ADMINISTRATIVE LAW

Judicial Review: Meaning and Scope

Submitted by

Mehak Nayak

Semester: IV, Programme: BBA LLB, Division: B, PRN: 17010224120

Of Symbiosis Law School, NOIDA

Symbiosis International (Deemed to be University), PUNE

In

August, 2019

Under the guidance of

Ms. Ipsita Ray

Course In Charge, Administrative Law

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 CERTIFICATE

The project entitled Judicial Review: Meaning and Scope submitted to the Symbiosis
Law School, NOIDA for Administrative Law as part of Internal assessment is based
on my original work carried out under the guidance of Ms. Ipsita Ray.

The research work has not been submitted elsewhere for award of any degree. The
material borrowed from other sources and incorporated in the thesis has been duly
acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism,
if any, detected later on.

Signature of the candidate:

Date: 9th August, 2019

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 ACKNOWLEDGEMENT

I would like to sincerely and profusely thank my Administrative Law professor Ms.
Ipsita Ray for her constant guidance and support in completing my research project.

I would like to acknowledge my friends as well, who helped me with the material at
hand and supported me throughout the fabrication of the project.

I would also like to extend my gratitude to the library faculty for the library
impeccably aided me in my research, by providing me with access to relevant books
and online legal database.

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 INDEX

INTRODUCTION ........................................................................................... 5

INDIAN BACKGROUND .............................................................................. 6

LITERATURE REVIEW............................................................................... 8

SCOPE OF JUDICIAL REVIEW ................................................................................... 8

JUDICIAL REVIEW ...................................................................................................... 8

INDIAN JUDICIAL REVEW IN ENGLAND ............................................................... 8

RESEARCH QUESTIONS ............................................................................ 9

INDIAN JUDICIAL REVIEW ...................................................................... 9

INDIA VIS-A-VIS ENGLAND .................................................................... 10

GLOBAL POINT OF VIEW ....................................................................... 11

CONCLUSION.............................................................................................. 12

BIBLIOGRAPHY ......................................................................................... 14

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 JUDICIAL REVIEW: MEANING AND SCOPE

Introduction

Judicial review is a process under which executive or legislative actions are subject to review by
the judiciary. A court with authority for judicial review may invalidate laws and governmental
actions that are incompatible with a higher authority: an executive decision may be invalidated for
being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial
review is one of the checks and balances in the separation of powers: the power of the judiciary to
supervise the legislative and executive branches when the latter exceed their authority. The doctrine
varies between jurisdictions, so the procedure and scope of judicial review may differ between and
within countries.

Judicial review can be understood in the context of two distinct—but parallel—legal systems, civil
law and common law, and also by two distinct theories of democracy regarding the manner in
which government should be organized with respect to the principles and doctrines of legislative
supremacy and the separation of powers.

First, two distinct legal systems, civil law and common law, have different views about judicial
review. Common-law judges are seen as sources of law, capable of creating new legal principles,
and also capable of rejecting legal principles that are no longer valid. In the civil-law tradition,
judges are seen as those who apply the law, with no power to create (or destroy) legal principles.

Secondly, the idea of separation of powers is another theory about how a democratic society's
government should be organized. In contrast to legislative supremacy, the idea of separation of
powers was first introduced by Montesquieu1; it was later institutionalized in the United States by
the Supreme Court ruling in Marbury v. Madison 2under the court of John Marshall. Separation of
powers is based on the idea that no branch of government should be able to exert power over any
other branch without due process of law; each branch of government should have a check on the
powers of the other branches of government, thus creating a regulative balance among all branches

1
Baron De. Nugent Montesquieu, Spirit Of The Laws (Book On Demand Ltd) (2015)
2
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

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of government. The key to this idea is checks and balances. In the United States, judicial review is
considered a key check on the powers of the other two branches of government by the judiciary.

Differences in organizing "democratic" societies led to different views regarding judicial review,
with societies based on common law and those stressing a separation of powers being the most
likely to utilize judicial review. Nevertheless, many countries whose legal systems are based on the
idea of legislative supremacy have learned the possible dangers and limitations of entrusting power
exclusively to the legislative branch of government. Many countries with civil-law systems have
adopted a form of judicial review to stem the tyranny of the majority.

