Judicial Review

Judicial Review

Author: Vidhi S Shrivastav

Introduction

The State is no longer a laissez-faire state but has now gravitated towards becoming a welfare state. As per Article 12 of the Constitution of India1, the term ‘State’ may be used to denote Union Government and State Government, Parliament and State Legislatures, and all local or other authorities within the territory of India or under the control of the Indian Government. The State is encompassed with three organs – the Legislative, the Executive and the Judiciary.

In such a welfare state, the welfare of the citizens is of utmost priority. The aim is to take care of its citizens from “Cradle to Grave”. It seeks to eliminate poverty and exploitation of its citizens by promoting literacy, providing employment and essential commodities, all with the intent of safeguarding the interest of its citizens.

Whether liked or not, the executive organ of the state ought to be vested with some discretionary powers. It is observed that whenever such discretionary power is vested, there has been a strong possibility of such power being used illegally or for serving personal interests. Thereby, such discretionary powers are to be kept in strict control.

The observations of Lord Denning may duly be taken into context here, that is, “if such (discretionary) powers are properly exercised, they lead to a welfare state, but if abused they certainly make the way of a totalitarian state. It is for this reason that Judicial review of administrative action has become a vital part of Administrative Law.”

This brings us to the crux of our discussion ie. Judicial Review, which is considered by the Supreme Court to be a basic feature of the Indian Constitution.

What is Judicial Review?

Judicial Review is an important and recognized part of Administrative law and is considered to be the basic feature of the Constitution of India.

Judicial Review may be described as a procedure taken by the courts to ascertain the validity of an action taken by an executive authority. It is primarily concerned with the manner the decision is taken or an order is passed by an administrative authority. The correctness or merits of the particular order are of secondary concern.

In the observations of Lord Halsbury, “if a legislature has conferred certain powers on a particular body, giving it a discretion as regards how they are to be exercised, it is beyond the power of any court to contest such discretion.”Thus the court does not act as a court of appeal. The court, in this exercise of judicial review, is thereby, only concerned whether the administrative authority or tribunal has acted within its powers and followed the proper procedures.

The above-mentioned attributes of Judicial Review are reiterated in the case of Chairman and Managing Director, United Commercial Bank and others v.P.C.Kakkar2  where the Supreme Court has held that –“The common thread running through in all these decisions is that the Court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury’s case 3(supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision.”

Judicial Review as mentioned in the Constitution of India

Judicial Review, an important organ of Administrative Law, which has features illustrated to be that of safeguarding the rights of its citizens and implement the Fundamental rights4 as laid down in the Constitution of India.

The Directive Principles of State Policy enshrined in Part IV of the Constitution from Articles 36-51, contain a multitude of guiding principles ushering the concept of the welfare state which can be understood as follows:

  • The State shall strive to promote the welfare of people by reducing economic inequality as well as inequalities in the status and opportunities, that it shall aim at securing the right to an adequate means of livelihood for all citizens and equal pay for equal work for both men and women.

The Indian Constitution has given influences to the High Courts and to the Supreme Court of India to scrutinize the legitimacy of administrative action and the statutes. Such a facility of Judicial assessment bestowed by the Constitution of India from the foundation laid by the American Constitution.

The Constitution of India has bestowed the Power of Judicial Review to the High Courts and to the Supreme Court of India.

The theory, as well as the text of the Constitution of India, provides the Judiciary with the power of Judicial review of the legislation. The Articles of Constitution pertaining to judicial review may be illustrated as follows:

Article 13 states that any act which contravenes with the provisions as laid out in the Fundamental Rights, such act shall be termed as void. Article 13(2) provides as follows: “the state shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

Article 32 pertains to the Supreme Court of India being a protector and guarantor of Fundamental Rights and Article 226 pertains to the High Courts being a protector and guarantor of Fundamental Rights.

A case can be mentioned of PN Kumar v. Municipal Corp. Of Delhi5, a two-judge bench of the Supreme court held that the citizens should not come to the (Supreme) court directly for the enforcement of their fundamental rights, but they should first seek a remedy in the High courts and then if the parties are dissatisfied with the high court’s judgment, they can approach the supreme court by way of appeal. In this case, the petitioner challenged the imposition of various taxes on their hotel. Disposing the petition the apex court laid down following guidelines for the exercise of the right under Article 32:

(1) The scope of article. 226 6 are wider than article. 32.7

(2) Hearing of the case at the level of high courts is more convenient to the parties. it saves a lot of time.

(3) The High court has its own tradition and eminent judges/ lawyers,

(4) The Supreme Court’s workload is too much with cases pending before it for the last 10-15 years.

Article 131-136entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state, between the states and the union; but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.

Article 143illustrates the Power of President to consult Supreme Court ( 1 ) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon

The abovementioned Article found its usage in the Ram Mandir- Babari Masjid Case8, also known as the Ayodhya Case’ wherein the President of India made a reference to the Supreme Court under Article 143 of the Constitution. The Reference was “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhoomi and Babari Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stands…”

Article 145 states the Rules of the court. Wherein, Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including, any judgment pronounced or order made by the Court may be received and rules as to the conditions the procedure for such review including the time within which applications to the Court for such review are to be entered;

Article 246(3) ensures the state legislature’s exclusive powers on matters pertaining to the State List.

Article 251and 254 in cumulative states that in case of inconsistency between union and state laws, the state law shall be void.

Article 372  provides for Judicial Review of Pre- Constitution Legislation.

