You are on page 1of 20





Legal Language & Legal Writing

LLBG 105

Under the Supervision of: Dr. Shikha Dimri


SAP NO: 500055208
ROLL NO R760216036

Before starting this project I would like to thank my faculty, Dr. Shikha Dimri for giving
me such a wonderful topic to work on. The topic was really challenging and I was very
interested in doing this project. I would also like to thank University librarys librarian
who constantly guided in choosing the appropriate books for reference and also my
friends and guardians.










According to Black's Law Dictionary, judicial review is "a philosophy of judicial decision-
making whereby judges allow their personal views about public policy, among other
factors, to guide their decisions, usually with the suggestion that adherents of this philosophy
tend to find constitutional violations and are willing to ignore precedent."

Merriam-Webster's Dictionary of Law, defines judicial review as "the practice in the judiciary
of protecting or expanding individual rights decision that depart from established precedent or
are independent of or in opposition to supposed constitutional or legislative intent."

The Dictionary of Political Science,1 defines Judicial Review as The power of the court to
review statutes or administrative acts and determine their constitutionality, the examination of
Federal and State Legislative Statutes and the acts of executive officials by the courts to
determine their validity according to written Constitution.

The Supreme Court in Kartar Singh v. State of Punjab2, explained Judicial review as it is not
only concerned with the merits of the decision but also of the decision-making process. It intends
to protect the individual against the misuse or abuse of the power by a wide range of authorities.
Judicial review is a protection to the individual and not at weapon.

Section 114, CPC, 1908 defines Judicial Review as a Means to look again main object of
granting a review of judgment in reconsideration of the same matter by the same judge under
certain conditions.
Judicial review is the doctrine under which legislative and executive actions are subject to review
(and possible invalidation) by the judiciary. Specific courts with judicial review power must
annul the acts of the state when it finds them incompatible with a higher authority (such as the
terms of a written constitution). Judicial review is an example of the separation of powers in a
modern governmental system (where the judiciary is one of three branches of government). This
principle is interpreted differently in different jurisdictions, which also have differing views on
the different hierarchy of governmental norms. As a result, the procedure and scope of judicial
review differs from country to country and state to state.

1 Joseph Dunner, 1965, p. 285.

2 (1994) 3 SCC 569 (738)

There has been tremendous expansion in the administrative process. Expansion in the
administrative power is a consequence of the concept of welfare state. All legal power, according
to H.W.R. Wade, 'as opposed to duty, is inevitably discretionary to a greater or lesser extent'
Therefore, in order to maintain rule of law it is absolutely necessary to control this discretionary
element in the administrative power. Justice Douglas of the U.S. Supreme Court has rightly
remarked that it is the majesty of the administrative law that it has been able to control absolute
discretion on the part of the government or any ruler or official because absolute discretion is a
ruthless master. It is more destructive of freedom than any of man's inventions.

Therefore, the judicial control over the administrative action becomes imperative. There are two
types of remedies against the administrative wrongs private law remedy of suit and judicial
review through writs. Civil law remedy is not effective against the administration. It is the public
law remedy of judicial review through writs which is very effective and expeditious, though it is
costly as only High Courts and the Supreme Court have the power to issue these writs.

The power of judicial review is a supervisory power and not a normal appellate power against
the decisions of administrative authorities. The recurring theme of the apex court's decision
relating to nature and scope of judicial review is that it is limited to consideration of legality of
decision making process and not legality of order per se. That mere possibility of another view
cannot be a ground of intference.

Judicial review of administration is, in a sense, the heart of administrative law. It is certainly the
most appropriate method of inquiring into the legal competence of a public authority. The aspects
of an official decision or an administrative act that may be scrutinized by the judicial process are
the competence of the public authority, the extent of a public authoritys legal powers, the
adequacy and fairness of the procedure, the evidence considered in arriving at the administrative
decision and the motives underlying it, and the nature and scope of the discretionary power.

