CHAPTER-III

PLACE OF JUDICIAL REVIEW IN THE SCHEME OF THE

INDIAN CONSTITUTION

1 INTRODUCTION

Judicial review under the Constitution of India is of its own type, as the founding
fathers attempted to accommodate the Constitutional principles of several countries,
particularly those of U.K. and the U.S.A. According to D.D. Basu1 Judicial review in
India “Stands on a more solid footing because, it is not based on any judicial dogma, but
is provided for by the Constitution not only believed that ‘limited government’ was
essential to democracy, but enshrined in the Constitution itself the principle which Chief
Justice Marshal had to assume to be an essential attribute of limited government, namely,
that the limitation imposed by the Constitution upon the powers of the Legislatures must
be respected and that if the Legislature violates such limitations, its acts must be void.
This is expressly provided in Article 13 of our Constitution.”2 *M.P. Jain states that
“Unlike the U.S.A., the Constitution of India explicitly establishes the doctrine of judicial
review in several Articles, such as 13, 32, 131-136, 143, 226 and 246. The doctrine of
judicial review is thus firmly rooted in India, and has the explicit sanction of the
Constitution. Several Articles in the Constitution, such as articles 32, 137, 226 and 227,
guarantee judicial review of legislation and administrative action. It can be appreciated
that protection of the institution of judicial review is crucially inter-connected with the
protection of fundamental rights, for deprivity the courts of its power of judicial review
would be tantamount to making fundamental rights non-enforceable, “a mere adornment,
as they will become rights without remedy. In the absence of judicial reviews, the written
Constitution will be reduced to a collection of platitudes without any binding force.”4

The main source of judicial review is the Supreme Court’s competence to declare
the Constitutionality or otherwise of a legislative act on the anvil of the Constitution. In
addition, for smooth and efficient administration of the country, the founding fathers

1 D.D. Basu, Commentary on the Constitution of India, 6th Ed., Vol. A, S.C. Sarkar, Calcutta, 1973, P. 361.
2 Ibid
J M.P. Jain, Indian Constitutional Law, 5th Ed., Wadhwa, 2 003, p. 1831.
4 Id. at 1929

76
distributed the powers between the centre and the states under schedule VII of the
Constitution. The detailed scheme of the said schedule makes it obligatory for the centre
and the states to exercise their legislative authority within the allotted spheres5. In case of
a dispute on the jurisdiction of centre and the states, the Supreme Court is the final
arbiter.6 Furthermore, the Fundamental Rights provided in Part III of the Constitution,
with guaranteed provisions for their enforcement through the Supreme Court and High
Courts, invite judicial review decisively.7 The Supreme Court derives its power of
judicial review directly for Articles such as 13, 32, 246,248, 251, 372 etc.

As regards the Constitutional position on the judicial review in India, B.K.

Mukherjee succinctly describes it in these words :

The Constitution of India is a written Constitution and though it has adopted

many of the principles of English Parliamentary system, it has not accepted the
English doctrine of the absolute supremacy of Parliament in matters of legislation.
In this respect, it has followed the American Constitution and other systems
modelled on it. Notwithstanding the representative character of their political
institutions, the Americans regard the limitations imposed by their Constitution
upon the action of the Government, both legislative and executive, as essential to
the preservation of public and private rights. They serve as a check upon what has
been described as the despotism of the majority..... In India it is the Constitution
that is supreme and Parliament as well as state legislatures must not only act
within the limits of their respective legislative spheres as demarcated in the three
lists occurring in the Seventh Schedule to the Constitution, but Part III of the
Constitution guarantees to the citizen certain Fundamental Rights which the
legislative authority can on no account transgress. A statute or law to be valid,
must in all cases be in conformity with the Constitutional requirements and it is
for the judiciary to decide whether any enactment is unconstitutional or not.8

3 Article 246, Constitution of India

6 Article 131, Constitution of India
7 Article 32 and 226, Constitution of India
8 Mukerjee J., 1950, SCJ. 262, Quoted by M.U. Pylee, Constitutional Government in India, Bombay, 1977,
p. 537.