Applicability of Judicial Review

Judicial Review finds its applicability in cases wherein the administrative authorities do not act within their allocated jurisdiction and follow proper procedures. Such an act may occur due to:

1.Failure in exercising proper usage of discretionary powers,which may occur in instances such as:

a) Where the particular party has sub-delegated its powers to another party / administrative official. Such condition is descriptive of the maxim Delegatus non potestdelegareie. A delegate cannot delegate.

b) Wherein an administrative authority adopts a fixed rule of policy applicable to every case, it amounts to a failure to exercise discretion.

c)Wherein an authority entrusted with particular power acts solely on the dictates of its superior, such an act would be struck down by the court as it amounts to surrender and abdication of power.

2. Excess or abuse of discretion, which may arise in instances such as:

(a) An act without Jurisdiction wherein if an authority acts beyond its powers the said act would be termed as void/ non-existent in the eyes of law or in case of any act exceeding jurisdiction wherein it exceeds the boundary set by law, such an act be ultra vires and also void.

(b) In case of any Arbitrary, discriminatory or unreasonable Action by an administrative authority, such action is to be struck down by the court.

In the case of Barium Chemicals Ltd. v. Company Law Board 9, the Supreme Court held that the formation of an opinion by the Central Government that the affairs of the company need to be investigated into was arbitrary and unreasonable and thereby not valid.

(c) In case of Mala fide Action, which includes:

(i)Malice, in fact, involving of ill-will, vengeance, personal enmity and like factors. If such malice is proved to be exercised by the administrative authorities, the court may have no action but to strike down the administrative action,

(ii) Malice in law, in which there is no personal vendetta but there is the execution of power without just and reasonable cause.

Case Laws on Judicial Review:

The below mentioned are a few Case Laws which have supplemented the growth and development of Judicial Review in India:

  • Kesavananda Bharti v. State of Kerala10

Also known as Fundamental Rights case, it brought forth the concept of the Doctrine of Basic Structure. It is an Indian judicial principle that states that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.

  • Minerva Mills v. Union of India11

It is a landmark case of the Supreme Court of India which provided further elaboration on the interpretation of the doctrine of the basic structure laid down in Kesavananda Bharti v. the State of Kerala, also laying down a foundation for judicial review of laws and judgments in the Court of India. The Judgment of the court stated that the parliament’s power to amend is not a power to destroy and thereby parliament cannot hinder with the fundamental rights of individuals, and also including the right to liberty and equality(considered a basic structure of the Constitution)

  • Golak Nath Vs. the State of Punjab 12

Before the aforementioned decision, the Supreme Court held that the Amendment Acts were not ordinary laws and could not be struck down by the application of Article 13.

In this case, where the validity of the 1st, 4th, and 17th constitutional amendments was challenged the Supreme Court reversed its earlier decision to uphold the provision under article 368 which put a check on the Parliament’s propensity to abridge the fundamental Rights under chapter III of the Constitution, thus becoming a landmark decision.

(d)P.A. Inamdar v. State of Maharastra,13

In the said case, the Supreme Court abolished State quotas in private unaided professional colleges and specifically held that the state could not impose reservations in unaided institutions. This led to the passing of the Constitution (Ninety-third Amendment) Act, 2005 by the Parliament in December 2005.

(e) ChampakamDorairajan v. State ofMadras.14

In Champakam Dorairajan case, the Government of Madras reserved seats in state medical and engineering colleges for different communities in certain proportions on the basis of religion, race, and caste which was challenged as unconstitutional. The government defended its order on the grounds of article 46 of the Constitution, permitting the state to promote with special care the educational and economic interests of the weaker sections of the people and in particular scheduled castes and scheduled tribes to secure social justice. But the Supreme Court struck down the order as it was violative of equality guaranteed under Article 15(1) and observed that directive principles can’t override the guaranteed fundamental rights. As a result, the Parliament brought an amendment to article 15 and inserted clause (4) by the virtue of The Constitution (First Amendment) Act, 1951.

Conclusion:

Judicial review, over the varied years, has proven to be one of the important mechanism through which the courts may examine the actions of the legislature, the executive and other varied governmental agencies and then decide upon whether or not the actions by such authorities are valid and within the limits set by the Constitution, thereby not infringing the doctrine of Basic Structure.

It may be thereby be inferred that Judicial Review grants the Court the power to act as a custodian of the fundamental rights, thereby exercising good governance.

Also Read,

Reference:

  1. ­­­­­­­­­­­­Article 12 of The Constitution of India,1949
  2. (2003) 4 SCC 364 
  3.  (1948) 1 KB 223
  4. Part III ,Articles 12- 32 of the Constitution of India,1949
  5. C.M.P No. 8678 of 1986 in W.P No. 9144
  6. Article 226 of the Constitution of India 1949
  7. Article 32 of the Constitution of India 1949
  8. M Siddiq (Deceased) ThrLrs v. Mahant Suresh Das &Ors .Decided – 9/11/2019
  9. AIR 1967 SC 295
  10. ( 1973 ) 4 SCC 225
  11. AIR 1980 SC 1789
  12.  1967 AIR 1643; 1967 SCR(2) 762
  13. AIR 2005 SC 3226
  14. AIR 1951 SC 226

3 thoughts on “Judicial Review

  1. In Indian legal systems and subsystems, the functional aspects have been becoming big question marks due to many reasons including latent and patents power and authorities etc.We are lucky to have Power of Judicial Review in our Indian Constitution but with slow speed..A bitter truth!

  2. In Indian legal systems and subsystems, the functional aspects have been becoming big question marks due to many reasons including latent and patents power and authorities etc.Articles written by Vidhi S Srivastava is excellent.

  3. In Indian legal systems and subsystems, the functional aspects have been becoming alarming questions .Articles written by Vidhi S Srivastava is excellent.

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