Most modern legal systems allow the courts to review administrative acts.

Indian Background

In India, a judicial review is a review of government decisions done by the Supreme Court of India.
Judicial review is not specifically mentioned in the Constitution of India; the concept is borrowed
from the American Constitution. Related articles for the judicial review For Supreme court Article
32(Right to Constitutional Remedy) and Article 136(Special leave to appeal by the Supreme Court).
For High Court Article 226(Power of High Courts to issue certain writs.) and article 227(Power of
superintendence over all high Court by the high Court).

In the case of S. R. Bommai v. Union of India 3 it was contended that there is difference in the
nature and scope of the power of judicial review in the administrative law and the constitutional
law. While in the field of administrative law, the Court's power extends to legal control of public
authorities in exercise of their statutory power and therefore not only to preventing excess and
abuse of power but also to irregular exercise of power, the scope of judicial review in the
constitutional law extends only to preventing actions which are unconstitutional or ultra vires the
Constitution. The areas where the judicial power, therefore can operate are limited and pertain to
the domain where the actions of the Executive or the legislation enacted infringe the scheme of the
division of power between the Executive, the Legislature and the judiciary or the distribution of
powers between the States and the Center. Where, there is a Bill of Rights as under our

3
S.R. Bommai v. Union of India (1994) 2 SCR 644

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Constitution, the areas also cover the infringements of the fundamental rights. The judicial power
has no scope in constitutional law beyond examining the said infringements. He also contended that
likewise, the doctrine of proportionality or unreasonableness has no play in constitutional law and
the executive action and legislation cannot be examined and interfered with on the anvil of the said
doctrine.

As has been stated by Lord Brightman in Chief Constable of the North Wales Police v. Evans,4
"judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in
which the decision was made". In other words, judicial review is concerned with reviewing not the
merits of the decision but the decision-making process itself.

To put in simple Indian context, judicial review is a type of court proceeding in which a judge
reviews the lawfulness of a decision or action made by a public body. In other words, judicial
reviews are a challenge to the way in which a decision has been made, rather than the rights and
wrongs of the conclusion reached.

It is not really concerned with the conclusions of that process and whether those were ‘right’, as
long as the right procedures have been followed. The court will not substitute what it thinks is the
‘correct’ decision. This may mean that the public body will be able to make the same decision
again, so long as it does so in a lawful way. If you want to argue that a decision was incorrect,
judicial review may not be best for you. There are alternative remedies, such as appealing against
the decision to a higher court.

The following are a few examples of the types of decision which may fall within the range of
judicial review include:

 Decisions of local authorities in the exercise of their duties to provide various welfare
benefits and special education for children in need of such education;
 Certain decisions of the immigration authorities;
 Decisions of regulatory bodies;
 Decisions relating to prisoner’s rights.

4
North Wales Police v. Evans (1982) 3 All ER 141

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Literature Review

The Scope of Judicial Review

https://saylordotorg.github.io/text_law-for-entrepreneurs/s08-05-the-scope-of-judicial-review.html

After exhausting administrative remedies, there are numerous grounds for seeking judicial review of an
agency’s order or of a final rule. While courts defer to agencies to some degree, an agency must follow its
own rules, comply with the Administrative Procedure Act, act within the scope of its delegated authority,
avoid acting in an arbitrary manner, and make final rules that are supported by substantial evidence.

Judicial Review
https://www.pinsentmasons.com/out-law/guides/judicial-review

Judicial review is an audit of the legality of decision-making by public bodies. 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. The
process of bringing a claim is streamlined, and 'interested parties', who are neither applicants nor defendants,
are often included in the proceedings when they have an interest in the outcome.