77
 The power of the Court to declare legislative enactments invalid is expressly
provided for in the Constitution under Article 13 which declares that every law in force
or every future law inconsistent with or in derogation of the Fundamental Rights shall be
void; and Article 32 vests in the Supreme Court the power to enforce these rights.
Articles 131 to 136, which deal with the jurisdiction of the Court, also expressly vest in
the Supreme Court the power to review the legislative enactments of the Union and the
States. Article 246, which deals with the nature of division of legislative powers between
the Union and the States, is also equally relevant in this context. But even in the absence
of some of these express provisions, the Court would have had the power of review.
Speaking about Article 13, Chief Justice Kania said : “The inclusion of Article 13 (1) and
(2) in the Constitution to be a matter of abundant caution. Even in their absence, if any of
the Fundamental Rights was infringed by any legislative enactment, the Court has always
the power to declare the enactment, to the extent it transgresses the limits, invalid. The
existence of Article 13(1) and (2) in the Constitution therefore is not material for the
decision of the question what Fundamental Right is given and to what extent it is
permitted to be abridged by the Constitution itself.”9

It is well known that the Constitution of India adopted the principle of the
Government being responsible to the Parliament from English System, but it also
subordinated all the three organs of the state namely, Parliament, The President and the
Judiciary to the Constitution. For, all of them have only such powers as are given to them
by the Constitution. It is interesting to see how precisely the courts are enabled to
determine the validity of statues passed by parliament or by a state legislatures by
examining whether they are in accordance with the Constitution. The source of such
judicial review of legislation is the existence of a fundamental law, namely, the
Constitution of India..10 It is well established and unchallenged fact that the Constitution
of India is the Supreme Law of the land. In order to uphold the dignity of the Supreme
Law of the land judiciary must strike down every provision which is in contravention to
the Articles of the Constitution. Thus judicial review is interposition of judicial restraint
on the legislative as well as executive organs of the Government.*11

9 A.K.. Gopalan v. State of Madras, AIR 1950 SC 27

10 V.S. Deshpande, “Judicial Review of Legislation”, Eastern Book Co.;Lucknow,1977, P. 52.
11 Rajan Dargan, “Judicial Review and Decision Making Process”, AIR 1999 (J) P. 227

78
 Khanna, J. has emphasized in Kesavanand Bharati v. State of Kerla12 “As long
as some fundamental rights exists and are a part of the Constitution, the power of judicial
review has also to be exercised with a view to see that the guamtees afforded by those
rights are not contravened .... Judicial review has thus become an integral part of the
Constitutional system.”13

Further Khanna, J. in the Fundamental Rights case14 has observed that “judicial
review is an integral part of our Constitutional system and a power has been rested in the
High Courts and Supreme Court to decide about the Constitutional validity of the
provisions of statutes. If the provisions of the statute are found to be violative of any of
the Articles of the Constitution which is the touchstone for the validity of ail laws the
Supreme Court and High Courts are empowered to strike down the said provision.”

Indian Supreme Court is probably the only court in the history of human kind to
have asserted the power of judicial review over amendments to the Constitution.15
Judicial review of Constitutional amendments is not generally permissible except on
procedural grounds or to present the violation of the express limitations mentioned in the
Constitution itself. Before 1967 even the Indian Supreme court had held that it had no
power to strike down Constitutional amendments on substantive grounds 16and therefore
could not exercise power of judicial review in this respect. It was only after the Golak
Nath case17 in 1967 that the Supreme Court assumed the power of judicial reviews of
Constitutional amendments.

The doctrine of judicial review has been taken to its pinnacle of glory in the
famous Kesavananda Bharati v. State of Kerla.18 In that historic and momentous
judgment, the Supreme Court held that while amending power under Article 368 is
comprehensive enough to cover the amendment of any. part of the Constitution including

12 (1973) 4 SCC 219

13 Ibid, See also Supra Note 3 at 1929
14 A.D.M. Jabalpur v. S. Shukla, (1976) 2 SCC 521
15 Prof. Upendra Baxi, “A Pigrim’s Progress : A Basic Structure Revisited”, Indian Bar Reviews, Special
Issue on Constitutionalism and Constitution of India, p. 53, quoted by R.R. Vadodaria, “Constitutional
crisis and Judicial Activism”, Indian Bar Review, Vol. 27 (1) 2000, p. 70
16 See, Shankari Prasad Singh v. Union of India, AIR 1951 SC 458; Sajjan Singh v. State of Rajasthan, AIR
1965 SC 845
17 Golak Nath v. State of Punjab, AIR 1976 SC 1643
18 Supra Note 12

79
the fundamental rights, the power could not be exercised so as to destroy those feature of
the Constitution which constitute its basic structure.

In Kesavananda19 while different judges identified different features as

constituting the basic feature of the Constitution, it is remarkable that the doctrine of
judicial review was not per se mentioned as one of the basic features of the Constitution.
In fact the doctrine of judicial review has been declared to be a basic feature of the
Constitution in Minerva Mills v. Union of India . In this case Bhagwati, J. has
observed : “The power of judicial review is an integral part of our Constitutional system
and without it, there will be no Government of Laws and the Rule of Law would become
a teasing illusion and a promise of unreality. I am of the view if there is one feature of our
Constitution which, more than any other, is basic and fundamental to the maintenance of
democracy and the Rule of Law, it is the power of judicial review and it is
unquestionably, to my mind, part of the basic structure of the Constitution.”21

In all the cases that have been decided by the Supreme Court subsequent to
Minerva22, wherein Constitutional amendments were tested on the ground of affecting the
basic structure of the Constitution, the Supreme Court struck down provisions of those
Constitutional amendments only on the ground of outer of judicial review of the Supreme
Court or of the High Courts.23 A nine Judge Bench of the Supreme Court in I.R. Coelho
v. State of Tamil Nadu,24 authoritatively laid down the ambit of basic structure doctrine
through a unanimous judgment. The court has established the pre-eminence of judicial
review of each and every part of the Constitution.

