Abstract

 

Judicial Review performs checks and balances of the system between the Judiciary and Legislature by providing the power to the judiciary to review any law made by the Parliament and further hold it to be void if it is not in consonance with the provisions of the Constitution.

Judicial Review is the judiciary’s power to review the legislation made by the Parliament on the Constitution and falls under the scope of Judicial Review. Presently, in India, the Rule of Law is followed making the Constitution the supreme law of the land and above than any other laws. If any of the statutes which is not in consistency with the Supreme Law are held void.

The separation of power is a concept based on “trias politica”. [1]The principle suggests the tripartite system where the powers are delegated and distributed in three organs (Legislative, Executive, Judiciary) outlining their individual jurisdiction.

In India, there is no separation of power defined however in actual there is a separation of powers. therefore, In India, the constitution is not stuck by the principle by its rigidity.

Since we discuss on the judiciary review, we also have to see that there are some limitations on the judiciary on exercising its power of judicial review. Thus, on the fact we can say, when the judiciary crosses its threshold and interferes in the executive’s or legislative mandate, it can be called judicial activism, which when furthered can lead to judicial overreach.

The article below is an effort to actual meaning and concept of the judicial overreach, which in turn safely call as the Limitation of the Judicial Review.

 

 

 

 

Judicial Review-An Overview

 

The Indian constitution was adopted by the Constituent Assembly in 1950 and there are no particular provision which states that the Constitution to be the leading law of the land, however in with period of time it has been the outcome that  a declaration of such nature was deemed to be superfluous. In the Indian constitution there is no hard separation of power however the three branches of the government, the judiciary, executive and the legislature, were differentiated in the powers and also have outlined their individual jurisdiction.

it was not expected by any of the power to interfere with the functioning of the other bodies, as then the distribution of powers will hold no significance then after. Hence, Indian judiciary came with the conclusion that the supremacy of Constitution has been regarded to be a part of the basic structure of the Indian Constitution, which cannot be severed or destroyed even by the process of Constitutional amendments[2].

In countries like US and India, where written constitutions are adopted, it can be seen that in these countries prevails the doctrine of judicial review. This gives an insight that the constitution is the supreme law of the land and any law inconsistent there with is void.

As function, there are two very crucial functions that judicial review sought to perform. One is that of legitimizing government action, and another is to protect the constitution by being encroached by the government

In India, judicial review is based on the doctrine of ultra vires and it is age long concept since the inception of British rule. The legitimacy of judicial review was never a question in the as per the Indian constitution since the article 13(2)[3] of the Indian Constitution says specifically that a law inconsistent with the fundamental rights guaranteed by part III is void. This provided a conclusion on the legitimacy of the judicial review and the Indian Supreme Court made it clear in one of the earliest cases that the power of judicial review is inherent in a written constitution and exists independently of article 13 (2)[4].

Judicial review can be meant as the reconsideration of a degree or sentence of an inferior Court, however currently the concept has undergone great changes and any of the literal meaning of judicial review is invalid. The judicial review is available against the  exercise of power of public authorities, whether they are constitutional, quasi-judicial or governmental when a person who is aggrieved by such a decision brings it before the court, The power of judicially review any decision is an extraordinary power that lies with the superior court .

It is Significantly important that Judicial Review, generate a network of checks and balances on the laws passed by the legislature. the separate functionary Legislature, executive and judiciary under the Constitution are to exercise powers with checks and balances, however not in water-tight rigid mould.

In India, Arts. 32 and 136, provided by constitution gives the Supreme Court to exercise the power of judicial review. Similarly, under Art. 226 and 227 High Courts have a power of judicial review.

Judicial Review Classification

 

The Doctrine of Judicial Review is the interposition of the judicial restraint on the legislative, executive and judicial actions of the government. It has gained the status of permanence through judicial decisions which were laid down from 1973 till now. Judicial Review has now become the basic structure of the constitution of India and any act or attempts to destroy or damage the basic structure is unconstitutional.

Judicial review in India can be classified in the three categorical area.

1. Review of Judicial decision
2. Administrative Action Judicial Review
3. Legislative Action Judicial Review

Review of Judicial decision

 

The review of the judicial decision refers to a court's review of a decision of a lower court in order to determine whether an error was made. in case of the Supreme Court, the term also refers to the Court's power to pass judgment on the constitutionality of actions of state and federal legislatures and courts.

it is a common form of judicial review to review of a lower court decision by a higher court. In the appeal process the Courts review these decisions provided when a losing party in a case claims an error was made and appeals to the higher court to examine the decision.