Judicial Review in England

https://www.lawteacher.net/free-law-essays/constitutional-law/judicial-review-in-united-kingdom-law-
essays.php

Thus from an analysis of the exposition of Parliamentary Sovereignty in this article, one can cull
out two components. Firstly, only Parliament has the authority to enact or repeal any legislation and
secondly, no one (not even the Courts) has an authority to question the same or to set it aside. Also
it is not just the scholars or the Parliament that believes in this doctrine, but the judiciary also abides
by the principle and what the same entails. The views of the Judiciary can be recounted by looking
into various judgments and they have made it clear time and again, that the Courts are not
concerned with the making of the Acts of Parliament; their task is to merely apply the legislation
that has been passed by both the Houses and has received Royal Assent. This approach has been

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crystallized with numerous decisions and the same was confirmed in British Railways Board v.
Pickin.5

Research Questions

1. What is the extent to which the English Judicial Review system mirrors
the Indian Judicial Review system?
2. What are the limits placed on judicial review from a global perspective?

Indian Judicial Review

With the renouncement of the theory of laissez faire, there has been a general trend of revival to the
old police state. This phenomenon has eventually culminated in the welfare state, resulting in a
notable shift in idea of governance. This shift is marked by an increase in governmental functions
and greater discretionary powers to the Executive, the exercise of which are left to their own
subjective satisfaction in the absence of statutory guidelines or conditions. Coupled with the vast
array of functions performed by the Executive, viz. legislative and judicial functions through the
realm of delegated legislation and quasi-judicial bodies, this has resulted in an immense
concentration of power. This imbalance of sorts gives rise to a need to check the unbridled
power of the Executive, in addition to reviewing their actions. The most effective means to this end
is judicial review.

Judicial review is the court's power to review the actions of other branches or levels of government,
especially the court's power to invalidate legislative and executive actions as being
unconstitutional. Its underlying objective is to ensure that executive authorities do not abuse their
power, and reach decisions that are correct in the eyes of law; simultaneously, it also strives to
ensure just and fair treatment to every individual. In short, it aims to protect individuals from abuse
or misuse of power by any branch of the State, particularly the executive.

5
British Railway Boad v. Pickin (1974) AC 765

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As expressed by the Supreme Court in Tata Cellular v. Union of India,
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“the judicial power of review is exercised to rein in any unbridled executive functioning. The
restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other
covers the scope of the court's ability to quash an administrative discretion on its own merits. These
restraints bear the hallmarks of judicial control over administrative action.” In India, it is an
integral part of the Constitutional system, and in its absence, “the rule of law would become a
teasing illusion, and a promise of unreality.” Such is its significance that it has been declared as an
integral component of the basic structure of our Constitution.

India vis-a-vis England

As In England, judicial review is considered to be the core of administrative law, its purpose being
to ‘enforce the legal limits of public and in particular, executive power.’ Given that England does
not have a written Constitution, the scope of review is restricted to judge-made law and
Parliamentary statutes. Owing to constant developments made by Courts, this doctrine has assumed
magnanimous proportions over the years.

The power of judicial review has been constitutionally guaranteed in India. Articles 32
and 226 of the Indian Constitution empower individuals to approach the Supreme Court and High
Courts respectively for enforcement of Fundamental Rights guaranteed in Part-III of the
Constitution. Although the very existence of this power is beyond dispute, its content, reach and
extent remain ambiguous. In the absence of specifications, Courts in India have defined its ambit by
following principles laid down by superior courts of other common law countries.

Among others, the decision of the House of Lords in Wednesbury remains at the
centre of judicial review in India. Based on the cardinal principles evolved in this case, courts in
India have evolved the jurisprudence around judicial review, declaring it to be “the touchstone and
essence of the rule of law.” It has been used to supplement vital provisions of the Constitution, such
as Article 14 insofar as it was held in E.P Royappa case7 that arbitrary action by an administrative
authority is one which is irrational and unreasonable. The potency of this case is such that the

6
Cellular v. Union of India (1994) SCC (6) 651
7
E. P. Royappa vs State Of Tamil Nadu & Anr (1974) SCR 2 348

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Supreme Court has declared that the concept of reasonableness and non-arbitrariness
pervades the entire scheme of the Constitution, and is a golden thread which runs through the
whole of the fabric of the Constitution.

