University of Petroleum and Energy Studies,

Dehradun
School of Law

B.B.A LL.B (HONS.) Corporate Laws, Batch 1

Semester V

Academic Year: 2018-19 Session: August- Dec, 2018

Project on:
“Judicial Review”

Name: Anjanee Goel

SAP ID: 500052815
Roll No.: R760216013
 I. Meaning of Judicial Review

Judicial review is the power of the courts to determine the constitutionality of Legislative act in a
case instituted by aggrieved person. It is the power of the court to declare a legislative act void
on the grounds of unconstitutionality. It has been defined by 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”.1 Edward S. Corwin also says that Judicial Review is the power and duty of the courts to
disallow all legislative or executive acts of either the central or the State governments, which in
the Court’s opinion transgresses the Constitution.2
Judicial Review prevails in those countries which have written Constitution. It means that the
Constitution is the supreme law of land and any law inconsistent therewith is void.
For example, in our constitution, if the courts find that the law made by legislature Union or
State is violation of the various fundamental rights guaranteed in part III, the law shall be struck
down by the courts an unconstitutional under Art. 13(2)
Again where the courts find that there has been exclusive delegation of legislative power a
particular case, the parent Act as well as the product, i.e. delegated legislation shall be struck
down as unconstitutional.3
The Court also performs the interpretative functions and keeps into consideration that the society
does not stand still; it is dynamic and not static; social and economic conditions change
continually. Therefore, the courts must so interpret the Constitution that it does not fall behind
the changing, contemporary societal needs. The words of the Constitution remain the same, but
their significance changes from time to time through judicial interpretation.4

1
Smith, Edward Conard and Zurcher, Arnold Jhon, Dictionary of America Politics, Barnes and Noble, New York,
1959, p. 212.
2
Corwin, Edward S., A Constitution of Powers in a Secular State, The Michie Company, USA, 1951, p. 3-4.
3
In Hamdard Dawakhana v. Union of India, AIR 1960 SC 554; the Supreme Court for the first time struck down as
unconstitutional an Act made by union Parliament on the ground of excessive delegation.
4
Jain, M.P., op.cit., p. 830.
In Direct Judicial Review, the court overrides or annuls all enactment or an executive act on the
ground that it is inconsistent with the Constitution. In indirect Judicial Review, the court attempts
to give such interpretation to the impugned statute so that it may be held constitutional.5
If the courts want to ignore any law on the ground that it violates the Constitution, declaration by
the Court of its unconstitutionality is essential. The Court does not suo moto decide
unconstitutionality in the present system of Judicial Review in India or in America, unless
moved by an aggrieved party and also, unless the determination of unconstitutionality be
necessary for the decision of the case. The legislature itself being the maker of law is not
competent to determine the constitutionality of any legislative Act. An unconcerned independent
and impartial body like the court is the proper authority to look into legislative lapses. This is
necessary for the maintenance of the spirit of democracy.
The Court, by evolving the rules of conduct for Judicial Review, has adhered to the principle that
the person who challenges the constitutionality of a legislative Act must show that his right has
really been infringed.
II. Meaning of Review

Review is a provision under Section 114 of Code of Civil Procedure, 1908 which states that
subject as aforesaid, any person considering himself aggrieved-
By a decree or order from which an appeal is allowed by this code, but from which no appeal has
been preferred,
By a decree or order from which no appeal is allowed by this court, or
By a decision on a reference from a court of small causes, may apply for a review of judgment to
the court which passed the decree or made the order, and the court may make such order thereon
as it thinks fit.

Dictionary meaning of the word review is an act of carefully looking at or examining the quality
or condition of something or someone: examination or inspection.
Review can be filed by the aggrieved in the same court where the order or decree is passed. It is
a discretionary right of the court and not statutory right. According to section 114 of Code of
Civil Procedure, any person aggrieved by a decree or order from which an appeal is allowed but
5
Ibid., p. 830.
not filed, or a decree or order from which no appeal is allowed, can file a review petition in the
same court which passed such decree or order on the following grounds:
1. When new or important matter or evidence is discovered which after the exercise of due
diligence was not within his knowledge, or could not be produced by him at the time when the
decree or order was passed,
2. When there is any mistake or error apparent on the face of the record,
3. When there is any other sufficient reason.
There is no provision of reviewing an order already reviewed, unlike an appeal where there is a
provision of second appeal. Review is dealt with under section 114 and Order 47 of Code of
Civil Procedure, 1908 (hereinafter referred to as CPC, 1908).

III. Meaning of Appeal

Under CPC, 1908, there is an entire part VII on appeals comprising of sections 96 to 112,
however the expression appeal has not been defined in the code of civil procedure, 1908. Right
to first appeal is a substantive right but second appeal is only allowed on the substantial question
of law. Appeal means removal of a cause from an inferior court. Superior court need not be high
court but may be a district court.
Right to appeal doesn’t arise when adverse decision is given, but on the day suit is instituted, i.e,
proceedings commenced, right to appeal get conferred. Thus it can be said the right to appeal is
appeal substantive right vested in parties from the date suit is instituted.

IV. Difference between Review and Appeal

Review
1. Section 114 and Order 47 deal with review
2. A review lies to the same court
3. There is only one review. Second review
application does not lie.
Appeal
1. Sections 96 to 112 and Orders 41 to 45 deal
with appeals
2. An appeal lies to the superior court from
inferior court.
3. There are three appeals- (a) from district
munsiff magistrate court/ subordinate judge’s

4. Review of judgment involves
reconsideration of the same subject matter by
the same judge.
5. The grounds of review are narrower than the
grounds of appeal.
court to district judges (first appeal); (b) from
District judge’s court to High Court (Second
Appeal); (c) from high court to Supreme Court
(third appeal).
4. An appeal is heard by a different judge.
5. The grounds of appeal are wide than the
grounds of review.