Most modern legal systems allow the courts to review administrative acts (individual decisions
of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In
most systems, this also includes review of secondary legislation (legally-enforceable rules of
general applicability adopted by administrative bodies). Some countries (notably France and
Germany) have implemented a system of administrative courts which are charged with resolving
disputes between members of the public and the administration. In other countries (including the
United States, United Kingdom and the Netherlands), judicial review is carried out by regular
civil courts although it may be delegated to specialized panels within these courts (such as the
Administrative Court within the High Court of England and Wales). The United States employs a
mixed system in which some administrative decisions are reviewed by the United States district
courts (which are the general trial courts), some are reviewed directly by the United States courts
of appeals and others are reviewed by specialized tribunals such as the United States Court of
Appeals for Veterans Claims (which, despite its name, is not technically part of the federal
judicial branch). It is quite common that before a request for judicial review of an administrative
act is filed with a court, certain preliminary conditions (such as a complaint to the authority
itself) must be fulfilled. In most countries, the courts apply special procedures in administrative


There are three broad approaches to judicial review of the constitutionality of primary legislation
that is, laws passed directly by an elected legislature. Some countries do not permit a review of
the validity of primary legislation. In the United Kingdom, statutes cannot be set aside under the
doctrine of parliamentary sovereignty. Another example is the Netherlands, where the
constitution expressly forbids the courts to rule on the question of constitutionality of primary

In the United States, federal and state courts (at all levels, both appellate and trial) are able to
review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of
legislation that is relevant to any case properly within their jurisdiction. In American legal
language, "judicial review" refers primarily to the adjudication of constitutionality of statutes,
especially by the Supreme Court of the United States. This is commonly held to have been
established in the case of Marbury v. Madison4, which was argued before the Supreme Court in
1803. A number of other countries whose constitutions provide for a review of the compatibility
of primary legislation with the constitution have established special constitutional courts with
authority to deal with this issue. In these systems, other courts are not competent to question the
constitutionality of primary legislation.

Brazil adopts a mixed model since (as in the US) courts at all levels, both federal and state, are
empowered to review primary legislation and declare its constitutionality; as in Germany, there is
a constitutional court in charge of reviewing the constitutionality of primary legislation. The
difference is that in the first case, the decision about the laws adequacy to the Brazilian
Constitution only binds the parties to the lawsuit; in the second, the Court's decision must be
followed by judges and government officials at all levels.


3Article 120 of the Netherlands Constitution

4Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)

The ultimate (though not necessarily the most appropriate) means by which public law disputes
are resolved is by bringing the matter before the Administrative Court using a claim for judicial
review. Broadly, in order to succeed, the claimant (the person or body bringing the case) will
need to show that either:
the person or body is under a legal duty to act or make a decision in a certain way and is
unlawfully refusing or failing to do so; or
a decision or action that has been taken is beyond the powers (in Latin, ultra vires) of
the person or body responsible for it. Only then, will a public law wrong have occurred.
Generally, it does not matter if the judge, faced with the same decision, would have
decided the merits of the case differently. This reflects the fact that judicial review
involves supervision of administrative decision making did the public body act in a
lawful manner in deciding the way that it did. There are three categories of public law
wrongs which are commonly used and which will be considered in turn:


Fairness; and

Irrationality and proportionality.


The Power of judicial review is a constitutional power since it is the Constitution which invests
these powers in the Supreme Court and the High Courts in the States. So far the Supreme Court
is concerned the relevant Articles are 32 with Articles 12 and 13 and Article 136. Article 32
empowers the Supreme Court to issue directions, orders or writs (which are specifically
mentioned therein) for the enforcement of fundamental rights. What is unique about Article 32 is
that the right to move the Supreme Court under this Article is itself a Fundamental Right. Thus
the Supreme Court is made guarantor or protector of the fundamental rights. Dr. Ambedkar
called it the soul of the Constitution. The Supreme Court has further expanded the scope of this
Article even in cases where no fundamental right is involved. In Jhumman Singh v. CBI 5, it was
held that where a person manipulated facts in order to get a decree by a court to defeat the ends
of justice, in such a situation petition was held to be maintainable under Article 32. Though
Article 32 is called cornerstone of the democratic edifice, it becomes inconvenient for the
Supreme Court to entertain petitions under original jurisdiction since it could overload the court.

