Page |1

CONCEPT OF JUDICIAL REVIEW

INTRODUCTION

Judicial review is the power of the courts to determine the constitutionality of legislative act.
It determines the ultravires or intravires of the Act challenged before it.

In the words of Smith and Zurcher, “The examination or review by the courts in cases
actually before them, of legislative statutes and executive or administrative acts to determine
whether or not they are prohibited by a written constitution or are in excess of powers granted
by it and if so, to declare them void and of no effect.”

Judicial review is a great weapon in the hands of judges. It comprises the power of a court to
hold unconstitutional and unenforceable any law or order based upon such law or any other
action by a public authority which is inconsistent or in conflict with the basic law of the land.
Judicial review is not an expression exclusively used in our constitution. Literally, it means
the revision of the decree or sentence of an inferior court by a superior court. The concept of
judicial review has its foundation on the doctrine that the constitution is the supreme law.
 Page |2

In legal parlance, judicial review is a legal activation of people‘s life. In Parduman Singh v.
State of Punjab,1 the court held that Review means a judicial re-examination of the case in
certain specified and prescribed circumstances.

Broadly speaking, judicial review in India deals with three aspects:

(i) judicial review of legislative action;

(ii) judicial review of judicial decision; and
(iii) Judicial review of administrative action.

ORIGIN OF THE DOCTRINE OF JUDICIAL REVIEW

The doctrine of judicial review has been originated and developed by the American Supreme
Court, although there is no express provision in the American Constitution for the judicial
review. In Marbury v. Madison,2 the Supreme Court made it clear that it had the power of
judicial review.

Chief Justice George Marshall said, Certainly all those who have framed the written
Constitution contemplate them as forming the fundamental and paramount law of the nations,
and consequently, the theory of every such Government must be that an act of the legislature,
repugnant to the Constitution is void´.

There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the
Constitution and the Acts passed by the legislature, the Courts follow the Constitution and
declare the acts to be unconstitutional and, therefore, void. The Courts declare void the acts
of the legislature and the executive, if they are found in violation of the provisions of the
Constitution. Judicial review is not mentioned in the U.S. Constitution, but most
constitutional experts claim that it is implied in Articles III and VI of the document. Article
III says that the federal judiciary has power to make judgments in all cases pertaining to the
Constitution, statutes, and treaties of the United States. Article VI implies that the judicial

1
Thenius Roux, The Politico- Legal Dynamics of Judicial Review: A Comparative Analysis, Cambridge University
Press at pg.- 12- 13.
2
5 U.S. (1 Cranch) 137 (1803)
 Page |3

power of the federal courts of law must be used to protect and defend the supreme authority
of the Constitution against acts in government that violate or contradict it.

Judicial review is denoted by the writ system which functions in India under Arts. 32 and 226
of the Constitution. Judicial control, on the other hand, is a broader term. It denotes a
much broader concept and includes judicial review within itself. Judicial control comprises
of all methods through which a person can seek relief against the Administration through the
medium of the courts, such as, appeal, writs, declaration, injunction, damages statutory
remedies against the Administration.

scope of judicial
review in india

rule on questions of
protect
ensure fairness in legislative
constitutionality of
administrative action competence between
fundamental rights
centre and state

EVOLUTION OF JUDICIAL REVIEW IN INDIA

 1858: Government of India Act of 1858 imposed some restrictions on the powers of
the Governor-General in Council in evading laws, but there was no provision of
Judicial Review. The Court had such power only by implication.
 1861: The Indian Councils Act of 1861 provided that the measures passed by the
Governor-General legislative council were not to become valid unless the assent of
the Governor-General was received. It also contained constitutional restrictions
against the making of any law or regulation which might have the effect of repealing
or in any way affecting the provisions of the Indian Council Act. The provision to
section 22 of the Indian Council Act 1861 laid down constitutional restrictions in
framing laws which read: “provided always that the said Governor-General council
 Page |4

shall not have the power of making any law or regulations which shall repeal or in any
way effect any of the provisions of this act ...”
 1877: The case of Emperor V. Burah Book Singh3 ILR3 Cal. 63 (1877) was decided
in Calcutta High Court in which it was held that aggrieved party had right to
challenge the constitutionality of a legislative Act enacted by the Governor-General
Council in excess of the power given to him by the Imperial Parliament.
 1913: Lord Haldane in 1918 in a Privy Council case laid down the Government of
India cannot by legislation take away the right of the Indian subject conferred by the
Parliament Act i.e. Government of India Act of 1858.
 1935: Government of India Act of 1935 which came into operation on December 6,
1937 embodied a federal constitution. It was implicitly empowered to pronounce
judicially upon the validity of the statutes, though there was no specific provision for
the same.