In addition to supplementing Constitutional provisions, English principles have also enabled Courts
to keep administrative authorities within their boundaries in the absence of an express violation of a
Part-III right. For instance, in Sheonath Singh case, 8 relying on the test of reasonability, the
Supreme Court opined that “the Income Tax Officer would be acting without jurisdiction if the
reason for his belief that the conditions are satisfied does not exist or is not material or relevant to
the belief required by the Section. If such a condition precedent is not satisfied so as to make out a
prima facie case the order will be quashed.” Again, in Coimbatore District Central Cooperative
Bank case, the Supreme Court held: “If an action taken by any authority is contrary to law,
improper, unreasonable, irrational or otherwise unreasonable, a Court of Law can interfere with
such action by exercising power of judicial review.” The evolution of this jurisprudence has been
such that Courts have recognized that if a statute nowhere contravenes any fundamental right, and if
there is still a need to check executive discretion, the principle of proportionality is the best
available option.

Global Point of View

The power of judicial review is exercised differently in different political systems. In countries like
the United Kingdom where the constitution is largely unwritten and unitary in character and
parliament is sovereign, the courts can declare an act of parliament to be incompatible with the
constitution, but they cannot invalidate a law for being inconsistent with the constitution. In other
words, the judiciary can only interpret the constitution.

The situation is different in countries where a written and federal constitution limits the powers of
parliament. For instance, in the USA, the Supreme Court can strike down legislation enacted by
Congress if it finds the same to be incompatible with the constitution. In Germany, the
Constitutional Court is empowered to shoot down not only ordinary laws but also constitutional
amendments for being inconsistent with the fundamental character of the constitution.

8
Sheonath Singh v. Commissioner of Income Tax, AIR 1958 Cal 606

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In India, there has been a long tussle between parliament and the Supreme Court on the scope and
limits of judicial review. The twenty-fourth amendment to the constitution passed in 1971
authorised parliament to amend any provision of the constitution. However, the Supreme Court
subsequently declared that while parliament was competent to amend any provision of the
constitution, any amendment had to conform to the basic framework of the constitution. This led the
government of Prime Minister Indira Gandhi to introduce the forty-second amendment to the
constitution during the proclamation of emergency, which stripped the apex court of the power of
reviewing an amendment to the constitution. However, the forty-third and forty-fourth amendments
undid the provisions of the forty-second amendment regarding powers of the Supreme Court to
judge the validity of constitutional amendments.

Though the courts have the power of judicial review, the same cannot be exercised in an arbitrary
fashion. If the law-making power of parliament is not unlimited, the courts' power to review the
laws passed by parliament is also not unlimited. Like other organs of the state, the judiciary derives
its powers from the constitution and the judges are as much under the constitution as anyone else.
They can interpret and invalidate laws but they cannot themselves assume the law making function;
nor can they confer that function on any person or institution other than the federal or provincial
legislatures. Nor can the courts make constitutional what is manifestly unconstitutional. Sovereignty
is located neither in parliament nor in the judiciary but in the constitution itself.

Conclusion

The Constitution of India is the supreme law of the land. The Supreme Court of India has the
supreme responsibility of interpreting and protecting it. It also acts as the guardian-protector of the
Fundamental Rights of the people. For this purpose, the Supreme Court exercises the power of
determining the constitutional validity of all laws. It has the power to reject any law or any of its
part which is found to be unconstitutional. This power of the Supreme Court is called the Judicial
Review power. State High Courts also exercise this power but their judgements can be rejected or
modified or upheld by the Supreme Court.

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Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any
such law or order of the legislature and executive void, if it finds them in conflict the Constitution
of India. The Constitution of India is the supreme law of the land.

The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as
the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of
the Constitution, the judiciary in India has come to control by judicial review every aspect of
governmental and public functions.

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Bibliography

Online Database

 SCC Online

 Casemine

 Manupatra

 Merriam-Webster

Journals

 Baron De. Nugent Montesquieu, Spirit Of The Laws (Book On Demand Ltd) (2015)

 Veena Srirangam, A Difference in Kind – Proportionality and Wednesbury, 4 IALS Student

Law Review (2016)

Books

 V. N Shukla, The Constitution of India (Eastern Book Co.) (1950)

 P. M Bakshi, The constitution of India (Universal Law Publishing Co. Ltd.) (2006)

 Sri Ram Sharma, The Supreme Court and judicial review in India (Institute of Public

Administration) (1953)

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