Two prominent Constitutional functionaries in 2007-08 expressed their concern

over the role played by the Indian judiciary. The dividing line between judicial activism
and overreach is a thin one .... a take over of the functions of another organ may, at
times, become a case of overreach, said the Prime Minister Dr. Man Mohan Singh while
the Lok Sabha Speaker, Speaker Somnath Chaterjee maintained, judiciary is not an

19 Ibid
20 AIR 1980 Sc 1789
21 Id at 1825 (Para 93)
22 Ibid
23 See, Sampath Kumar v. Union of India. AIR 1987 SC 386; Kihota Zachilla, (1992) Supp (2) SCC 651;
Subash v. Union of India AIR 1991 SC 631; Shri Kumar v. Union of India (1992) 2 SCC 428; L. Chandra
Kumar v. Union of India (1997) 3 SCC, 261.
24 2007 (2) SCC 1

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overriding authority and no organ has the right to emphasize power of another.25 These
assertions have, in the wake of several apex court rullings, striking down executive
decisions and parliamentary legislations - the latest being P.A. Inamdar v. State of
Maharastra where Supreme court struck down reservation in admission in private
unaided educational institute, schedule nine case27, Aravali Golf Club v. Chander
Hass28 and Raja Ram Pal v. Hon’ble Speaker, Lok Sabha29, encouraged another round
of discussion as regards judicial review under the Constitution.

The Supreme Court has authoritatively said in Ram Jawaya Kapoor v. State of
TO
Punjab , the strict doctrine of Separation of powers does not apply to our Constitution.
As to the judges attempting to ‘run the government’, our Constitution expects that elected
representatives will enact laws which would enables the executive to run the government.
When elected bodies and government perform these strictly governmental functions there
can be no reason and no occasion for interference by the courts. But it is when they don’t
so perform or perform badly, that an occasion arises for invocation of Articles 14 (the
equality clause) and Article 21 (the Life and liberty Clause) - contained in Part III of the
Fundamental Rights chapter of our Constitution. When these Articles are invoked by
individuals or groups, the judges who grant relief are not “running the government”; they
•y 1

are remedying acts of non-governance or mis-govemance. There is today a serious

imbalance upon the institutions, and the public expectations from the judiciary is scary. If
the situation is not repaired, a day will come when the people will feel let down by the
judiciary - the judges can only do so much, they cannot and will not run the
government.32 The Judiciary should act as a catalyst only to expedite the process of
eliminating executive inertia, but without itself involving in the actual administrative
process. In the circumstances, some degree of tension is natural and to some extent
desirable. However, friction can be avoided if each organ of the State correctly
understand, and respects the Constitutional functions of the other.

25 A.S. Srikanth, “In Defence of Judicial Review,” www.legal service India.com, last visited on 29/11/2008
26 (2005) 6 S.C.C. 537
27 Supra Note 24
28 (2008) 1 SCC 683
29 (2007) 3 SCC 184
30 AIR 1955 SC 549
31 Fali S. Nariman, “Are they like emperors ?”, Judges vs. Judges - A Tribune Debate, The Tribune, New
Delhi, Monday, December 17, 2007, p. 10
j2 Harsh Salve, “Make the Constitution a Living Reality”, Judges vs. Judges - A Tribune Debate, The
Tribune, New Delhi, Saturday, December 22, 2007, p. 10

81
2 THE FRAMING OF THE INDIAN CONSTITUTION AND
JUDICIAL REVIEW

The subjects that loomed largest in the minds of assembly members when framing
the judicial provisions were the independence of the courts and two closely related issues,
the powers of the Supreme Court and judicial Review. The assembly went to great
lengths to ensure that the courts would be independent, devoting more hours of debate to
this subject than to almost any other aspect of the provisions. If the beacon of the
judiciary was to remain bright, the courts must be above reproach, free from coercion and
from political influence.