The Federal Court was introduced by the Government of India Act of 1935 to function as an
arbiter in the Central and State relationship and to scrutinize the violation of the constitutional
directions regarding the distribution of the powers on the introduction of federalism in India.
It was highly essential to have an independent and impartial superior court to maintain
balance between the Centre and the provinces. The power of Judicial Review were not
specifically provided in the Constitution, but the Constitution being federal, the federal court
was entrusted impliedly with the function of interpreting the Constitution and to determine
the constitutionality of legislative Acts. A large number of cases cropped up involving the
question of the validity of the legislative Acts were one of the main topics of decision before
the Federal Court and the Privy Council.

Thus, though there was no specific provision for Judicial Review in the Government of India
Act of 1935 the constitutional problems arising before the court necessitated the adoption of
Judicial Review of legislature Act in a wider perspective.

 1950: The Republican Constitution of India, adopted in 1950, which has specifically
provided for, Judicial Review regarding infringement of fundamental rights and the
Indian courts have powers of Judicial Review regarding constitutional violations of
the distribution and separation of powers and other constitutional restrictions. Art. 13,
32 and 226 expressly provide for and envisage Judicial Review. Under the

3
ILR3 Cal. 63 (1877)
 Page |5

Constitution of India, 1950, the scope of Judicial Review has been extremely
widened.

OBJECT OF JUDICIAL REVIEW

The underlying object of judicial review is to ensure that the authority does not abuse its
power and the individual receives just and fair treatment and not to ensure that the authority
reaches a conclusion which is correct in the eye of law.

As observed by the Supreme Court in Minerva Mills Ltd. v. Union of India,4 the
Constitution has created an independent judiciary which is vested with the power of judicial
review to determine the legality of administrative action and the validity of legislation. It is
the solemn duty of the judiciary under the Constitution to keep different organs of the State
within the limits of the power conferred upon them by the Constitution by exercising power
of judicial review as sentinel on the quo vive. Thus, judicial review aims to protect citizens
from abuse or misuse of power by any branch of the state

Judicial Review involves the courts reviewing the lawfulness of an enactment or a decision,
action, or a failure to act in relation to the exercise of a public function. The Court’s
jurisdiction on a claim for judicial review is a supervisory rather than appellate jurisdiction.
Its task is to determine the lawfulness of decisions rather than to re- take those decisions
itself. The origins of the modern judicial review jurisdiction lie in the prerogative writs of
certiorari, prohibition and mandamus.5

In Council of Civil Service Unions v. Minister for the Civil Service,6 Lord Diplock
described the issue of amenability to judicial review in the following terms:

‘for a decision to be susceptible to judicial review the decision- maker must be empowered
by public law to make decisions that, if validly made, will lead to administrative action or
abstention from action by an authority endowed by law with executive powers.’

4
AIR 1980 SC 1789.
5
Jonathan Auburn, Jonathan Moffett, Andrew Sharland; Judicial Review: Principles and Procedure
Pg 19-20.
6
1986 AC 240.
 Page |6

JUDICIAL REVIEW AND THE CONSTITUTION OF INDIA

The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution.
Parliament is not supreme under the Constitution of India. Its powers are limited in a manner
that the power is divided between the centre and the states. Moreover the Supreme Court
enjoys a position which entrusts it with the power of review in the legislative enactments both
of Parliament and the State legislatures. Though there was no specific provision of the
Judicial Review in the Government of India Act, 1935 and the constitutional problems arising
before the court necessitated the adoption of Judicial Review in a wider perspective. Now, the
Constitution of India explicitly establishes the Doctrine of Judicial Review under various
Articles such as 13, 32, 131-136, 143, 226, 227, 245, 246, 372. Judicial Review is thus firmly
rooted in India and has the explicit sanction of the Constitution. The courts in India are thus
under a constitutional duty to interpret the constitution and declare the law as unconstitutional
if found to be contrary to the constitutional spirit. In doing so, the courts act as a ‘sentinel on
the qui vive’

FEATURES OF JUDICIAL REVIEW

 Both the Supreme Court and High Courts exercise the power of Judicial Review
under Articles 32 and 226 respectively. But the final power to determine the
constitutional validity of any law is in the hands of the Supreme Court of India.
 Limitation with respect to judicial review is that laws incorporated in the 9 th Schedule
of the Constitution are not subject to judicial review which consists of 284 Acts.
 When a law is rejected as being unconstitutional it ceases to operate from the date of
judgment. All activities performed on the basis of the law before the date of judgment
declaring it invalid, continue to remain valid. So it is prospective and not
retrospective.

THE SOURCE OF JUDICIAL REVIEW

 Page |7

Unlike in the United States, judicial review in India has been provided expressly in the
constitution. The justifiability of fundamental rights and the source of Judicial Review can be
found under Article 13 which is regarded as a key provision as it gives teeth to the
fundamental rights cannot be infringed by the state either by enacting a law to that effect or
through an administrative action. constitution.

