SUBJECT:…Constitutional…Law………

TOPIC: Origin of Judicial Review …

SUBMITTED TO:

Asst. Prof. …Aprajita Verma ………………….

SUBMITTED BY:

………………………Mohd Waris Khan …………

COURSE / SEMESTER

BA.LLB.-(Semester-2)

SESSION: …2019-2024……………..

ACKNOWLEDGEMENT

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This project consumed huge amount of work, research and dedication. Still, implementation
would not have been possible if we did not have a support of many individuals and teachers.
Therefore I would like to extend our sincere gratitude to all of them. First of all I am thankful to
Indore Institute of Law for their logistical support and for providing necessary guidance
concerning project completion .I am also grateful to My Professor for provision of expertise, and
support in the implementation. Without their superior knowledge and experience, the Project
would like in quality of outcomes, and thus their support has been essential. Nevertheless, I
express my gratitude towards my friends and colleagues for their kind co-operation and
encouragement which help me in completion of this project. I am also thankful to my parents for
their constant inspiration and moral support.

ABSTRACT

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The paper analyses that 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 acts 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 the countries. In India, a judicial review is a review
of government decisions done by the Supreme Court of India. A court with authority for judicial
review may invalidate laws acts and governmental actions which violates the Basic features of
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 courts by the High Court).

DECLARATION

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"The text reported in the project is the outcome of my own efforts and no part of this project
assignment has been copied in any unauthorized manner and every part of it has been
incorporated with due acknowledgement.

RESEARCH METHODOLOGY

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 SCOPE OF THE PROJECT

The project sheds light on What is Judicial Review and its position in the Constitution.

OBJECTIVE OF THE PROJECT

The main objective of the project is to show the meaning and the power of Judicial Review.

HYPOTHESIS:
Can the Judicial Review be made Unconstitutional by the Parliament ?
RESEARCH METHOD

Research Method applied in this project is Doctrinal. Since the research is a doctrinal one,
therefore the data would be mainly collected from secondary sources of information.
These will include books and internet. Keeping this in view, the researcher has gone through
different books, Web references, E-journal, reports etc. The relevant material is collected from the
secondary sources. Materials and information are collected from sources like internet and books.

SOURCES:

This project is primarily based on secondary sources that include both printed and non-printed
materials. Printed material includes articles and books, whereas non-printed materials include
data obtained from the browser.

INTRODUCTION

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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, acts 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.

What is Judicial Review?

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Meaning of Judicial Review
‘Judicial review’ may be defined as a “Court’s power to review the actions of others branches of
government, especially the Court’s power to invalidate legislative and executive actions as being
unconstitutional”.

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.

Initial, two particular lawful frameworks, common law and customary law, have various
perspectives about legal audit. Custom-based law judges are viewed as wellsprings of law,
equipped for making new lawful standards, and furthermore fit for dismissing legitimate rules
that are not, at this point substantial. In the common law custom, judges are viewed as the
individuals who apply the law, with no capacity to make (or devastate) legitimate standards.

Besides, the possibility of partition of forces is another hypothesis about how a popularity based
society's legislature ought to be composed. As opposed to administrative incomparability, the
possibility of division of forces was first presented by Montesquieu; it was later organized in the
United States by the Supreme Court governing in Marbury v. Madison under the court of John
Marshall. Division of forces depends on the possibility that no part of government ought to have
the option to apply control over some other branch without fair treatment of law; each part of
government ought to have a mind the forces of different parts of government, accordingly
making a regulative parity among all parts of government. The way in to this thought is
governing rules. In the United States, legal survey is viewed as a key keep an eye on the forces
of the other two parts of government by the legal executive.

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Contrasts in sorting out equitable social orders prompted various perspectives in regards to legal
survey, with social orders dependent on customary law and those focusing on a detachment of
forces being the destined to use legal audit. In any case, numerous nations whose legitimate
frameworks depend on the possibility of authoritative matchless quality have slowly received or
extended the extent of legal audit, including nations from both the common law and precedent-
based law conventions.

Another motivation behind why legal survey ought to be comprehended with regards to both the
advancement of two unmistakable lawful frameworks (common law and precedent-based law)
and two hypotheses of majority rule government (administrative matchless quality and partition
of forces) is that a few nations with precedent-based law frameworks don't have legal audit of
essential enactment. In spite of the fact that a customary law framework is available in the
United Kingdom, the nation despite everything has a solid connection to the possibility of
authoritative incomparability; therefore, decided in the United Kingdom don't have the ability to
strike down essential enactment. Nonetheless, when the United Kingdom turned into an
individual from the European Union there was pressure between its inclination toward
administrative matchless quality and the EU's lawful framework, which explicitly gives the
Court of Justice of the European Union the intensity of legal audit.