Adjudication of disputes between individuals, between individuals and the state, between the states and the union as a power is provided to the court by Constitutional Articles 131-136 however the lower court is required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honored by all courts of the land.

Review of Administrative Actions

 

The state intervenes into the lives of its citizens to a very considerable degree for protecting the public and maintaining law and order.

The actions carried out under the administrative law are administrative actions. It is an  legal action which is concerned with the conduct of a public administrative body. The authority can compel to perform certain action however It does not decide a right though it might affect a right.

it is required that All administrative powers must be exercised bonafide and fairly. In case of any of powers are abused, it leads to a ground of judicial review.

The judicial review in five types of writs are available for administrative actions and are given under Article 32 and Article 226 of the Constitution of India.

Habeas Corpus

this means to “have the body”. This type of writ is issued as an order to call upon the person who has detained another person, to produce the detainee before the court of law.

Mandamus

this writ means ‘to command the public authority’ to perform its duty. The command which are given by the higher courts (High Courts and Supreme Court) to the Government, Inferior courts, tribunals, corporations, authorities or any other person to do any act or refrain from doing an illegal act

Quo Warranto

The meaning of ‘quo warranto’ is by what authority. These writs are issued against a person who usurps a public office. The court can direct the concerned person to show by what authority he holds that office

Prohibition

The writ of Prohibition is issued by a superior court to an inferior court or tribunal or body exercising judicial or quasi-judicial functions to prevent them from exceeding their jurisdiction.

Certiorari

the writ is used by Superior Courts (High Courts and the Supreme Court) to the inferior court or tribunal or body which may exercise judicial or quasi-judicial functions, to correct the jurisdiction or error of law committed by them.

Judicial Review of Legislative Action

 

Article 13 in the constitution of India provides for the judicial review of all legislations in India which are created in past or any law created in future. The power is conferred on the High courts and the Supreme court of India who can declare a law unconstitutional in case if it is inconsistent with any of the provisions of fundamental rights provided under the constitution.

Chief Justice Patanjali Shastri in case[5], commented  that Indian constitution contains express provision for judicial review of legislation so as to its conformity with the constitution.

Chief Justice Kania in case[6], pointed out that it was only by way of abundant caution that the framers of our constitution inserted the specific provisions in Art 13. In India, constitution is supreme, and all statute laws passed by the legislation must be in conformity with the constitutional requirements and judiciary has to decide whether any enactment is constitutional or not in case arising of any question before the law.

Apart from the legislation body making the laws on the subject matter, it is required with the changing time and amendment in the constitution is required. Amendments can be done by simple, majority or by the special majority and ratification by the state. Articles which can amended with above is laid down in the Article 368.

In the case[7], the First Amendment of the constitution was challenged on the basis that it abrogated the fundamental right. It was agued that the law under Article 13 (3) includes the constitutional amendment law however Supreme Court rejected the contention and held that the word law in Article 13 is in conformity to the rules or regulations made in exercise of constitutional power and amendment in constitution lies in the provision specified in the article 368.

Sajjan Singh vs State of Rajasthan[8], Supreme court stuck to the position laid down in Shankari Prasad case and held that the constitutional amendments made under Art 368 are outside the purview of judicial review by the courts.

In Golaknath vs State of Punjab Supreme Court held that

1. The power of parliament to amend the constitution is derived from Article 245 and should be read with entry 97 of list first of the constitution and not from Article 368. Article 368 implies the procedure for the amendment of the constitution. Amendments are legislative processes.

2. An Amendment is a law within the meaning of art 13 (3), and includes every kind of law, statutory as well as constitution law and therefore a constitutional amendment which contravenes the  Art 13 (3) will be declared void. it is now clear from the Supreme Court position that fundamental rights in the constitution are given a transcendental position and are kept beyond the reach of parliament.

this lead to the parliament to make the amendment in the article 368 to add the power to the parliament to change the constitution and art-13 was amended that the application of article-13 shall not be applicable for the Article-368.