Therefore, sometimes the Supreme Court suggests that the petitioner should first approach the
High Court under Article 226 before coming to the Supreme Court under Article 32.



Under Article 136, the Supreme Court may grant special leave to appeal against any decision of a
Tribunal. What is a Tribunal is not defined, but the Supreme Court has interpreted it in a liberal
5 Jhumman Singh v. CBI , 1995 (3) SCC 420. Also see M.C.Mehta v. Union of India, A.I.R 1987, SC 965
way. A tribunal is a body or authority which is vested, with judicial power to adjudicate on
question' of law or fact, affecting the rights of citizens in a judicial manner. Such authorities or
bodies must have been constituted by the state and vested with judicial as distinguished from
administrative or executive functions.

Article 136 does not confer a right of appeal as such but a discretionary power on the Supreme
Court to grant special leave to appeal. The Supreme Court has held that even in cases where
special leave is granted, the discretionary power continues to remain with the court even at the
stage when the appeal comes up for hearing. Generally, the court does not, grant special leave to
appeal, unless it is shown that exceptional and special circumstance exist, that substantial and
grave injustice has been done and the case in question presents sufficient gravity to warrant a
review of the decision appealed against. It confers a very wide discretion on the Supreme Court
to be exercised for satisfying the demands of justice.

In Bharat Coking Coal Co. v. Karam Chand Thapar 6, the Supreme Court held, Article 136 has
been engrafted by the founding fathers of the Constitution for the purpose of avoiding mischief
of injustice on the wrong assumption of law. The justice delivery system of the country prompts
this court to interfere under Article 136 of the Constitution when the need of the society stands
established and the judgment, if left outstanding, would not only create prejudice but would have
otherwise adverse effect upon the society.


Article 226 clause (1) empowers the High Courts in the States or Union Territories to issue to

6 Bharat Coking Coal Co. v. Karam Chand Thapar 2003(1)SCC 6.

any person or authority including any Government within their territories, directions, orders or
writs for the enforcement of the fundamental rights or for any other purpose.

The power of judicial review of the High Court under Article 226 is wider than that of the
Supreme Court under Article 32 of the Constitution. The expression 'for any other purpose'
enables the High Court to exercise their power of judicial review for the enforcement of ordinary
legal rights which are not fundamental rights. High Court can issue a writ to a person or authority
not only when it is within the territorial jurisdiction of the court but also when it is outside its
jurisdiction provided the cause of action wholly or partly arises within its territorial jurisdiction.
This power of the High Court under Article 226 is concurrent with the power of the Supreme
Court under Article 32 of the Constitution.

Article 227 clause (1) confers the power of 'superintendence over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction. However, this power does
not extend, like Article 136, over any court or tribunal constituted under any law relating to the
Armed Forces.

This power is in addition to the power conferred upon the High Court under Article 226 which is
of a judicial nature. Is this power of superintendence, administrative or judicial? Under the
Government of India Act, 1935 this power extended only to the courts and was of administrative
nature only. Under the Constitution it is extended to the tribunals and section 224 clause (2) of
the Government Of India Act, 1935, which made it of administrative nature, was not retained in
Article 227. Therefore, the power of superintendence under Article 227 is of an administrative as
well as judicial nature. The parameters of this power are well settled and it is exercised on the
same grounds as the power of judicial review.

They are as follows:

(i) It can be exercised even in those cases where no appeal or revision lies to the High Court;

(ii) The power should not ordinarily be exercised if any other remedy is available even if it
involved inconvenience or delay.
(iii) The power is available where there is want or excess of jurisdiction, failure to exercise
jurisdiction violation of principles of natural justice and error of law apparent on the face of the

(iv) In the exercise of this power the High Court does not act as appellate tribunal.