V. Power of Judicial Review of Supreme Court and High Court: Article 32,
136, 226 and 227 of Constitution of India

The power of judicial review is incorporated in Article 226 and 227 of the constitution in so far
as the high courts are concerned. In regard to Supreme Court, Article 32 and 136 of the
constitution, the judiciary in India has come to control by judicial review every aspect of
governmental and public functions.

Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the
supreme and high courts.

Articles 131- 136 entrusts the court with the power to adjudicate disputes between individuals,
between individuals and the state, between state and the union, but the court may be required to
interpret the provisions of the constitution and the interpretation given by the supreme court
becomes the law honored by all the courts of the land.

Article 227 determines that every high court shall have superintendence over all courts and
tribunals throughout the territories in relation to which it exercises jurisdiction (except a court
formed under a law related to armed forces).

VI. Judicial Writs: Certiorari, Prohibition, Mandamus, Habeas Corpus,

Quo Warranto
1. Habeas Corpus

The expression “Habeas Corpus” is a Latin term which means ‘to have the body’. If a person is
detained unlawfully, his relatives or friends or any person can move the Court by filing an
application under Article 226 in High Court or under Article 32 in Supreme Court for the writ of
Habeas Corpus.

The main objective of this writ is to provide immediate remedy to person unlawfully detained,
whether in prison or private custody. The detention becomes unlawful if a person who is arrested
is not produced before the magistrate within 24 hours of his arrest. Also the law under which the
person is detained must be lawful, if the law itself is unlawful then the detention is also unlawful.

CASE: Maneka Gandhi v. Union of India 6- This case is a culmination of the process of
Articles 14, 19 and 21 for impregnating the procedure established by law with the notions of
reasonableness and fairness. It became a great trendsetter for further evolution of nicer
components of safeguards. In this case, there was involved the constitutionality of an executive
order and relevant provisions of Passport Act impounding the passport of the petitioner without
giving an opportunity of hearing. It was argued, that, firstly that act conferred undefined power
of impounding, and hence, was violative of article 14, secondly, that since petitioner’s freedom
of speech and occupation was indecently deprived because of impounding of her passport, such
deprival should conform to the requirements of Article 19, and thirdly, that, procedure
established by law under Article 21 should provide reasonable opportunity of hearing and should
not be arbitrary.

2. Mandamus

The word “mandamus” means “the order”.   The  writ  of  mandamus  is  thus  an  order  by  a 
superior  court  commanding  a  person  or  a  public  authority  (including  the  Government 
6
AIR 1978 SC 597
and  public  corporation)  to  do  or  forbear  to  do  something  in  the;  nature of public duty or 
in  certain cases of a statutory  duty.

This  writ  can  be  issued  when  the  government  denies  to  itself  a  jurisdiction  which  it
undoubtedly  has  under  the  law}  or where  an  authority  vested  with  a  power  improperly 
refuses   to  exercise  it.  The purpose of this writ is to restrict the public authorities to work
within their powers.

CASE: K.N. Guruswamy v. State of Mysore7- The court held that in the case of lack of power
and abuse of power by the administrative authority, anybody who is affected by the action,
though he may not have a substantive, enforceable right, can claim mandamus.

3. Prohibition

The expression ‘prohibition’ literally means ‘to prohibit’. The Writ of Prohibition is a judicial
order issued by the Supreme Court or a High Court to an inferior Court or quasi-judicial body
forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a
jurisdiction with which it is not legally vested. Thus, object of the writ is to compel inferior
courts to keep themselves within the limits of their jurisdiction.

4.  Certiorari

Certiorari is a writ issued from a superior court to an inferior court or tribunal commanding the
latter to send up the record of a particular case. Literally, Certiorari means to be certified. The
Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order
already passed by an inferior court. In other words, while the prohibition is available at the
earlier stage, Certiorari is available on similar grounds at a later stage.

CASE: Budh Prakash Jai Prakash v. STO8- This case illustrates lack of jurisdiction where the
subject- matter was outside the scope of the extent of jurisdiction of a authority. In this case, the
Sales Tax Officer, exercising powers under UP Sales Tax Act, 1948, imposed tax on forward
contracts irrespective of the place where the delivery took place. The court issued the writ of
certiorari on the ground that the subject- matter was outside the jurisdiction of the authority.
7
AIR 1954 SC 592
8
AIR 1952 All 764
5. Quo-Warranto:

The word Quo-Warranto literally means “by what warrants?” It is a writ issued with a view to
restraining a person from acting in a public office to which he is not entitled. The Writ of quo-
warranto is used to prevent illegal assumption of any public office or usurpation of any public
office by anybody. For example, a person of 62 years has been appointed to fill a public office
whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a
Writ of quo-warranto against the person and declare the office vacant.

BIBLIOGRAPHY

 http://www.shareyouressays.com/knowledge/5-most-important-difference-between-
review-and-appeal/116851
 https://www.shoneekapoor.com/difference-between-review-revision-and-appeal-in-civil-
cases/
 https://www.academia.edu/20207280/Judicial_Review_In_India_an_Analysis
 http://shodhganga.inflibnet.ac.in/bitstream/10603/11379/9/09_chapter%202.pdf
 https://www.jurisedge.com/writshabeascorpuscertiorariprohibitionquowarrantomandamus
/