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Constitutional Significance of Judicial Review:

Origin of Judicial Review

The doctrine of judicial review has acquired different nuances during the course of its evolution
in UK, USA, and India. Its origins can be traced to UK which has no written Constitution. It has
become firmly established in USA with a written Constitution establishing a federal polity.
However, the doctrine reached its culmination under the Indian Constitution when the Supreme
Court of India bestowed on judicial review the widest ambit and amplitude in the casus
célèbre Keshvanand Bharti v. State of Kerala . The very old case on judicial review in England
in case Dr. Bonham’s Chief Justice Coke stated that when an Act of Parliament was against
common right or reason, repugnant or impossible to perform, the Common Law would control it
and adjudge such Act to be void. In the Historic case Marbury v. Madison the Supreme Court of
America made it clears that Court had the power of judicial review, Chief Justice George
Marshall observed:

What are Administrative Actions?

Administrative action is the residuary action which is neither legislative nor judicial. It is
concerned with the treatment of a particular situation and is devoid of generality. It has no
procedural obligations of collecting evidence and weighing argument. It is based on subjective
satisfaction where decision is based on policy and expediency. It does not decide a right though
it may affect a right. However, it does not mean that the principles of natural justice can be
ignored completely when the authority is exercising “administrative powers”. Unless the statute
provides otherwise, a minimum of the principles of natural justice must always be observed
depending on the fact situation of each case.

In case A.K. Kraipak v. Union of India , the Court was of the view that in order to determine
whether the action of the administrative authority is quasi-judicial or administrative, one has to
see the nature of power conferred, to whom power is given, the framework within which power
is conferred and the consequences.

Administrative action may be statutory, having the force of law, or non statutory, devoid of such

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legal force. The bulk of the administrative action is statutory because a statute or the Constitution
gives it a legal force but in some cases it may be non-statutory, such as issuing directions to
subordinates not having the force of law, but its violation may be visited with disciplinary action.
Though by and large administrative action is discretionary and is based on subjective
satisfaction, however, the administrative authority must act fairly, impartially and reasonable.

Grounds for Judicial Review of Administrative Actions:

1. Illegality
2. Irrationality
3. Procedural impropriety
4. Proportionality

Present Scenario in India over Administrative Actions

Judicial review is central in dealing with the malignancy in the exercise of power. However, in
the changed circumstances of socio-economic development in the country the Court is
emphasizing ‘self restraint’. Unless the administrative action is violative of law or the
Constitution or is arbitrary or mala fide, Courts should not interfere in administrative decisions .
Moving in this direction, the apex Court in Sidheswar Sahakari Sakhar Karkhana Ltd. v.
Union of India, was of the opinion that normally the Court should not interfere in policy matter
which is within the purview of the government unless it is shown to be contrary to law or
inconsistent with the provisions of the Constitution.

Therefore, it was held that grant of concession, exemption, incentive and rebate is a matter of
policy with the government under the Central Excise Act, 1944, and hence, Court should not
interfere unless found violative of law and Constitution. The Court was quick to add that this
principle of judicial review is not a matter of exclusion of the power of judicial review but of
judicial “self-restraint” . Before us there are various instances where serious administrative
actions lapses in government department. First important case is coal scam in which the figure to
be around 1,060,000 crore (US$192.92 billion).

It is called by the media as the Mother of all Scams . the Comptroller & Auditor General's draft

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report titled 'Performance Audit Of Coal Block Allocations' says the government has extended
"undue benefits", totaling a mind-boggling Rs 10.67 lakh crore, to commercial entities by giving
them 155 coal acreages without auction between 2004 and 2009. In 2005 the Expert Committee
on Coal Sector Reforms provided recommendations on improving the allocation process, and in
2010 the Mines and Minerals (Development and Regulation) Act (MMDR Act), 1957
Amendment Bill was enacted, providing for coal blocks to be sold through a system of
competitive bidding. Numbers of allegations were made on Congress and BJP leaders such as
Subodh Kant Sahay, Tourism Minister in the UPA government, Congress MP, Naveen Jindal's,
Ajay Sancheti's SMS Infrastructure Ltd.

He is a BJP Rajya Sabha MP and is believed to be in close relation with Nitin Gadkari. At the
end of June 2012, Coal Ministry decided to form an Inter-Ministerial Group (IMG), to decide on
either de-allocation or forfeiting the Bank Guarantees (BG) of the companies that did not
develop allotted coal blocks. September 2012 Coalgate reaches Supreme Court of India
Advocate M L Sharma filed a Public Interest Litigation (PIL) in the Supreme Court seeking to
cancel the allotment of 194 coal blocks on grounds of arbitrariness, illegality, unconstitutionality
and public interest. Defending the CAG, a Supreme Court bench of Justices R M Lodha and A R
Dave dismissed the Solicitor General Rohinton Nariman’s objections that petition relies heavily
on the CAG report by saying, the CAG is a "Constitutional authority" and that its report is "Not a
piece of trash".

Judicial review of the decision taken on the basis of expert opinion.-

In Veerpal singh v. Secretary, Ministry of Defence, a Bench of three Judges of the supreme
Court held that although the Courts are extremely loath to interfere with the opinion of the
experts, there is nothing like exclusion of judicial review of the decision taken on the basis of
such opinion. The opinion of the experts deserves respect and not Worship and the Court and
other judicial and quasi-judicial forums entrusted with the task of deciding the disputes relating
to premature release/discharge from the army cannot in each and every case refuse to examine

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the record of the Medical Board for determining whether or not the conclusion reached by it is
legally sustainable.

