandfonline.com/doi/pdf/10.1080/13642987.2011.572703>
5. Dan Banik (2010) Governing a giant: the limits of judicial activism on hunger in India, Journal of Asian Public Policy, 3:3, 263-280 < http://www.tandfonline.com/doi/pdf/10.1080/17516234.2010.536343>
6. Payel Rai Chowdhury (2011) Judicial activism and human rights in India: a critical appraisal, The International Journal of Human Rights, 15:7, 1055-1071 < http://www.tandfonline.com/doi/pdf/10.1080/13642987.2010.482912>

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