(v) It does not invest the High Court with an unlimited prerogative to interfere in cases where
wrong decisions have been arrived at by judicial or quasi-judicial tribunals on questions of law
or fact. There has to be grave miscarriage of justice or flagrant violation of law calling for

Tribunal under Article 227 has the same meaning as under Article 136 for the Supreme Court. In
Surya Dev Rai v. Ram Chander Rai7, the Supreme Court held that the purpose underlying vesting
of this jurisdiction under Article 227 is paving the path of justice and removing its obstacles

Thus a very wide discretionary power is provided to the High Courts under articles 226 and 227.
However, it must be exercised according to the principles of judicial review.

Cases on Judicial Review In India

7 Surya Dev Rai v. Ram Chander Rai A.I.R 2003 SC 3044; Also see Shiv Shakti Cooperative Housing
Society, Nagpur v. M.S Swaraj Developers A.I.R 2003 SC 2434
The basic function of the courts is to adjudicate disputed between individuals and the
state, between the states and the union and while so adjudicating, the courts may be
required to interpret the provisions of the constitution and the laws, and the interpretation
given by the Supreme Court becomes the law honoured by all courts of the land. There is no
appeal against the judgement of the Supreme Court.

In Shankari Prasad vs. Union of India 8 the first Amendment Act of 1951 was
challenged before the Supreme Court on the ground that the said Act abridged the right to
property and that it could not be done as there was a restriction on the amendment of
Fundamental Rights under Article 13 (2).

The Supreme Court rejected the contention and unanimously held. "The terms of Article 368 are
perfectly general and empower parliament to amend the constitution without any
exception whatever. In the context of Article 13 law must be taken to mean rules or regulations
made in exercise of ordinary legislative power and amendments to the constitution made in
exercise of constituent power, with the result that Article 13 (2) does not affect amendments
made under Article 368."

In Sajan Singh's case9, the corupetence of parliament to enact 17th amendment was challenged
before the constitution. Bench comprising of five judges on the ground that it violated the
Fundamental Rights under Article 31 (A).

Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when article 368
confers on parliament the right to amend the constitution the power in question can be exercised
over all the provisions of the constitution, it would be unreason about to hold that the word law'
in article 13 (2) takes in amendment Acts passed under article 368.

Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and
could not be struck down by the application of article 13 (2).

The historic case of Golak Nath vs. The state of Punjab 10 was heard by a special bench of 11
judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged.
8 AIR 1951 SC 458

9 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845

10 AIR 1967 SC 1643

The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared
that parliament under article 368 has no power to take away or abridge the Fundamental
Rights contained in chapter II of the constitution the court observed.

(1) Article 368 only provides a procedure to be followed regarding amendment of the

(2) Article 368 does not contain the actual power to amend the constitution.

(3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of
the union list.

(4) The expression 'law' as defined in Article 13 (3) includes not only the law made by
the parliament in exercise of its ordinary legislative power but also an amendment of the
constitution made in exercise of its constitution power.

(5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be
void under Article 13 (2) of it takes away or abridges the rights conferred by part III of
the constitution.

(6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth
Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void
under Article 13 (2) of the constitution.

(7) Parliament will have no power from the days of the decision to amend any of the provisions
of part III of the constitution so as to take away or abridge the Fundamental Rights
enshrined there in.

The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the
Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of law to
change or destroy the entire fabric of the constitution through the instrumentality of parliament's
amending power.
In Minerva Mills case11 the Supreme Court by a majority decision has trunk down section 4 of
the 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24,
19 and 31 of part III of the constitution, on the ground that part III and part IV of the constitution
are equally important and absolute primacy of one over the other is not permissible as that would
disturb the harmony of the constitution.

The Supreme Court was convinced that anything that destroys the balance between the two part
will Ipso Facto destroy an essential element of the basic structure of our constitution.