Under the Government of India Act of 1935, the absence of a formal Bill of
Rights in the Constitutional document very effectively limited the scope of Judicial
Review power to an interpretation of the Act in the light of the division of power between
the Centre and the units. Under the present Constitution of India, the horizon of Judicial
Review was, in the logic of events and things, extended appreciably beyond a ‘formal’
interpretation of ‘federal’ provisions; the debates of the Constituent Assembly reveal,
beyond any dispute, that the Judiciary was contemplated ‘as an extension of the Rights’
and an ‘arm of the social revolution’.34 Judicial Review was, accordingly, desired to be
an essential condition for the successful implementation and enforcement of the
Fundamental Rights. Members of the Constituent Assembly were agreed upon one
fundamental point, that Judicial Review under the new Constitution of India was to have
a more direct basis than in Constitution of the U.S.A.,35 where the doctrine was more an
‘inferred’ than a ‘conferred’ power, and more ‘implicit’ than ‘expressed’ through
Constitutional provisions. In the Report of the Ad hoc Committee of the Supreme Court,
it was recommended that ‘a Supreme Court with jurisdiction to decide upon the
Constitutional validity of acts and laws can be regarded as a necessary implication of any
federal scheme.” This was eventually extended to an interpretation of the laws and
executive orders on the touchstone of the Fundamental Rights. In the Draft Constitution
of India, this power of Judicial Review in relation to Fundamental Rights found formal

j3 Granville Austin, The Indian Constitution, Oxford, 1966, p. 165.

34 Id at 164
35 Mushi Papers and Ayyar Papers, quoted by Granvile Austin, Supra Note 33 at 170-171

82
expression in Art, 8(2) and Art. 25 (1) & (2) which, when adopted by the nation’s
representatives in the Constituent Assembly on November 26, 1949, became the new
Arts, 13(2) and 32(1) & (2), respectively, under the Constitution of India. However, there
was a sharp controversy among the members of the Constituent Assembly over the
perpetually vexed question of reconciling the conflicting concepts of the individuals’
fundamental and basic rights and the socio-economic needs of the nation. These needs
were concretely expressed in the Preamble and the Directive Principles of State Policy,
and even though the Constitution became basically permeated with the philosophy of
individualism, an undercurrent, however slow and halting, of socialist pattern was clearly
discernible. A compromise had to be struck between the extreme viewpoints of the
proponents of the two schools, and Judicial Review, which was recognized as the basic
and indispensable precondition for safeguarding the rights and liberties of the individuals,
was sought to be tempered by the urge for building up a new society based on the concept
of welfare and social righteousness. The consequence was a drastic curtailment of the
power of Judicial Review of the Supreme Court of India. The overriding need for
‘security of the State’ consequent on the partition of India and its aftermath, and the
growing fissiparous and subversive tendencies merely provided further impetus to the
process and made it a fait accompli. What happened as a result was that the much debated
‘Due Process Clause’, which was previously inserted in the original Draft Constitution,
became the “first casualty”36, and was eliminated from the purview of the Right to
Personal Liberty and Property. In Art, 21 of the Constitution of India (Art, 15 of the Draft
Constitution), it was replaced by ‘except according to procedure established by law’, and
in Art, 31 (1) (Art, 24, el. 1 of the Draft Constitution), it was substituted by ‘save by
authority of law’. In the Note to Article 15 of the Draft Constitution, the Drafting
Committee justified the new insertion as being ‘more specific’, and referred to Art. XXXI
of the Japanese Constitution of 1946. But the real reason lay in the profound feeling of
distrust in the Judiciary and an apprehension, based mainly on American experience, that
an unbridled power pf judicial policy-making could usher in a series of ‘judicial
vagaries’, offset the governmental balance of power, thwart the cherished ambitions of
the framers (of the Constitution) and prevent the representative legislature from fulfilling

j6 Constituent Assembly Debates, Sept. 15, 1949, Vol. IX, p. 1501

83
its mission of assuming the leadership in the task of realisation of the national aspirations.
Simultaneously with this ‘new awakening’, a cluster of provisos was incorporated into
the Constitutional document so as to restrict the rights envisaged in Arts. 19, 21 and 31
and reduce the Supreme Court’s power of Judicial Review to one of ‘formal’ review. Lest
Judicial Review stood in the way of social and economic progress, the door was kept
wide open, through a comparative flexible amending procedure, the impose the ultimate
will of the popular representatives in the matter of removing Constitutional limitations.

In the bitter, long-drawn controversy between the concepts of the individuals’

rights and society’s needs, that characterised the deliberations of the Constituent
Assembly during the framing of the Chapters of ‘Fundamental Rights’ and ‘Judiciary’,
Judicial Review was so circumscribed as to become almost ineffective, if not wholly non­
existent. As one critic has put it, “The Assembly has created an idol and then fettered at
least one of its arms ... the limitations on the Court’s review power ... however ... were
drafted in the name of the social revolution”.37 During the discussions in the Constituent
Assembly on the adoption or rejection of the expression ‘due process of law’, differences
of opinion were visibly manifest, at least between two leading figures, namely, Shri K.M.
Munshi who wanted its adoption, and Shri Alladi Krishnaswami Ayyar who .opposed that
move.

