JUDICIAL REVIEW IN INDIA

INTRODUCTION

Judicial Review in India is based on the assumption that the constitution and derive their
powers from its provisions must function within the framework of the Constitution and must
not do anything which is inconsistent with the provisions of the Constitution. The courts
perform the role of expounding the provisions of the Constitution and examine the
constitutionality of legislative enactments and executive orders of both the Central and state
governments. On examination, if they are found to be violative of the Constitution (ultra
vires). They can be declared as illegal, unconstitutional and invalid (null and void) by the
Supreme Court. Consequently, they cannot be enforced by the Government.

Judicial Review is needed for the following reasons-

i. To uphold the principle of the supremacy of the Constitution.

ii. To maintain federal equilibrium.
iii. To protect the fundamental rights of the citizens.

The Supreme Court used the power of judicial review in various cases, as for example, the
Golakhnath Case (1967), the Bank Nationalization case (1970), the Privy Pursue Abolition
case (1971), the Keshavnanda Bharti case (1973), the Minerva Mills case (1980) and so on.

HISTORY OF JUDICIAL REVIEW

The doctrine of Judicial Review was for the first time propounded by the Supreme Court of
America. Originally, the United States Constitution did not contain an express provision for
Judicial Review. The power of Judicial Review was, however, assumed by the Supreme
Court of America in the historic case of Marbury v. Madison1. In this case the power of
judiciary to review legislative actions was laid down by Justice Marshall.

1
5 U.S 137 (1803).
CONSTITUTIONAL PROVISIONS AND THE GROUNDS OF JUDICIAL REVIEW
IN INDIA

Though the phrase Judicial Review has nowhere been used in the Constitution, the provisions
of several Articles2 explicitly confer the power of judicial review on the Supreme Court. The
constitutional validity of a legislative enactment or an executive order can be challenged in
the Supreme Court on the following three grounds-

i. It infringes the Fundamental Rights.

ii. It is outside the competence of the authority which has framed it, and
iii. It is repugnant to the constitutional provisions.

LIMITATIONS ON JUDICIAL REVIEW

Article 363 of Indian Constitution imposes certain limitations on the power of Judicial
Review.

JUDICIAL REVIEW IS A PART OF BASIC STRUCTURE

Laws made by the Parliament and State Legislatures, including constitutional amendments
are subject to judicial review, which is a basic feature of the Constitution.
In many federal states, federal constitutional courts have reviewed the constitutionality of
amendments made to state constitutions and have invalidated those which are contrary to the
federal constitution. For example, the Austrian Federal Constitutional Court, in its decision of
28 June 2001, number G 103/00, ruled that Art 33(6) of the Constitution of the Land of
Vorarlberg was incompatible with the Federal Constitution.3

In the cases of, Keshavnanda Bharti v State of Kerala 4, Indira Nehru Gandhi v Raj Narain 5,
Minerva Mills Ltd v Union of India6 and Waman Rao v Union of India7, before the Supreme
Court of India, the Supreme Court has invalidated those laws which alter the basic structure
of the constitution.

2
Article 13, 32, 131, 132, 133, 134, 135, 136, 143, 145, 226, 246, 256 etc. of the Constitution of India.
3
<http://codices.coe.int.> (AUT-2001-2-004) accessed 15 December 2013.
4
See n 36
5
See n 41
6
AIR 1980 SC 1789
7
AIR 1981 SC 271
The question whether any act or proceeding is valid or invalid is vested in the judiciary under
the provision of Art 136. The jurisdiction of judicial determination is taken away, and,
therefore, the democratic character of the Constitution is destroyed. Thus in the instant matter
Court has very much power to review the Amendment which alters the very structure and
must not be confused that the doctrine of Basic Structure is vague.

Justice Balakrishnan8 even spoke of judicial review and said, ‘Judicial review to determine
constitutionality of the legislation and to review the executive decision sometimes creates
tension between the judge and the legislative and executive branch. Such tension is natural
and to some extent desirable.’9

JUDICIAL REVIEW IN THE UNITED STATES

It is submitted that the concept of Judicial Review have been borrowed from the US
Constitution10, so it is desirable to look upon the provision for Judicial Review in US where S
1 of Art III says that:

“The Judicial Power of the United States shall be vested in one Supreme Court and in
such inferior Courts as the Congress may from time to time ordain and establish. The
Judges, both of the supreme and inferior Courts, shall hold their Offices during good
behavior, and shall, at stated Times, receive for their Services a Compensation, which
shall not be diminished during their Continuance in Office.”