Article 13 (1) of the Constitution of India, says that all laws in force in the territory of India
immediately before the commencement of the Constitution, in so far as they are inconsistent
with the provisions containing the fundamental rights, shall, to the extent of such
inconsistency, be void.

The Article further provides that the State shall not make any law which takes away or
abridges the rights conferred by this Part i.e., part III of the Constitution and any law made in
contravention of this clause shall, to the extent of the contravention, be void.7

Dr. B. R. Ambedkar defended the provisions of judicial review as being absolutely necessary
and rejected the above criticism. According to him, the provisions for judicial review and
particularly for the writ jurisdiction that gave quick relief against the abridgement of
fundamental rights constituted the heart of the Constitution, the very soul of it.

It declares that all pre-constitution laws shall be void to the extent of their inconsistency with
the fundamental rights and expressly provides that the State ‘shall not make any law’ which
takes away or abridges the fundamental rights and a law contravening a fundamental right is,
to the extent of such contravention is void. Essentially, it is crucial provision dealing with the
post-constitution laws and if any such law violates any fundamental right, it becomes void
ab-initio.

The foundation of this power of judicial review has been explained by a nine judge bench of
Supreme Court in S.C. Advocates on Record association v. Union of India.8 The Apex
court has held that the Constitution, which is the fundamental law of the land, is the will of
the people, while a statute is only the creation of the elected representatives of the people. If
therefore, the will of the legislature as declared in a statute, stands in opposition to that of the
people as declared in the Constitution, the will of the people must prevail. Article13 is thus an
express declaratory provision dealing with the power of judicial review which casts a

7
Article 13 of Constitution of India.
8
(2016) 5 SCC 1
 Page |8

constitutional obligation on the judiciary to check constitutional transgressions. The

power is conferred on the constitutional courts, i.e. High Courts and Supreme Court.

Exercising judicial review in the Board of Control for Cricket in India (BCCI) v Cricket
Association of Bihar,9 the Court, speaking through Chief Justice T S Thakur held, that even
though the BCCI was not a “state” under Article 12 of the Constitution, it was amenable to
writ jurisdiction because the “government allows BCCI to exist and discharge public
functions relating to the game of cricket in India.”

Apart from guaranteeing the fundamental rights which are in the nature of political and civil
rights, the Constitution also provides the mechanism for their enforcement. It does so by
making right to constitutional remedies itself a fundamental right. Articles 32 and 226 confer
power of Judicial Review on Supreme Court as well as High Courts respectively to review
the vires of any law or administrative action on the touchstone of fundamental rights.

THE SUPREME COURT AS THE GUARDIAN OF FUNDAMENTAL RIGHTS

The Constitution has assigned to the Supreme Court of India a special role of “the protector
and guarantor of fundamental rights by Art. 32(1)”. Therefore, where the infringement of a
fundamental right has been established, the Supreme Court cannot refuse relief under Art. 32
on the ground.

 That the aggrieved person may have his remedy from some other Court or under the
ordinary law’ or
 That disputed facts have to be investigated or evidence has to be taken before relief
may be given to the petitioner; or
 That the petitioner has not asked for the proper writ applicable to his case. In such a
case the Supreme Court must grant him the proper writ and, if necessary modify it to
suit the exigencies of the case.

9
(2015) 3 SCC 251.
 Page |9

Generally only the person affected may move the Court but the Supreme Court has held that
in social or public interest, any person may move the Court. This is called expansion of the
right to be heard’ it favors public interest litigation.

The Supreme Court can declare any law null and void if it violates the exercise of
fundamental rights. The Court also protects these rights if they are infringed by the action of
the executive. In case of violation of these rights, the affected person may directly approach
the Supreme Court and the Court may issue the writs in the nature of Habeas corpus,
Mandamus, Prohibition, certiorari, Quo warrranto.

Habeas Corpus:

The writ of Habeas Corpus is issue by the Court to affect the release of a person who has not
been detained legally. Under this writ, the Court issue order to the concerned authority or
person to produce the detainee before the Court in order to let the Court known on what
ground the concerned person has been detained and to set him free if there is no legal
justification for imprisonment.

Mandamus:

The writ of mandamus meaning command is addressed to a public authority to command him
to do a duty which he is supposed to do but he has not performed.

Prohibition:

The writ of prohibition is issued by the Supreme Court or High Courts against the lower
Courts to prevent the latter from usurping their designated jurisdiction.

Certiorari:

The writ of certiorari is also issued against inferior Courts by the Supreme Court or the High
Courts, if the lower Courts have violated their designated jurisdiction and pronounced the
decision on the case.

Quo-Warranto:
 P a g e | 10

The writ of quo warranto is issued against a person occupying a public office which he is not
entitled to. The purpose of the writ is to prevent the unlawful occupation of a public office by
persons who are not eligible to that office.