Shri K.M. Munshi : Mr. Vice-President, Sir, I want to support amendment no.
528 which seeks to incorporate the words “without due process of law” in substitution of
the words “except according to procedure established by law”. In my humble opinion, if
the clause stood as it is, it would have no meaning at all, because if the procedure
prescribed by law were not followed by the courts, there would be the appeal court in
every case, to set things right. This clause would only have meaning if the courts could
examine not merely, that the conviction has been according to law or according to proper
procedure, but that the procedure as well as the substantive part of the law are such as
would be proper and justified by the circumstances of the case. We want to set up
democracy; the Hose has said it over and over again; and the essence of democracy is that
a balance must be struck between individual liberty on the one hand and social control on

37 Supra Note 33 at 174

84
the other. We must not forget that the majority in a legislature is more anxious to
establish social control. Eminent American Constitutional lawyers are agreed on the point
that no better scheme could have been evolved to strike a balance between the two. Of
course, as the House knows, lawyers delight to disagree and there is a certain volume of
opinion against it in America, but as pointed out by my honourable Friend, Mr. C.C.
Shah, we have made drastic changes in the American clause. The American clause says
that no person shall be deprived of his life, liberty or property without due process of law.
That clause created great difficulties with regard to laws relating to property. That word
has been omitted. The word ‘liberty’ was construed widely so as to cover liberty of
contract and that word has been qualified. This clause is now restricted to liberty of the
person, that is, nobody can be convicted, sent to jail or be sentenced to death without due
process of law. That is the narrow meaning of this clause which is now sought to be
on

incorporated by amendment no. 528.

Now, the question we have to consider, I submit, is only this. What are the
implications of this ‘due process’ ? ‘Due process’ is now confined to personal liberty.
This clause would enable the courts to examine not only the procedural part, the
jurisdiction of the court, the jurisdiction of the legislature, but also the substantive law.
When a law has been passed which entitles Government to take away the personal liberty
of an individual, the court will consider whether the law which has been passed is such as
is required by the exigencies of the case, therefore, as I said, the balance will be struck
between individual liberty and the social control. In the result, Governments will have to
go to the court of law and justify why a particular measure infringing the personal liberty
of the citizen has been imposed. As a matter of fact, the fear that in America the ‘due
process’ clause has upset legislative measures, is not correct. I have not got the figures
here, but I remember to have read it somewhere in over 90 per cent of the cases on the
-‘due process’ clause which have gone to the American courts, action of the legislatures
has been upheld. In such matters involving personal liberty Governments had to go
before the court and justify the need for passing the legislation under which the person
complaining was convicted. In a democracy it is necessary that there should be given an
opportunity to the Governments to vindicate the measures that they take. Apart from

j8 Constitutional Assembly Debates, Dec. 6, 1948, Vol. No. VII, pp. 851-852.

85
anything else, it is a wholesome thing that a Government is given an opportunity to
justify its action in a court of law.39

I know some Honourable Members have got a feeling that in view of the
emergent conditions in this country this clause may lead to disastrous consequences.
With great respect I have not been able to agree with this view, (Interruption). Take even
our Public Safety Acts in the provinces. In view of the condition in the country they
would certainly be upheld by the court of law and even if one out of several acts is not
upheld, even then, I am sure, nothing is going to happen. Human ingenuity supported by
the legislature and assisted by the able lawyers of each province will be sufficient to
legislate in such a manner that law and order could be maintained.40

Therefore, my submission is that the clause is necessary for the purpose and is not
likely to be abused. We have, unfortunately, in this country legislatures with large
majorities, facing very severe problems, and naturally, there is a tendency to pass
legislation in a hurry which give sweeping powers to the executive and the police. Now,
there will be no deterrent if these legislations are not examined by a court of law. For
instance, I read the other day that there is going to be a legislation, or there is already a
legislation, in one province in India which denies to the accused the assistance of lawyer.
How is that going to be checked ? In another province, I read that the certificate or report
of an executive authority - mind you it is not a Secretary of a Government, but a
subordinate executive - is conclusive evidence of a fact. This creates tremendous
difficulties for the accursed and I think, as I have submitted, there must be some agency
in a democracy which strikes a balance between individual liberty and social control.41

Our emergency at the moment has perhaps led as to forget that if we do not give
that scope to individual liberty, and give it the protection of the courts, we will create a
tradition which will ultimately destroy even whatever little of personal liberty which
exists in this country. I therefore submit, Sir, that this amendment should be accepted.42

39 Ibid
40 Ibid
41 Id at 853
42 Ibid

86
 Shri Alladi Krishnaswami Ayyar (Madras : General) : Mr. Vice-President, Sir,
the debate on this article reveals that there seems to be a leaning on the part of a good
number of members in this House in favour of the expression “due process” being
retained and not for substituting the expression ‘procedure established by law’, which is
the expression suggested by the Drafting Committee in its last stage. I am using the
words ‘in its last stage’ because my honourable Friend Mr. Munshi has taken the opposite
view. 43
•

Sir, at least in justification of the change suggested by the Drafting Committee, I

owe it to myself, to my colleagues and the respected Chairman of the Drafting
Committee, to say a few words, because, up to the last moment, presumably, the House is
• • 44
open to conviction.