Further S 2 provides that: ‘The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority.’

The United States Supreme Court, in the famous case Marbury v Madison11, declared that it
had the jurisdiction to review the constitutionality of laws, even though the United States
Constitution does not explicitly provide that the US Supreme Court shall have the authority to
review the constitutionality of laws. Thus, for two centuries, the US Supreme Court has

8
Chairperson of the National Human Rights Commission of India and 39th Chief Justice of India.
9
Shri K G Balakrishnan, ‘Natural & Desirable Tension’ (Joint Conference of Chief Ministers and Chief
Justices, Vigyan Bhawan 8 April 2007) <http://www.outlookindia.com/printarticle.aspx?234306> assessed 2
November 2015.
10
United States Constitution, 1787.
11
5 US (1 Cranch) 137 (1803)
reviewed the constitutionality of laws, and in some instances, declared some of them
unconstitutional. It was held that, ‘If courts are to regard the Constitution, and the
Constitution is superior to any ordinary act of the legislature, the Constitution, and not such
ordinary act, must govern the case to which they both apply.’12

The argument against an unlimited amending power were based on the fear that if such power
were conceded, other fundamental rights, or valuable feature of the Constitution, would be in
peril. This argument was met, as it has always been met, by saying, in the words of the Privy
Council, that the fear of abuse of power was not an argument against its existence, 13 although
actual abuse of power would be struck down. 14 It was also pointed out that the possession of
power was one thing, its existence another. In theory, the British Parliament possessed the
power to repeal great charters of liberty like the Magna Carta15 (1215), the Bill of Rights16
(1689) and the Act of Settlement17 (1700) as easily as it could repeal a Dog Act, but these
great charters have remained unchanged.

A power to amend a rigid Constitution is a derivative power-derived from the constitution

and subject at least to the limitations imposed by the prescribed procedure.

The American Constitution provides for ‘due process of law’ against that of ‘procedure
established by law’ which is contained in Indian Constitution. The difference between the
two is, the ‘due process of law’ gives wide scope to the Supreme Court to grant protection to
the rights of its citizens. It can declare laws violative of these rights void not only on
substantive grounds of being unlawful, but also on procedural grounds of being unreasonable.
Our Supreme Court, while determining the constitutionality of law, however, examines only
the substantive question i.e. Whether the law within the powers of the authority concerned or
not. It is not expected to go into the question of its unreasonableness, suitability or policy
implications.18

12
Ibid
13
Bank of Toronto v Lambe (1887) 12 App Cas 575, 586; Att-Gen for Ontario v Att-Gen for Canada (1912) AC
571, 582.
14
Att-Gen for Alberta v Att-Gen for Canada (1939) AC 117
15
Latin for ‘Great Charter’.
16
An Act of the Parliament of England passed on 16 December 1689.
17
An Act of the Parliament of England that was passed in 1701 to settle the succession to the English and Irish
crowns.
18
Subhash C Kashyap, Our Constitution, National Book Trust, Third Edition, 2001, p.232
The exercise of wide power of judicial review by the American Supreme Court in the name
of ‘due process of law’ clause has made the critics to describe it as a ‘third chamber’ of the
legislature, a super-legislature, the arbiter of social policy and so on. This American principle
of judicial supremacy is also recognized in our constitutional system, but to a limited extent.
Nor do we fully follow the British Principle of Parliamentary supremacy. There are many
limitations on the sovereignty of Parliament in our country, like the written character of the
constitution, the fundamental Rights etc.

CONCLUSION

Thus, the judiciary plays an important role as custodian of the rights of the citizens. In a
federal Constitution, it has another important role of determining the limits of the powers of
the center and the state through judicial review. It is, therefore, necessary that the judiciary
should be independent and free from the influence of the executive.