Extent of Judicial Review In India

From 1950 to 1975, the Indian Supreme Court ruled that more than one hundred federal and state
case Laws, constituted unconstitutional. The judiciary in the constitutional system, made a very
important position. Indian Supreme court on a series of allegations of violation of basic human
rights under the Constitution of India conducted a judicial review of cases. The Supreme Court's
position is that any attempt to amend the Constitution related to impact of civil rights legislation
or regulations are subject to subject to judicial review. India has also restricted judicial review of
executive and legislative powers to play a role. Judicial review of legislation from the early
review extends to all acts of government or administration. It can be said that in
addition to specific case, the Court exercise their restraint of judicial power, judicial
review has almost no borders.

Judicial review of political issues: In the early practice of judicial review, Supreme
Court of India was that if the case involved political issues, does not apply to judicial
review. But then this position has changed slowly, in Keshavananda Bharathi case, the Court
noted that "involves tampering with the Constitution judicial review of cases may involve
political issues, but only the court has the power to judge cases. interpret the Constitution's
powers should be attributed to the State jurisdiction ".

The Court's position in the later case in a series of further specific, as in S. R. Bommai case, the
court decision that "The state Governor, the President formed the basis of his political views
may be based on judgments, it is not appropriate for judicial review. If Justice will fall
into a complex political disputes, which the court should be avoided. So , the court can not forbid
the President to exercise the powers conferred on him by the Constitution, unless the evil abuse

11 (1980) 3 SCC 625

of power, but the court also noted that" judicial review although it can not review the President's
subjective judgments, but the president may review the basis on which to make decisions.

From these precedents it can be seen that the Indian courts in dealing with the basic legal and
political position of the judiciary in finding significant matters involving politics should be
careful to play its role of judicial review, and some restraint in handling cases, to avoid use of
judicial jeopardize the constitutional review powers the legislative and executive powers, but the
judiciary but also to minimize the abuse of presidential power judicial review and
supervision should be ultra vires the right balance.

The basic principles of judicial review of constitutional status: In 1973, the Supreme Court in
the landmark Keshavananda Bharathi v. State of Kerala 12 case presented the basic principles
of judicial review. Legislature can amend the constitution, but cannot change the basic principles
of the Constitution. If the violation of basic constitutional principles, constitutes unconstitutional
is generally believed that the basic principles of the Constitution of India has the
following five basic points:

the supremacy of the Constitution, republican and democratic form of government, secular
constitution, legislative, administrative and judicial separation of powers and federalism. These
basic principles are throughout the Preamble to the Constitution of India and the entire
framework of the Constitution. The Constitution is built on the basic principles citizens
on the basis of freedom and dignity, the Indian Constitution, the Law may not deprive citizens
of any form of freedom and dignity. The basic principle of the Constitution is only a matter of
principle, not exhaustive revision of the constitution limits the power of all cases.

In the subsequent series of cases, the court of judicial review is further recognized as one
of the basic principles of the Constitution. The Court in some cases held that judicial
review is a constitutional fundamental and essential feature. If the judicial review is
absolutely deprived of the Constitution had no vitality. The Court further pointed out that if
the Supreme Court ruled out legislation enjoy the constitutional right to judicial review, and
with no other alternative mechanisms for judicial review is in violation of the basic
principles of the Constitution, the Congress, the legislation goes beyond the scope of
legislative power.

12 AIR 1973 SC 1461

In 1997 in, L. Chaiadra Kumar V Union of India 13 case, the Constitutional Court more
clearly stated that "the Constitution and Articles 32 &226 were granted to the Supreme
Court and High Court judicial review of existing legislation is a constitutional right to an
integral and essential element judicial review itself constitutes one of the basic principles of
the Constitution. Indian Supreme Court precedent established by judicial review the basic
principles of the Constitution, this Constitution and the rule of law in India's role can not
be ignored, for enhancing the legislative and executive powers of judicial checks and balances
play an important role. But given the absolute power of judicial review, in fact distorted the
balance of power theory, to some extent, led to the expansion of judicial review and abuse of