In  Kesavananda Bharati[9] case brought the  doctrine of the basic structure. it overrulled the judgment given in the Golaknath vs State of Punjab case and held that the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”. The judgement listed some basic structures of the constitution as:

1. Supremacy of the Constitution
2. Unity and sovereignty of India
3. Democratic and republican form of government
4. Federal character of the Constitution
5. Secular character of the Constitution
6. Separation of power
7. Individual freedom

From the above discussion, we can see the judicial review and application of the judicial review in the areas like judiciary, executive decision, legislative statues and the judicial review on the constitution amendment.

It is also to be seen that the judicial review needs to be in reach of the judication it have, in case of over reach, the powers could encroach the administrative and legislative power.

Limitation of Judicial Review

 

judiciary has Limitations on exercising its power of judicial review. In case the judiciary crosses its threshold by interfering in the executive’s mandate, it leads to judicial activism, and can further lead to judicial overreach. the functioning of the government is limited by Judicial Review. In Marbury vs Madison Case, chief justice Marshall held that  Court should not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should.

it is required the extent should be only to see if the procedure in reaching the decision has been correctly followed but not the decision itself. Opinions provided by the judges in any judicial case become the standard for ruling other cases

Judicial review are part of the Supreme Court and the High Courts and these rights are not conferred to the lower courts. The faith of the people in the integrity, quality, and efficiency of the government can be diminished by the court by repeated interventions

The political questions and policy matters should not be interfered by the Judicial review unless necessary.

In case the judgments are influenced by personal or selfish motives, then it can lead to harming the public at large. Legislative power set to be exercised by the constitution are violated by the judicial review when it overrides any existing law. A separation of functions is followed in India instead of the separation of powers.

though the concept of separation of powers is not adhered to strictly, However it is required to have a system of checks and balances that the judiciary has the power to strike down only unconstitutional laws passed by the legislature.

The court cannot award the contracts and perform the interface in the administrative process unless the process is malefice, bias or Arbitrariness to the extent of perversity.

The Judicial review in the administrative process is only restricted to the procedure established by the law. That means judicial review over the administrative process which are not following under Jurisdictional Error, Irrationality, Procedural Impropriety, Proportionality, Legitimate Expectation leads to the judicial overreach. In case[10], it was concluded that though these grounds of judicial review are not exhaustive, yet these provide an apt base for the courts to exercise their jurisdiction.

It is clear from the Doctrine of “Strict Necessity” that Court has to decide constitutional issues only if strict necessity compels it to do so. Thus, constitutional questions will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied, nor if the record presents some other ground upon which to decide the case, nor at the instance of one who has availed himself of the benefit of a statute or who fails to show case that the injury is due to its operation, nor if a construction of the statute is fairly possible by which the question may be fairly avoided.

In one of such case on PIL filed where a  policy decision, by the  Telangana government’s on proposal to demolish existing Secretariat building and construct a new one, was not against any law, hence one cannot say it was arbitrary and unreasonable.

The judicial review through the PIL should clearly demark the petition as public interest or Private interest through the Doctrine of “Strict Necessity”. The PIL are now days being the tool for the Private interest can be miss used to delay the public good administrative actions or legislative laws.

In case of any flaw in the legislative action, the judicial review is limited to the The Doctrine of Clear Mistake. Any judicial review on the legislative laws beyond the Art.13 and not being testified with the  Doctrine of “Strict Necessity” or The Doctrine of Clear Mistake is judicial overreach on the subject matter.

All the constitutional interpretation by the court through judicial review has to test the Exclusion of Extra-Constitutional Tests.—where judicial review is restricted to the constitutional validity of the law and not with its motives, policy, or wisdom, or with its concurrence with natural justice, fundamental principles of government, or the spirit of the Constitution.

There are certain practical limitations on what courts in fact can do. They arise out of the nature of the judicial process, rather than constitutional prohibitions. Where a court cannot adequately protect or give effect to all the interests involved in a case before it or where the judicial machinery is unsuited for rendering justice as the facts require, judges should refrain from hearing the case.

According to the  presumption theory, which is in favor of constitutionality, and a law will riot be declared tin constitutional unless the case is so clear as to be free from doubt; and the onus to prove that its unconstitutional lies upon the person who challenges it

In case of the judicial review on the validity of a stature is questioned and there are two interpretations, one of which would make the law valid, and the other void, the former must be preferred and the validity of the law will be upheld.

The court judicial review should not be deciding constitutional questions if a case is capable of being decided on other grounds.

The court judicial review should not decide a larger constitutional question than is required by the case before it.