The expression ‘due process’ itself as interpreted by the English Judges connoted
merely the due course of legal proceeding according to the rules and forms established
for the protection of rights, and a fair trial in a court of justice according to the modes of
proceeding applicable to the case. Possibly, if the expression has been understood
according to its original content and according to the interpretation of English Judges,
there might be no difficulty at all. The expression, however, as developed in the United
States Supreme Court, has acquired a different meaning and import in a long course of
American judicial decisions. Today, according to Professor Willis, the expression means,
what the Supreme Court says what it means in any particular case. It is just possible,
some ardent democrats may have a great faith in the judiciary than in the conscious will
expressed through the enactment of a popular legislature. Three gentlemen, sitting as a
court of law, and stating what exactly is due process according to them is an particular
case, after listening to long discourses and arguments of briefed counsel on either side,
may appeal to certain democrats more than the expressed wishes of the legislature or the
action of an executive responsible to the legislature. In the development of the doctrine of
‘due process’, the United States Supreme Court has not adopted a consistent view at all
and the decisions are conflicting. One decision very often reversed another decision. I
would challenge any member of the Bar with a deep knowledge of the cases in the United

44 Ibid

87
States Supreme Court to say that there is anything like uniformity in regard to the
interpretation of ‘due process’. One has only to take the index in the Law Reports
Annotated Edition for fifteen years and compare the decisions of one year with the
decisions of another year and he will come to the conclusion that it has no definite
import. It all depended upon the particular Judges that presided on the occasion. Justice
Holmes took a view favourable to social control. There were other Judges of a Tory
complexion who took a strong view in favour of individual liberty and private property.
There is no sort of uniformity at all in the decisions of United States Supreme Court.45

Some of my honourable Friends have spoken as if it merely applied to cases of

detention and imprisonment. The Minimum Wage Law or a Restraint on Employment
have in some cases been regarded as an invasion of personal liberty and freedom, by the
United States Supreme Court in its earlier decisions the theory being that it is an essential
part of personal liberty that every person in the world be she a woman, be he a child over
fourteen years of age, or be he a labourer, has the right to enter into any contract he or she
liked and it is not the province of other people to interfere with that liberty. On that
ground, in the earlier decisions of the Supreme Court it has been held that the Minimum
Wage Laws are invalid as invading personal liberty. In recent times I quite realise, after
the New Deal, the swing of the pendulum has been other way. Even there, there has not
been any consistency or any uniformity. I hope that if this amendment is carried, in the
interpretation of this clause our Supreme Court will not follow American precedence
especially in the earlier stages but will mould the interpretation to suit the conditions of
India and the progress and well-being of the country. This clause may serve as a great
handicap for all social legislation, for the ultimate relationship between employer and
labour, for the protection of children, and for the protection of women. It may prove
fairly alright if only the Judges move with the times and bring to bear their wisdom on
particular issues. But since the British days we have inherited a kind of faith in lawyers,
legal arguments, legal consultations and in courts; I, for my part, having flourished in the
law, have no quarrel with those people who believe in the lawyer. In the earlier stages of
American history, lawyers ranged themselves on the side of great Trusts and Combines
and in favour of Corporations who were in a position to fee them very well, sometimes in

88
the name of protection of property. After all the word ‘personal liberty’ has not the same
content and meaning as is imported into it by some of our friends who naturally feel very
sensitive about people being detained without a proper trial. I equally feel it but that is
but that is not the meaning of personal liberty that the House will take into account the
various aspects of this question, the future progress of India, the well-being and the
security of the States, the necessity of maintaining a minimum of liberty, the need for
coordinating social control and personal liberty, before coming to a decision. One thing
also will have to be taken into account, viz., that the security of the State is far from being
so secure as we are imagining at present. Take for example the normal detention cases. I
may tell you as a lawyer, I am against the man being detained without his being given an
opportunity; but an opportunity is not necessarily given in a court of law, as a result of
argument, as a result of evidence, as a result of examination or cross-examination. Today
I know in Madras a Special Committee has been appointed consisting of a Judge of the
High Court, the Advocate-General of Madras and another person to go into the cases of
detention and to find out whether there are proper materials or not. Now all these cases
might have to go to Courts of law and possibly it is a good thing for lawyers. Though I
am getting old I do not despair of taking part in those contests even in the future.46