JUDICIAL ACTIVISM- WHETHER OVERRIDING PARLIAMENTARY

SUPREMACY IN INDIA

INTRODUCTION
‘It is often found that courts do not realize their limits. Courts must realize that there are
many problems before the country, which courts cannot solve however much they like. What
stands out is his firm belief that courts cannot interfere with the government policy as a
matter of routine. Judicial Activism does not mean judicial adventurism. Judges should never
be activist as sometimes judicial activism is a useful adjunct to democracy.’

-Justice Markandey Katju19

“Judicial activism makes Supreme Court a co governor of the nation”

-Upendra Baxi

Judicial activism, by itself, is a necessary outcome of judicial independence and may be

lauded, especially when it is undertaken to protect those who may not otherwise have ready
access to justice. But quite apart from this, is another species of judicial activism where the
judiciary is also stepping into areas which are strictly speaking in the realm of policy… When
judicial activism and review wades into policy making, sometimes its consequences can be
disruptive. This needs to be avoided.

Judicial activism means expansion of judicial review in both administrative and legislative
domain. It is a facet of judicial review. It is to be said that judicial activism is an extension of
judicial review. The Constitution does not confer any authority or jurisdiction for activism as
such on the court. Judicial Activism is nothing more and nothing less than the activity to
bring justice to the door step of the people particularly in areas not covered by any statute
made by a legislature. It is an expression invented by jurists and lawyers to describe the
creative activity of judges in the fields not covered by any existing law.

MEANING OF JUDICIAL ACTIVISM

19
Markandey Katju, ‘’Lessons in judicial restraint’’, July 20, 2012, The Hindu.
According to Surya Deva, “Judicial Activism refers to the phenomenon of courts dealing with
those issues which they have traditionally not touched or which were in the contemplation of
the founding fathers.”20

According to Justice B.G Pal Shikhar, “Judicial Activism is an active interpretation of

existing legislation by a judge made with a view to enhance the utility of legislation for social
betterment”

THEORIES OF JUDICIAL ACTIVISM

Vaccum filling theory-the theory of vacuum filling implies that due to inaction or laziness of
any organ a power vacuum is created and other organs of the government start filling that
vacuum by expanding their horizons because power vacuum may cause disaster to a
democratic fabric.

Social want theory-theory of Social want implies that there is failure of the existing
legislation to cope up with the problems of society. Ultimately the judiciary responds to
knock of the poor for justice.

JUDICIAL ACTIVISM AND PIL IN INDIA

20
Surya Deva, “Who will Judge the Judges: A Critical Purview of Judicial Activism”, Delhi University Law
Journal, Vol. 1, 1997, pp. 30-40.
The history of Judicial Activism in India can be traced back to 1893, when Justice Mahmood
of the Allahabad High Court delivered a dissenting judgment which sowed the seed of
activism in India. It was a case of an under-trial who could not afford to engage a lawyer, so
the question was whether the court could decide by merely looking at his papers. Justice
Mahmood held that the pre-condition of the case ‘being heard’ as opposed to merely read
would be fulfilled only when somebody speaks.

Pubic interest litigation was innovated by judges to provide equal access to the
underprivileged section of the society. Seed of PIL was sown by Justice Krishna Iyer in the
historic case of Mumbai Kamghar Sabha vs. Abdul Bhai 21, and later on blossomed by Justice
Bhagwati in number of cases.

WHETHER JUDGES DO MAKE THE LAW

21
(1976) 3 SCC 832
‘We must do away with the childish fiction that law is not made by the judiciary'

-S. Mukharji J22

Prof. Gray goes to the extent of saying that judges alone are the makers of law as the law is
what the judges say. Speaking on the role of the judges President Roosevelt in his message to
the Congress said, ‘the chief law makers in our country may be and often are the judges
because they are the final seat authority’23

Legislation made by the Parliament is not the only source of law as under Article 13(3)(a),
judges make judicial law by declaring under Article 141 of the Constitution of India.

JUDICIAL LEGISLATION AND THE CRITICISM OF JUDICIAL ACTIVISM

‘If judges act like legislators or administrators it follows that judges should be elected like
legislators or selected and trained like administrators. This would be counterproductive.”