JURISDICTION OF THE SUPREME COURT

To understand the concept of judicial review, it is immensely necessary to discuss the

jurisdiction of Supreme Court. As if there is jurisdiction, only then it can declare any law of
legislation to ultra vires.

The jurisdiction of the Supreme Court can be divided into these categories:

 Original jurisdiction
 Appellate jurisdiction
 Advisory jurisdiction
 Review jurisdiction.10

THE ORIGINAL JURISDICTION

The original jurisdiction of the court extends to the following two types of cases:

I. Dispute relating to the Union and the States –

The following disputes are covered under this jurisdiction:

i. Any dispute between the Government of India and one or more States; or
ii. Disputes between the Government of India and any State or States on the one side and
one or more States on the other side; or
iii. Disputes between two or more States.

The above jurisdiction shall not extend to a dispute arising out of any treaty, agreement, or
covenant or similar document which, having been executed before the commencement of the
Constitution continues in operation after such commencement. But these disputes may be
referred by the President to the Supreme Court for its advisory opinion.

10
Articles 131, 132, 133, 134 A, 136, 143 of Indian Constitution.
 P a g e | 11

THE APPELLATE JURISDICTION

Appellate jurisdiction means the right and jurisdiction of the Supreme Court to entertain
appeals against the decisions of the lower courts, e.g., High Courts11.

The appellate jurisdiction of the Supreme Court can be divided into four main categories:

 Constitutional matters;
 Civil matters;
 Criminal matters;
 Special leave to appeal.

Appeal in constitutional matters

Appeal in constitutional matters Under Article 132 (1) an appeal shall lie to the Supreme
Court from any judgment, decree or final order of a High Court whether in civil, criminal or
other proceedings, if the High Court certifies under Art. 134A that the case involves a
substantial question of law as to the interpretation of this Constitution.

Under Art. 132 (1) three conditions are necessary for the grant of certificate by the High
Court:

 the order appealed must be against a judgment, decree or final order made the High
Court in civil, criminal or other proceedings,
 the case must involve a question of law as to the interpretation of this constitution,
and
 The question involved in such constitutional interpretation must be a question of law.
12

Appeal in Civil cases –

Art 133 provides that an appeal shall lie to the Supreme Court from any judgement, decree or
final order in a civil proceeding of a High Court only if the High Court certifies (under Art.
143-A).

11
State of West Bengal V. Union of India, A.I.R. 1963.

12
Pandey, J.N., Constitutional law of India, Central Law Agency, Allahabad, 1991, pp.319-320-322.
 P a g e | 12

 That the case involve a substantial question of law of general importance; and
 That in the opinion of the High Court the said question needs to be decided by the
Supreme Court.

Appeal in Criminal Cases –

Art. 134 An appeal in some criminal cases can be made to the Supreme Court against the
judgement of the High Court if the High Court –

 has reversed the order of acquittal of an accused person and sentenced him to death;
or
 has withdrawn any case from any subordinate court for trial and sentenced the
accused to death; or
 Certifies that the case is fit for appeal in the Supreme Court.

Appeal by Special Leave

If a case in question does not fall into the above appellate categories, the Supreme Court may,
in its discretion, grant special leave to appeal from any judgement or final order in any
matter/case passed by any Court or tribunal in the territory of India. But this does not apply to
the judgments under a law relating to the Armed forces. The provisions relating to the special
leave petition are given in Art. 136 of the Constitution.13

ADVISORY JURISDICTION

According to Art. 143, the Supreme Court has advisory jurisdiction. On the matters referred
to the court for legal advice, by the President. If at any time, it appears to the President that a
question of law has arisen, which is of such public importance that it is necessary to obtain
the advice of the Supreme Court, he may refer such question to the Court for consideration.
The Supreme Court, may after due consideration; report to the President its opinion on that
matter. The Supreme Court is not bound to give its legal opinion on all matters referred to it
by the President also the President is not bound to abide by such legal opinion.

13
Supra notes 1 at pg. 455.
 P a g e | 13

Hence, the power of Supreme Court is expanded by virtue of Article 141 which states that the
laws which are declared by the Supreme Court shall have a binding effect on all the courts
within the Indian Territory.

POWER OF THE HIGH COURTS UNDER ARTICLE 226

The power of judicial review under the Constitution of India is also given to the High Court’s
under Article 226. However, since the Supreme Court is the final interpreter as according to
Article 141 of the Constitution all judgments of the Supreme Court are binding upon all the
Courts within the territory of India. So, even if a decision is given by a High Court, the
finality of the same lies with the Supreme Court only.