The support which the amendment has received reveals the great faith which the
Legislature and Constitution makers have in the Judiciary of the land. The Drafting
Committee in suggesting “procedure” for “due process of law” was possibly guilty of
being apprehensive of judicial vagaries in the monlding of law. The Drafting has made
the suggestion and it is ultimately for the House to the conclusion whether that is correct,
taking into consideration the security of the State, the need for the liberty of the
individual and the harmony between the two. I am still open to conviction and if other
arguments are forthcoming I might be influenced to come to a different conclusion.47

Dr. Ambedkar, coming to explain the viewpoint of the framers, said that expression
raised the question of relationship between the legislature and the judiciary, and that it
would give the judiciary an additional power to question the law made by the legislature
on the ground whether the law was in keeping with certain fundamental principles

46 Id at 854
47 Ibid

89
relating to the rights of an individual, and whether the law was a good law. While
admitting that the legislature could be “packed by part)' men making laws which may
abrogate or violate.... certain fundamental principles affecting the life or liberty of an
individual”, he could not see how “five or six gentlemen in the Federal of Supreme Court
examining laws made by the legislature can by dint of their own individual conscience or
their bias or their prejudice be trusted to determine which law is good and which law is
bad.”48 It was, he pointed out, “rather a case where a man has to sail between Charybdis
and Scylla’49. While Dr. Ambedkar could not commit himself to either of the two sides,
he had enough influence and support to carry the House which rejected the amendment
moved by Pandit Thakurdas Bhargava and adopted the article as drafted by the
Drafting Committee.

Thus, to all intents and purposes, the dominant temper of the deliberations in the
Constituent Assembly was one of the deliberations in the Constituent Assembly was one
of great confidence in the popular legislature and considerable distrust in the ‘judicial
vagaries’50 if the Courts were to be endowed with the same all-pervasive power of
Judicial Review as in the U.S.A. A conception of individual rights, constituting inherent
limitations on governmental powers, was discouraged by vesting the Parliament with the
power of amending the Fundamental Rights. The Constituent Assembly was evidently
keen on preventing Judicial Review from becoming an instrument of judicial policy
making and thereby upsetting governmental balance of power. Limitations to Judicial
Review were thus placed in such a way that the Indian Supreme Court could never hope
to equal its American counterpart. It seems that, at times, members were almost haunted
by an imaginary ghost of judicial activism transplanted from the far-off America. It was
almost an obsession which was inexplicable. The net effect, however, was that, in spite of
a federal structure and a justiciable set of fundamental rights necessitating judicial
surveillance of laws judicial safeguarding of the sanctity of the Constitution, the
American doctrine of Judicial Review was deliberately sacrificed at the altar of
parliamentary supremacy, albeit within a limited area. It was not exactly a compromise,

48
Constituent Assembly Debates, Dec. 13,1948, pp. 1000-1001
49
Ibid
50
Per A.K. Ayyar, Constituent Assembly Debates, Vol. II, p. 209

90
for it was heavily tilted in favour of one party rather than the other, and the balance of
advantage lay clearly on the side of the popular representative organ, the Parliament.

Thus, for all practical purposes, a poor effort at compromise between the twin
principles of legislative omnipotence and judicial supremacy resulted in a crippled and
truncated power of Judicial Review being pitted against a hyper-sensitive political
leadership bent on exercising supreme power within the framework of a written
Constitution with defined action-areas. To all intents and purposes, therefore, the seed of
discord between the legislators and the judges in India was sown by the fathers of the
Constitution, who were themselves not very clear about their own task. True, as D.
D.Basu points out, “the factors which fostered the growth of judicial supremacy in the
U.S. are either absent or are not so much prominent in our Constitutional system”.51

3 THEORETICAL BASIS OF JUDICIAL REVIEW

India achieved independence on 15 th August 1947 after a long political struggle in
which a number of patriots laid down their lives and countless suffered to secure self-
government. But self-government in itself was not the end. It was means to an end. They
struggled and suffered to merely not be ruled by their chosen representatives in place of
foreign rulers, but to achieve basic human rights and freedom, to secure social, political
and economic justice so as to build a welfare State from which poverty, ignorance and
disease could be banished and to lay the foundation of a strong independent Republic
which commanded the respect of the world. The fathers of this new Republic thus wanted
a State ruled by law and not by men, for history had taught them a bitter lesson that men
must never be given the power over other men and no nation can truly call it’s self a
democracy were the individual is not his own master. They set to work embarking on a
Sisyphean task. Framing a Constitution for a country divided by history, religion,
language, mountains, rivers, monarchs, colonists, time, one might almost say the
almighty. They set to integrate a land of snake charmers, poets, philosophers, tyrants, rich
and the fabulously rich, poor and the desperately poor. A land were Hindus and Muslims
were to live as good neighbours without fences, as they have never lived anywhere in any

51 D.D. Basu, Commentary on the Constitution of India, 5th Ed., Vol. 1, P. 160

91
part of the world in any given period. Good fences don’t make good neighbours in our
part of the world.