Judicial activism the expansion of judicial review: After 80 years of the 20th century, public
demand for government administration in strict accordance with the Constitution and
laws, hoping to promote administrative reform through judicial growing louder and louder,
the judiciary is also required in response to the public judicial activism began to take position. In
the subsequent case of Menaka Gandhi14, the Supreme Court to promote the implementation of
the Constitution in terms of protection of citizens basic human rights, and to seek India's laws in
line with the global trend of legal protection of basic human rights. The court of human
rights protection thanks to a series of successful litigation procedural law reform, as introduced
in the procedural law of social activities on litigation, public interest litigation and other new
design of the system, so that vulnerable groups in society can more easily enter the judicial

Indian court has also sought, through judicial interpretation of constitutional provisions to
achieve its goals. 80 years in the 20th century and early 90s, the Indian court would
change its traditional law enforcement agencies as a simple nature of many of its
political decision to the Indian society, the enormous social and economic change. While
judicial activism has played an active court supervision of administrative and legislative
powers, the role of the effective exercise of judicial power, to some extent contributed to the
improvement of the rule of law in India.

13 (1997) 3 SCC 261

14 AIR 1978 SC 597

But on the other hand, the Supreme Court's new role of judicial activism also has been
criticized, and many Critics accused him of breach of the principle of separation of
powers, especially the Supreme Court administrative action policies and guidelines established
by the widely criticized, is considered by more powers of the executive and legislative areas. As
a result, limit the power of judicial review has become India's new task of constitutional law.

The Supreme Court of India is no doubt the finale interpreter of the constitution as we have
studied and analysed from many cases. It is playing a role of protector and working at its best.
With its intellect and time our supreme court has achieved a lot more than bare rigid law
interpreter made by the legislation. Now with its power of judicial review and judicial activism
this court is doing a lot for the social welfare. It has become the last resort for the weak sections
of the society.

But on the other hand this law making power in the hands of the judiciary is posing a threat to
the state constitutionalism. India is following constitution and its spirit is to establish
constitutionalism in the country. But this power of the Supreme Court can lead to the
country where judiciary will be the head. It is synonymous of creating a third chamber of
legislation, which is against the principle of constitutionalism i.e. idea of limited government
where a organ of the government can be checked on the ground of being arbitrary.

So in the end I would like to say that this power requires a sense of causation while
exercising it. Court should not act arbitrarily. great powers bring great responsibilities, this
quotation of some scholar can guide the court while using its powers.
1. All India Reporters
2. Supreme Court Cases
3. Journal Of Law & Policy, Vol6, 2001,
4. Upender Baxi, Taking Suffering Seriously: Social Action Litigation In The Supreme
Court Of India
5. Madhav Godbole, The Judiciary And Governance In India, Rupa.Co., New Delhi,
India, 2009.
6. Gurram Ramchandra Rao, Judicial Review In India, Http://Vlex.In/Vid/Judicial-
Review-India-29344398, September 23, 2010.
7. S.P Sathe, Judicial Review In India: Limits And Policy, Ohio State Law Journal,
Vol35, 1974
8. Prof. M.P.Jain, INDIAN CONTITUTIONAL LAW, Fifth edition reprint 2009,LexisNexis
Butterworths Wadhwa, Butterworths Wadhwa, Nagpur
10. J.N.Pandey, THE CONSTITUTIONAL LAW OF INDIA, 45th edition, 2008, Central Law
11. Basu, Durga Das, Administrative Law, 5th Ed., Kamal Law House, Calcutta, 1998.
12. Jain, M.P. and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary
on the Subject containing case-law reference (Indian & Foreign), 6th Ed., Wadhwa and
Company Nagpur, New Delhi, 2007.
13. Rai, Kailash, Administrative Law, Allahabad Law Agency, Haryana, 2006.
14. Takwani, C.K., Lectures on Administrative Law, Eastern Book Company, Lucknow,
15. Wade, Administrative Law, (1994),