Article 226 states as follows:

Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without

(a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
 P a g e | 14

party in whose favour such order has been made or the counsel of such party, the
High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is
so furnished, whichever is later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards on which the High Court is
open; and if the application is not so disposed of, the interim order shall, on the expiry
of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause ( 2 ) of Article 32

JUDICIAL REVIEW: A FOUNDATION OF RULE OF LAW

The doctrine of Judicial Review is not a revelation to the modern world. In India the concept
of Judicial Review is founded on the rule of law which is the proud heritage of the ancient
Indian culture and traditions. Only in the methods of working of Judicial Review and in its
form of application there have been characteristic changes, but the basic philosophy upon
which the doctrine of Judicial Review hinges is the same.

Judicial Review of India for the first time saw its light in Emperor v. Burah.14 The Calcutta
High Court as well as Privy Council adopted the view that the Indian courts had power of
Judicial Review under certain limitations. This view was further reaffirmed in certain
other case before the Government of India Act of 1935 came into operation. By the
Government of India Act of 1935 Federation was introduced and the experiment in Judicial
Review took a new approach under the Constitution of 1950 Judicial Review assumed an
important role in the Indian democracy. Its working under the present Constitution of India is
a real protection of liberty and freedom of the people. Some Indian writers have observed that
the scope of Judicial Review in India is very limited and the Indian Courts do not enjoy as
wide jurisdiction as do Courts in America. In their opinion it is due to the ‘Due Process’
clause that the America courts have wider scope; in India the scope of Judicial Review is
narrow.

14
(1878) ILR 3 Cal 64
 P a g e | 15

In L. Chandra Kumar v. Union of India,15 stating that the judges of higher court have to
interpret legislation up to this end that the Constitutional values are not to be interrupted. To
achieve this end, the judges have to keep in mind that the equilibrium of control, specified in
the Constitution is not disturbed.

JUDICIAL ACTIVISM

The Indian Apex Court has additional activism in comparison to the Apex Courts of other
countries. The one reason for this is historical situation of India. The United States of
America is the industrial country in the world, which is most advanced. India has evolution
period between modern industrial and primitive agricultural. The Indian Constitution is
contemporary whereas the civilization of India is quite backward. The one significant part of
Indian courts is to assistance quicker its adaptation retro with minimum problems. The higher
judiciary in more active in its performance because, the judges have no tenure and they have
no effect of election. While the politicians have always trust on religion and caste for vote
bank; they may not take robust steps in contrast to outdated performs. The adjudicators of
higher courts are not contingent on religion and caste for vote bank. The judiciary performed
their duties with great care and caution.

15
AIR 1997 SC 1125.
 P a g e | 16

In case of Bhagwan Das v. State (NCT) of Delhi,16 the boys and girl of dissimilar social
group and religion, of same village, got married after falling in love. Both were however
killed by their family member or by their religious organisers. The politicians have not
interfered and have said nothing with regard to the honor killing as they apply politics of vote
bank. The administration and the police authorities have not much interfered due to local
political influence. While the judiciary has not faced election and judges have not needed
organisation of feudal caste and religion. Hence, the Indian Apex Court inspected the case
and specified that the issue is honor killing. The court stated that the case is fit for rarest of
rear doctrine. The perpetrators of the crime must be awarded death sentence. The Supreme
Court directed the administrative officials and the police officials, who failed to prevent the
honor killing; they need to be suspended with immediate effect. The judgment of the court
raised description and exclamation among the religion and caste organisations, while it was
widely commended by open minded segment of Indian society.

The Indian Apex Court has amused you conservative part in the early years. The court had
burst judicial activism in later years through judges’ social philosophy.

Justice Krishna Iyer, Justice Bhagwati, Justice Gajendragadkar and others who were in
apparel of explanation of the Article 21, Article 14 and Article 19 of the Indian Constitution
shaped the mass of lawful standards by judicial verdicts under judicial review.

The Indian judiciary through judicial review has made progressive response to the economic
and social situations dominant in India, where the executives and legislatures have failed to
perform their duties. It is factual; the Constitution has as long as equilibrium of controls to
the courts. Once the judges start serious thinking, they are able to resolve all difficulties in
society through judicial review. They can perform executive and legislative functions under
judicial review. It is no doubt; the judiciary can interfere in several life threatening cases.
However, the fact is that the judiciary has no resources, nor expertise to resolve main
difficulties in the society. The judiciary, within the limited powers has encroachment through
judicial review in the area of executive or legislature in favour of people that created robust
reaction by the politicians and others.

16
2011) 2 SCC 36
 P a g e | 17

In case of Divisional Manager, Aravali Golf Course v. Chander Haas,17 the Supreme
Court of India has provoked that the judiciary should not be made to attempt to run the
government, the court must see their limitations. The Supreme Court suggested that the
judges should not perform like monarch. They should have humility and modesty in their
work of judicial review.

