Administrative Law

LLM I Semester

Judicial Review

The system of judicial review of administrative action has been inherited from
Britain. It is on this foundation that the Indian Courts have built the superstructure of
the control mechanism.

Judicial Review is the power of Courts to pronounce upon the constitutionality of

legislative and executive acts of the government which fall within their normal
jurisdiction. It has the origin in the theory of limited government and in the theory of
two laws, viz. an ordinary law and a supreme law i.e Constitution. According to Basu
in his book Basu's commentaries on constitution of india, vol 1, any act of the
ordinary law making bodies which contravenes the provisions of the supreme law
must be void and there must be some organ which is to possess the power or authority
to pronounce such legislative acts void. In Fundamental Rights Case, Justice Khanna
said that judicial review has become an integral part of our constitution and a power
has been vested in the High Courts and the Supreme Court to decide about the
constitutional validity of the provisions of statutes. If the provisions of the statutes are
found to be violative of any of the articles of the constitution which is the touchstone
for the validity of all laws the Supreme Court and the High Courts are empowered to
strike down the said provision."

When the Legislature, Executive and Judiciary have harmed the constitutional values
and deny the rights, which have been definite under the Indian Constitution to the
Indian inhabitants. In such circumstances the judicial review plays very important role
as protector for safeguarding the rights of people. It is the long back journey, where
we are right now. However, judiciary has faced burden of many technocrats, lawyers,
politicians and academicians. 

H.M.Seervai in his book of Constitutional Law of India itemized that the superiority

of judicial assessment is the conversant attraction of India, Canada and Australia, by
which mechanism of parting has not been seats in without ornamentation intelligence
under the Indian Constitution. The judicial assessment is technologically advanced as

Shashikant Saurav

Asst. Prof. of Law, IILS

shashikantsaurav@gmail.com
an indispensable feature in the countries, wherever written Constitution is adopted. In
India, different organs of the government have been discriminating adequately, their
powers and functions have been bifurcated and one structure of government is not
permitted to emancipation the occupations of alternative organ.

The parliamentary form of democracy, which is adopted by India, wherein every

section of people is involved in decision making and policy making process. Every
organ reflects fair representation of every section of the society. This is the kind of
wide ranging democracy. It is the consciousness of responsibility in each republican
democracy. Such straightforward theme has to be recalled by everyone. The primary
duty for application of the rule of law lies with the court. It is true that the rule of law
is the groundwork of social equality. It can never be modified through exercise of new
powers of Parliament. Now it has been trusted, that the rule of law is the
straightforward attractiveness of every one Constitution. All those who exercise
public powers, they have the accountability. They have to work within democratic
provisions of the Constitution. The judicial review is significance to guide them.
Under Article 226 and Article 227 of the Indian Constitution, the influence of judicial
assessment, have been so long as to the High Court. In Article 32 and Article136 of
the Indian Constitution, the control of judicial assessment has so long as to the S.C.I.
for the review of every aspect of the government and public functionaries.

EVOLUTION OF JUDICIAL REVIEW:

The Doctrine of Judicial Review was for the first time propounded by the Supreme
Court of America. Originally, the constitution of United States did not contain an
express provision for judicial review but it was assumed by the Supreme Court of
United States in the historic case of Marbury vs Madison 2. LEd.60. Chief Justice
Marshall  observed that "the constitution is either superior paramount law,
unchangeable by ordinary means or it is on a level with ordinary legislative acts and
like other acts is alterable when the legislature shall please to alter it........... Certainly
all those who framed written constitutions contemplate them as forming the
fundamental and paramount law of the nation and consequently the theory of every
such government must be that an act of the legislature repugnant to the constitution is
void.... It is emphatically the province and duty of the judicial department to say what
the law is".

Shashikant Saurav

Asst. Prof. of Law, IILS

shashikantsaurav@gmail.com
In India the power of judicial review was exercised by the courts prior to the
commencement of the constitution of India. The British Parliament introduced
Federal System in India by enacting the Government of India Act 1935. Under this act
both the Central and State legislatures were given plenary powers in their respective
spheres. They were supreme in their allotted subjects like British Parliament. The Act
of 1935 established the Federal Court so as to function as an arbiter in central and
state relationship. The Federal Court was also empowered to scrutinize the violation
of the constitutional directions regarding the distribution of powers on introduction of
federalism in India. The power of judicial review was 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 determines the
constitutionality of legislative acts.

Mauriee Gwyer, Chief Justice of Federal Court of India in Bhola Prasad v The King
Emperor AIR 1942 F.C.R 17 P20, observed that " we must again refer to the
fundamental proposition enumerated in 1878 3 AC 889 (Reg v Borah) that Indian
legislatures within their own spheres have plenary powers of legislation as large and
of the same nature as those of the parliament itself, if that was true in 1878, it cannot
be less true in 1942.

The Federal Court of India vigorously worked for more than a decade with wisdom
and dignity and by various constitutional decisions. During the span of the decade
Federal Court of India and other High Courts reviewed the constitutionality of large
number of legislative acts with full judicial self-restraint, insight and ability.

The Supreme Court of India as a successor of Federal Court of India after the
commencement of constitution of India inherited the great traditions built by the
Federal Court. The constitution of India envisages a very healthy system of judicial
review and it depends upon the India judges to act in a way as to maintain the spirit of
democracy. In the present democratic setup in India, the court cannot adopt a passive
attitude and ask the aggrieved party to wait for public opinion against legislative
tyranny, but the constitution has empowered it to play an active role and to declare
legislation void, if it violates the constitution.

Shashikant Saurav

Asst. Prof. of Law, IILS

shashikantsaurav@gmail.com
The constitutional thinkers of India before the Indian Republic was established were
of the view that in the constitution of free India there must be provisions for Supreme
Court with the power of judicial review.

Colonel K.N.Hasker and K.M. Pannikkar in their book Federal India, at P 147 said
that" the supreme judicial authority should be invested with the power to declare ultra
vires measures which go against constitution."

Granville Austin in his book The Indian Constitution - Corner Stone Of a Nation said
that " the judiciary was to be an arm of the social revolution upholding the equality
that Indians has longed for during colonial days, but had not gained not simply
because the regime was colonial, and perforce repressive, but largely because the
British had feared that social change would endanger their rule.... The courts were
also idealized because, as guardians of the constitution there would be expression of
the new law created by Indians for Indians. Judicial review, assembly members
believed, was ' an essential power for the courts of a free India, with a federal
constitution'."

Shashikant Saurav

Asst. Prof. of Law, IILS

shashikantsaurav@gmail.com