The Court cannot sit in judgment over the commercial or business dealings between the parties-
The Court sitting in the jurisdiction cannot sit in judgment over the commercial or business
decision taken by parties to the agreement after evaluating and assessing its monetary and
financial implications unless the decision is in clear violation of any statutory provisions or
perverse or for extraneous considerations or improper motives. State or State undertaking can
enter into contract which may involve complex commercial factors. While doing so, the various
decision are made. There is always an element of risk in such decisions and ultimately it may
turn out to be correct decision or wrong one. The mere fact that the decision proved out to be
wrong is no ground to hold it to be mala fide or done with ulterior motives.

Judicial Review not akin to adjudication on merit.—Judicial Review is not akin to adjudication
on merit by re-appreciating the evidence as an Appellate Authority. In judicial review, the
Court/Tribunal can only consider whether the conclusion is based on record and supports the
finding or whether the conclusion is based on no evidence

Exercise of judicial power-

Declaration of drought in State.—In Swaraj Abhiyan (1) v. Union of India, the Supreme Court,
regarding the declaration of drought in the State held—No judicial standards can be laid down
for the declaration of the drought in the State but notwithstanding the absence of judicial
manageable standards, the judiciary cannot give a totally hands-off response. In view of Article
2l of the Constitution, the judiciary can and must consider issuing appropriate directions should a
State Government or Union of India fail to respond to a developing crisis or crisis in the making
but there is a line that must be drawn."

Allegation of extra-judicial execution.-

In Extra Judicial Execution Victim Families (Association) V. Union of India, the petitioners
alleged 1258 extra-judicial execution by the Manipur Police and the Security Forces (mainly the
Assam Rifles and the Army), the majority of the execution carried out in cold blood while the
victims were in custody and after torturing them, the memorandum of which was also presented
to the United Nations Special Rapporteur on extra-judicial, summary or arbitrary executional

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during his mission to India in 2012. The Manipur Police did not register even a single FIR
despite several complaints of such execution and consequently not a single investigation or
prosecution commenced. The National Human Rights Commission turned out to be a toothless
tiger and the Manipur State Human Rights Commission was defunct due to non-appointment of
members despite the direction by the Gauhati High Court, Manipur Bench.

The contention of the Attorney-General for the Union of India was—The security of the nation
was of paramount importance and that involved the security of the State as well. He referred to
Article 355 of the Constitution and Entry 2-A of List I of 7th Schedule of the Constitution
relating to the deployment of Armed forces of the Union in any State in aid of the civil power.
The militant groups operating in north-east India having support from the inimical countries
demand separation from the country and indulge in violence killing innocent civilians for
creating fear psychosis and indulge in entertain any doubt that the SIT or the judiciary would be
influenced by the observations said to have been made by the Court, to remove any vestige of
doubt, any observations made or sad to have been made by this Court, during the
implementation of this Court through a continuing mandamus are not intended to and should not
in any manner be countered as compromising the independence, integrity and farness of the STI
and the concerned Judges.

Remedies of Judicial Review/ Public Interest Litigation

Here five types of writs are available for judicial review of administrative actions under Article
of 32, and Article of 226 of Constitution of India.

Habeas Corpus writ literally means “Have the body” this writ is issue to secure the release of
person from illegal detention or without legal justification, its deals with person right of freedom.
In simple words Court direct the person and even authority who has detained individual to bring
such person before Court so that Court may decide the validity, justification, jurisdiction of such
detention. It is to be filed by any person.

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Mandamus writ
It means that “To command the public authority” to perform its public duty in India. It is
discretionary remedy even as all five writs are discretionary remedy in nature. Court has full
power to refuse to entertain a writ petition. This writ is not lie on president, governor, state
legislatures, private individuals or any registered body.

Quo Warranto
It is ancient common law remedy. It is used against an intruder or usurper of public office.
Literally means “What is your authority”. Court directs the concerned person that by what
authority he holds the office. The Court may oust a person from the office if he finds that he is
not entitled to obtain such office.

Prohibition
Prohibition is an extraordinary prerogative writ of prevention; it seeks to prevent Courts,
Tribunals, Quasi-judicial authorities and officers from exceeding their jurisdiction. Main object
of this writ is to prevent the encroachment of jurisdiction. It is based upon “Prevention is better
than cure”.

Certiorari
It deals with a method to bring the record of subordinate Court before the superior Court for
correction of jurisdiction or error of law committed by them. In simple word if any inferior Court
decided the case beyond its powers than Apex Court and High Courts correct the error by issuing
this writ. Earlier it was used for criminal matters but later on it was started to use in civil cases
too. Grounds for this writ are (a) excess or failure to exercise the jurisdiction (b) violation of
natural justice rules such as right of notice and hearing (c) violation of fundamental rights or
statutory provisions of laws. (c) Finding of facts which no person would have reached to the
conclusion.

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 CONCLUSION

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, acts 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. There have been Remedies provided for Judicial Review under Article 32 and 226
of the Indian Constitution.

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 BIBLIOGRAPHY

The matter has been taken from various Articles regarding Judicial Review and from the other
internet browsers also.

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