The Indian Apex Court, during that time played tremendous role in case of Municipal
Council v. Vardichand 18and Ratlam Municipality case.19

The Indian Apex Court has occupied effect of the establishment of the Constitution by
giving interpretation of Menaka Gandhi case20.

New Approach in Judicial Review

The P. I. L. has occupied a new-fangled dimensional character up-to-the-minute in judicial

review. The people who are unaware of law, procedure of court, economically unable to
approach the court, socially depressed and backward class find problems before higher
judiciary for judicial review. In case of Sunil Batra v. Delhi Administration,21 the prisoner
from jail wrote a communication to the adjudicator of Indian Apex Court maintaining that
ruthless beatings were taking place by the head warden, with an additional inmate. The
judiciary preserved that communication as writ. The court issued various instructions to the
government for avoiding such incidents in future. It was the initial stage of Public Interest
Litigation. Public Interest Litigation in Hussainara Khatoon (I) v. State of Bihar22 (1980),
case was related to several articles published in reputed newspapers highlighting difficulties
of under trial inmates of Bihar jails. In their writ filed by an advocate stated deplorable
difficulties of the inmates. Several inmates are still in jail, while they have completed
offences of charges of maximum period of permissible sentences. The Supreme Court has
allowed advocate to maintain writ for judicial review. The court has given direction to
government for speedy trial. The court stated that the right of quick court-martial is the
vigorous portion of individual freedom and the guard of life.

17
(2008)1SCC683
18
(1980) 4 SCC 162
19
AIR 1978 SC 597.
20
AIR 1978 SC 597.
21
AIR 1978 SC 1675.
22
AIR 1979 SC 1377.
 P a g e | 18

The Public Interest Litigation filed by a journalist in case of Sheela Barse v. State of
Maharashtra23 (1983), and the issue remained occupied of women inmates, those who were
kept in jail of Mumbai city. The Supreme Court took the matter seriously under judicial
review and directed to the College of Social work to take interviews of various women
inmates, who suffered ill-treatment or torture from the police and jail authority. Upon the
finding of College of Social Work, Bombay, the court issued various instructions to the
government. The court stated in case of detention of females that they will be kept only in
female lockups, which must be watched over by female constable only. The court further
stated that the female will be cross examined in the presence of female police officials only.

The unique model of public interest litigation that has evolved in India not only looks at
issues like consumer protection, gender justice, prevention of environmental pollution and
ecological destruction, it is also directed towards finding social and political space for the
disadvantaged and other vulnerable groups in society. The Courts have given decisions in
cases pertaining to different kinds of entitlements and protections such as the availability of
food, access to clean air, safe working conditions, political representation, affirmative action,
anti-discrimination measures and the regulation of prison conditions among others.

For instance, in People’s Union for Democratic Rights v. Union of India,24 a petition was
brought against governmental agencies which questioned the employment of underage
labourers and the payment of wages below the prescribed statutory minimum wage-levels to
those involved in the construction of facilities for the then upcoming Asian Games in New
Delhi. The Court took serious exception to these practices and ruled that they violated
constitutional guarantees. The employment of children in construction-related jobs clearly
fell foul of the constitutional prohibition on child labour and the non-payment of minimum
wages was equated with the extraction of forced labour. Similarly, in Bandhua Mukti
Morcha v. Union of India,25 the Supreme Court’s attention was drawn to the widespread
incidence of the age-old practice of bonded labour which persists despite the constitutional
prohibition. Among other interventions, one can refer to the Shriram Food & Fertilizer
case26 where the Court issued directions to employers to check the production of hazardous

23
AIR 1983 SC 378.
24
(1982) 3 SCC 235
25
(1997) 10 SCC 549
26
AIR 1983 SC 378
 P a g e | 19

chemicals and gases that endangered the life and health of workmen. It is also through the
vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary
compensation for constitutional wrongs such as unlawful detention, custodial torture and
extra-judicial killings by state agencies.

An important step in the area of gender justice was the decision in Vishaka v. State of
Rajasthan.27 The petition in that case originated from the gang-rape of a grassroots social
worker. In that opinion, the Court invoked the text of the Convention for the Elimination of
all forms of Discrimination Against Women (CEDAW) and framed guidelines for
establishing redressal mechanisms to tackle sexual harassment of women at workplaces. The
decision came under considerable criticism for encroaching into the domain of the legislature.
It must be remembered that meaningful social change, like any sustained transformation,
demands a long-term engagement. Even though a particular petition may fail to secure relief
in a wholesome manner or be slow in its implementation, litigation is an important step
towards systemic reforms.28

IS THE CONCEPT OF JUDICIAL REVIEW AGAINST THE CONCEPT OF

DEMOCRACY?