The court judicial review should not hear an objection as to the constitutionality of a law by a person whose rights are not affected by it.

The court judicial review can be done only laws which are in force and courts should not pronounce on the validity of an Act or Part of an Act which has not been brought into force.

Finding

 

Judicial review can be sought on the grounds that a decision is:

illegal - arises when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting 'ultra vires';

irrational - a decision may be challenged as unreasonable if it "is so unreasonable that no reasonable authority could ever have come to it";

procedurally improper – a failure to observe statutory procedures or natural justice; or

in breach of legitimate expectation – when a public body has failed to act in line with an expectation that it has created by its own statements or acts.

In case of the legislative or constitutional amendment, the Art.13 should be validated and any law made or enforced which are inconsistent with the Art.13 are invalid.

Similarly the Art.368 and Doctrine of basic structure should be enact for any amendment of the constitutional provision.

The judicial review should be only on the procedure of the law and on the matter before the court. The court should decide whether the issue before court fits within the Doctrine of Strict Necessity and issue in fact is accordance to the court jurisdiction as provided in the constitution. Overreaching of the judicial review can harm the government and faith or people in the government.

Conclusion

 

The scope of judicial review is limited both in its availability and function: the role of the court is not to re-make the decision being challenged, or to inquire into the merits of that decision, but to conduct a review of the process by which the decision was reached in order to assess whether that decision was flawed and should be revoked. 

Judicial review has lead to a debate in finding out the demarcation between the Judicial Activism and Judicial Self Restraint. Judicial Review in its meaning  is the power of the courts to consider the constitutionality of acts of organs of Government and to declare it unconstitutional or null and void if it violates or is inconsistent with the basic principles of Grundnorm i.e. Constitution.

The judicial review in recent times has evolved in three dimensions as  firstly, to ensure fairness in administrative action. The second dimension is to protect the constitutionally guaranteed fundamental rights of citizens and third dimension is to rule on questions of legislative competence between the center and the states.

Judicial Activism does not mean judicial adventurism. Judges should never be activist as sometimes judicial activism is a useful adjunct to democracy.

Suggestion

 

Protentional judicial power is with the  judges in India have  potent judicial power in their hands, namely the power of judicial review. The judiciary must play a vital and important role not only in preventing the remedying abuse and misuse of power but also in eliminating exploitation and injustice.

Going forward, there should be clear debate on the judicial activism and appropriate use of the PIL so that these are not being miss used for the political gain. Judiciary should find out the main intention of the filing the PILs or the writs where the constitutional remedy are asked. The recent CAA or the abrogation of the Article 370 were challenged in the Supreme court for the gain of the political agenda and being used for the publicizing the ill effect than the profits we would be making out of the cases. Such of the cases when reaching the Judiciary for the review, it should be first checked if suc2 cases are for the political gain or any part raising the issue is purposefully doing so to bring bad to the common good of the people.

Currently the tools of the judicial review by many society people, NGOs are the puppet mouth of the political parties or the agenda which are being supported by the International countries or communities who have ill wishes for the sovereignty of Our country. It is time for the Court to look through the transparent glass and the parties behind these causes, looking for the judicial review and their real motive behind the same.

The another controversial interpretation of the Constitution with regards to the selection of the CJI is that the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges to the hands of the Chief Justice and his consultation. This lead to the power in the Chief Justice of India and a collegium of four judges for the selection process, where-in such provision is in no Constitution in the world  to select and appoint judges conferred on the judges themselves. This process has to be looked through.

 

 

 

 

 

 

 

Appendix

 

Article 13. 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 of this Part, shall, to the extent of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality

Article 368. Power of Parliament to amend the Constitution and procedure therefor

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent

(3) Nothing in Article 13 shall apply to any amendment made under this article

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS

Reference

1. https://www.lawteacher.net/free-law-essays/constitutional-law/jurisdiction-of-the-supreme-court-constitutional-law-essay.php#:~:text=Judicial%20review%20is%20an%20essential,which%20is%20inherited%20from%20Britain.
2. https://www.ebc-india.com/lawyer/articles/2001v6a1.htm
3. https://shodhganga.inflibnet.ac.in/bitstream/10603/38174/8/08_chapter%202.pdf
4. https://www.lawctopus.com/academike/grounds-judicial-review-123/
5. https://indiankanoon.org/