-Justice Katju24

Argument that judicial activism is born out of a phenomenon that when other institutions are
not doing their job, somebody has to fill the gap. It’s a flawed argument. It is flawed because
if any organ of the state is not doing its duty, it can be directed to do its duty. Usurpation of
power… by any other organ would never be the correct constitutional approach. What if the
same argument was used the other way round against the judiciary? Arrears are pending,
judges are not doing the job. So must somebody step in and now exercise that power? The
answer is no… And therefore, it’s extremely important that the dividing line on separation of
powers is maintained. And therefore, by creating arguments, the thin dividing line itself
cannot be lost. You probably (will) have a court saying where security forces are to be
deployed is something which I will decide.

Judicial activism has been extremely controversial from its very beginning. In the case of
Vineet Narain vs. Union of India25, the Supreme Court had invented a new writ called
“continuing mandamus” where it wanted to monitor the investigating agencies which were
guilty of inaction to proceed against persons holding high offices in the executive who had

22
Delhi Transport Corporation vs. D.T.C. Mazdoor Congress, AIR 1991 SC 101
23
Benjamin N. Cardozo, The Nature of the Judicial Process, Legal Legends series, Loisiana,
24
State Of U.P. & Ors vs. Jeet S. Bisht (2007) 6 SCC 586
25
1996 SCC (2) 199
committed offences. Furthermore, the Court created by its judicial order a body called the
Central Vigilance Commission, which was not contemplated by the statute (the Delhi Special
Police Establishment Act, 1946), for supervising the functioning of a statutory body, the
Central Bureau of Investigation. The Court also laid down a number of guidelines for the
appointments of chiefs of investigating agencies like Central Bureau of Investigation, Central
Vigilance Commission and the Enforcement Directorate; apart from the Chiefs of the State
Police. These guidelines, apart from being in relation to appointment, were also with regard
to their status, transfer and tenure, etc. The question arises whether this was legitimate
exercise of judicial power.

As further in the case of Supreme Court Advocates-on-Record Association vs. Union of

India26, the supreme evolved the collegium system for the appointment of Supreme Court and
High Court judges.

So opinions are divided in such a scenario as to whether an unelected body should exercise
such power, and whether in doing so has the right to supersede an elected legislature.

JUDICIAL ACCOUNTABILITY: WHO WILL JUDGE THE JUDGES IN INDIA?

“When we talk of ethics, the judges normally comment upon ethics among politicians,
students and professors and others. But I would say that for a judge too, ethics, not only
constitutional morality but even ethical morality, should be the base.”

-Mr. Justice S.H. Kapadia27

The fact that the powers of judges are very wide is in itself an indication that the powers may
not be allowed to be absolute. Among the constitutional limitations on the judges, the most
important one is the provision for ‘removal’ of judges of the High Court’s /Supreme Court by
address of the Houses of Parliament to the President on the ground of ‘proved misbehavior or
incapacity’. This is provided in Constitution of India, art. 124 (2) and (4) in respect of judges
of the Supreme Court and in view of art. 217, that procedure is attracted to the ‘removal’ of
judges of the High Court also.

26
AIR 1993 SC 1
27
Suman Meena, “Judicial Accountability”, November 20, 2011, Legal Service India. (retrieved from
http://www.legalservicesindia.com/article/article/judicial-accountability-in-india-538-1.html)
In pursuance of the provisions of Article 124(5) of the Constitution the Judges (Inquiry) Act,
1968 was enacted to regulate the procedure for investigation and proof of the “misbehavior”
or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of
an address by Parliament to the President and for matters connected therewith.

CONCLUSION

“Law is the command of the sovereign” said Austin, and since in England the sovereign was
Parliament, law was what was made by Parliament, not the Judges. Thus, the British Judges
were subservient to Parliament, and were not expected to be activist. The separation of
powers theory of the French writer Montesquieu said that law making was the job of the
legislature, and taking administrative and policy decisions was the job of the executive.
Judges were expected to be like a referee in a football match, who was only to see that the
rules were followed, but was not to himself take part in the match nor advise the players how
to play. The literal rule of interpretation was followed with particular emphasis in England,
since to depart from it would amount to thwarting the will of Parliament, which was supreme
in England’s unwritten Constitution.