The power of judicial review over legislative action has been held to be an integral and
essential feature, constituting part of basic structure of the Constitution. The judicial system,
it is held, has an important role to play in our body polity and has a solemn obligation to
fulfill. However, invalidating an Act of the legislature is a grave step and should never be
lightly taken.29 Alexander Bickel, an American Jurist observed:

Judicial review is a counter- majoritarian force in our system, since when the Supreme Court
declares unconstitutional a legislative Act of the Act of an elected executive, it thus thwarts

27
(1997) 6 SCC 241
28
Available at http://www.legalservicesindia.com/article/1679/Doctrine-of-Judicial-Review-in-India:-
Relevancy-of-Defining-Contours.html, visited on 5th April 2019 at 12;02 a.m.
29
Government of Andhra Pradesh v. P.L. Devi, AIR 2008 SC 1115.
 P a g e | 20

the will of the representatives of the people, it exercises control, not on behalf of the
prevailing majority, but against it.30

The Apex Court in Government of Andhra Pradesh v. PL. Devi, 31 after discussing the
opinions and writings of eminent American Scholars and Jurists observed that since the
power of invalidating a Statute prevent the full play of the democratic process and that
“invalidation of a statute made by the legislature elected by the people is a grave step.” In
doing so, the Court said that the Thayer doctrine of Judicial Review of Statutes was
adopted. The doctrine explains:

…….there is one and only one ground for declaring an Act of the legislature to be invalid,
and that is if it clearly violates some provision of the Constitution in so evident manner as to
leave no manner of doubt.32

So if there are two views possible, one making the statute constitutional and the other making
it unconstitutional, the former view, the court ruled must always be preferable.

Judicial review if justified by the combination of principles of:

 Separation of powers;
 Rule of law;
 The reach of constitutionality.

So it cannot be denied that legislative actions are indirectly the will of the people. However,
above that is the Constitution of India which acts as a guardian of the rights of the people and
if any law violates or abridges that right, it is the duty of the Courts to scrutinize that law. So
judicial review is the rule of law, and hence not anti- democratic in nature.

JUDICIAL REVIEW AND U.S.A

The US Constitution is the supreme law of the land. The Supreme Court has the power to
interpret it and preserve its supremacy by preventing its violations by the Congress and the
President. This provision has been the basis of the judicial review power of the Supreme

30
Prof. Narendra Kumar, Consitutional Law of India, Allahabad Law Agency at pg. 468.
31
AIR 2008 SC 1115.
32
Supra note 18 at pg. - 468.
 P a g e | 21

Court. “Judicial Review " is the principle and authority which give the Supreme Court of
USA the power to reject or abrogate any law which is made by Congress or states. According
to this power Supreme Court of USA reject or abrogate any law which does not suit or
conform to the constitution of USA or apposite the constitution of USA or violate the
Constitution It has come to be recognised as the most distinctive attribute and function of the
Supreme Court. As such, it can be said Judicial Review is the power of the Supreme Court to
determine the constitutional validity of federal and state laws whenever these are challenged
before it in the process of litigation. It is the power to reject such laws as are held to be it ultra
vires.

There is no clear mention of the Judicial Review power of the court in any part of the US
Constitution. Its origin has been the result of a judicial decision and its continuance has been
possible due to some conventions.

It was for the first time used by its Supreme Court in 1803.

JUDICIAL REVIEW AND U.K.

In United Kingdom 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 crystallized with numerous decisions and the same was
confirmed in British Railways Board v. Pickin.33

Thus this view has been prevalent in United Kingdom till very recently, and though a certain
change has been brought about by some developments as will be elucidated in later sections,
it can easily be said that Parliamentary Sovereignty remains a general principle of their
constitution. However this concept has started undergoing a change in the recent times and
this is mostly due to the fact that Judges have started believing in the concept of judicial

33
[1974] UKHL 1
 P a g e | 22

activism and the need to check the abuse of power by the executive as well as to protect the
individual rights.34

CONCLUSION

The power of judicial review which rests with the Supreme Court and partially with the High
Courts is a very powerful tool in providing justice to the very objectives enshrined in the
preamble of the constitution. However, this has to be used in a limited sense i.e., where its
necessity cannot be waived off.

In Union of India v. State of Rajasthan 35 an appeal was filed by the Union Government
against a judgment of the Rajasthan High Court which issued a direction to the Union
Government and to its Secretaries in the Ministries of Civil Aviation and Home Affairs “to
include the Chief Justices and the Judges of the High Court in the list of persons exempted
from pre-embarkation security checks” at airports, the Full Bench of T.S. Thakur, CJ and
D.Y. Chandrachud and L. Nageswara Rao, JJ. ruled that the High Courts in their power of
judicial review are not entitled to suggest policies which they consider fit as it falls beyond
the legitimate domain of judicial review.

This ruling of the Court came in light of a judgment of the Rajasthan High Court, wherein the
High Court had taken sou moto cognizance of a breach of security matter at the Sanganer
Airport, Jodhpur and conversely issued a direction of a nature that encroached upon the
domain of the executive and lay outside the power of judicial review.

The Court held that preserving the sanctity of judicial power is necessary and for this, the
power of judicial review is confined to cases where there is a breach of law or of the
Constitution. It said that the judgment of the Rajasthan High Court is an example of a matter
where the Court should not have entered.

The expansion of ‘judicial review’ (which is often described as ‘judicial activism’) has of
course raised the popular profile of the higher judiciary in India.. There are two conceptual
objections against the justifiability to enforce positive obligations or aspirational rights. The

34
Available at https://www.lawteacher.net/free-law-essays/constitutional-law/judicial-review-in-united-
kingdom-law-essays.php, visited on 2nd April, 2019 at 1.04 p.m.
35
2016 SCC 1468.
 P a g e | 23

first is that if judges devise strategies to enforce the directive principles, it amounts to an
intrusion into the legislative and executive domain. The articulation of newer fundamental
rights is the legislature’s task within which the judiciary should refrain from intervening.
Further these obligations were enumerated as directive principles by the framers on account
of practical considerations of heavy cost. Therefore judiciary must exercise restraint.

However, the second objection to the reading in of positive obligations raises some scope for
introspection amongst judges. The judicial inclusion of socio-economic objectives as
fundamental rights can be criticised as an unviable textual exercise, which may have no
bearing on ground-level conditions though the unenforceability and inability of state agencies
to protect such aspirational rights could have an adverse effect on public perceptions about
the efficacy and legitimacy of the judiciary. Also, a question arises whether poor enforcement
is a sufficient reason to abandon the pursuit of rights whose fulfillment enhances social and
economic welfare. At this point, one can recount Roscoe Pound’s thesis on law as an agent of
social change. The express inclusion of legal rights is an effective strategy to counter-act
social problems in the long-run. At the level of constitutional protection, such rights have an
inherent symbolic value which goes beyond empirical considerations about their actual
enforcement. The colonial regime in the Indian subcontinent periodically made legislative
interventions to discourage retrograde and exploitative social practices such as Sati
(immolation of widows), prohibition of widow-remarriage and child marriage. Even though
there have been persistent problems in the enforcement of these legislations, in the long run
they have played an important part in reducing the incidence of these unjust customs. In the
short run even the coercive authority of law may not be enough of a deterrent, but in the long
run the continued existence of such authority helps in creating public opinion against the
same practices. The Court has for all practical purposes disregarded the separation of powers
under the Constitution, and assumed a general supervisory function over other branches of
governments. The temptation to rush to the Supreme Court and 21 High Courts for any
grievance against a public authority has also deflected the primary responsibility of citizens
themselves in a representative self government of making legislators and the executive
responsible for their actions. The answer often given by the judiciary to this type of overreach
is that it is compelled to take upon this task as the other branches of government have failed
in their obligations. On this specious justification, the political branches of government may,
by the same logic, take over the functions of the judiciary when it has failed, and there can be
 P a g e | 24

no doubt that there are many areas where the judiciary has failed to meet the expectations of
the public by its inefficiency and areas of cases.

The supreme Court acting as guardian for people’s rights has taken various decisions or
delivered judgments with respect to adultery under Indian Penal Code, LGBT rights,
Sabrimala issue etc. So judicial review is very necessary to maintain a balance.

In Joseph Shine v. Union of India,36 the Supreme Court has declared Section 497 of Indian
Penal Code unconstitutional. The Indian Penal Code's provision on adultery violates the
fundamental Right to Equality as it treats married men and women differently, the Supreme
Court said. Chief Justice Dipak Misra said it treats a married woman as "chattel" because her
relationship with a married man depends on the "consent or connivance of her husband". It
had termed the provision "prima facie archaic" and said it was "tantamount to subordination
of a woman where the Constitution confers equal status".

36
2018 SCC 1676.
 P a g e | 25

BIBLIOGRAPHY

 Jonathan Auburn, Jonathan Moffett, Andrew Sharland; Judicial Review: Principles

and Procedure, Oxford University Press 2013.
 Pandey, J.N., Constitutional law of India, Central Law Agency, Allahabad, 2013
 Prof. Narendra Kumar, Consitutional Law of India, Allahabad Law Agency , 2014
 Thenius Roux, The Politico- Legal Dynamics of Judicial Review: A Comparative
Analysis, Cambridge University Press, 2018

WEBLIOGRAPHY

 http://www.legalservicesindia.com/article/1679/Doctrine-of-Judicial-Review-in-
India:-Relevancy-of-Defining-Contours.html
 https://blog.scconline.com/
 https://indiankanoon.org/
 https://www.lawteacher.net/free-law-essays/constitutional-law/judicial-review-in-
united-kingdom-law-essays.php