Nay, not only poets, but all men are dreamers, but those that dream with their eyes
open are the most dangerous. The constituent assembly gave unto the people of India on
the 26th day of January 1950, the Constitution of the Sovereign, Socialist, Secular,
Democratic Republic of India.52 One that promised to transform wilderness into paradise.
It is this Constitution that the mechanism of judicial review guards, against
encroachments on the Constitution’s integrity and basic structure, the ideals that form the
essence of our democratic State and those freedoms which form the sixth element in the
humans body, without which man is no better than a piece of furniture, those rights which
cannot be given to him, but are his by virtue of his being a man, rights who’s premise is
found in the human mind. These rights the Constitutions enshrines in a civilized society
and the judicial review is commissioned to guard, rights though as essential as the air that
we breath, valued by men just as trivially.

A) DHARMA : CLASSICAL ORIENTATION TO PRESENT DAY

CONSTITUTIONALISM

Dharma is a Sanskrit expression derived from the word % i.e., root which has

been declared by Rishis to mean that which sustains (i.e. to preserve, to observe, to
promote, to retain) is Dharma. There is no corresponding word to Dharma in English or
any other language. It is not synonymous with religion, nor with State, nor with
government. Though it is difficult to define Dharma, but in the following sayings the
entire concept of “State of Dharma” is incorporated and is utmost importance and
significance.”53

Wttl -gf^r I

52 Words Socialist and Secular were inserted by Section 2(a) of The Constitution (Forth - Second
Amendment) Act, 1976.
53 (1) Taiffiriyopanishat; (2) Manu Smriti, VIII-15, Mahabharatata, Shanti Parva, quoted by M. Rama Jois,
Legal and Constitutional History of India, Vol. 1, PP. 3,4, 8, 9

92
 dEHlrf T ^&q\ ^Ht I#5W 11

Dharma is the foundation of all affairs in the world; law is the foundation of
universe; it is justice (Nyaya), royal edict (Rajashasana), legal system (Vyavahara
Dharamasastra), State (Rajayadharma), Constitutional law (Rajadharma), Rule of Law
(Dharmarajya). So, Dharma protects those who protect it. People respect one who
adheres to Dharma. Dharma insulates man against sinful thoughts and actions.
Everything in this world is founded on Dharma. Dharma, therefore, is considered
supreme. Dharma is that which sustains and ensures progress and welfare of all; it is
promulgated in the form of commands; it is for the welfare and happiness of the people
and the State (here ruler) was entrusted with the responsibility of enforcing Dharma in
pursuit of human happiness; it ensures the upliftment of living beings (this is social
justice). All the works on Dharma, therefore, prescribed rules of right conduct,
observance of which was considered necessary for the welfare, peace and happiness of
the individual and the society which meant to sustain the life of the individual and the
society. It conveys the concept of Rule of Law, i.e., an orderly society would be in
existence if everyone acts according to Dharma and thereby protect Dharma, and such an
orderly society, in turn, protects the right of individuals. Thus, in this perspective it is
more akin to duty or obligation; it is duty first and then right. It is believed that there
were no legal proceedings when people were habitually veracious, but as the standard of
behaviour declined, the system of legal proceedings for enforcement of rights and
punishment of wrongs was established and the ruler was appointed to decide law suits as
he has the power to enforce the law and punish the wrong doer. It is at this stage of the
evolution of human society in India when positive civil and criminal law, including the
law regulating the establishment of courts, their powers, functions and procedure, as part
of Dharma, was laid down which marks the commencement of its legal and

93
Constitutional history. Consequent on the creation of kingship and the system of legal
proceedings, the positive civil and criminal law, as also the law regulating the
Constitution and organisation of State (Rajya), the duties and powers of kings were laid
down as part of Dharma and came to be known as Vyavaharadharma and Rajadharma
respectively. Therefore, though the word Dharma has such wide meaning as to cover
rules concerning all matters, such as spiritual, moral personal, and also civil, criminal and
Constitutional law, it gives the precise and concise meaning depending upon the context
in which it is used. For example, when Dharma is used in the context of duties and
powers of the ruler, it means Constitutional law (Rajadharma); when it is said that
Dharamrajya is necessary for the peace and prosperity of the people and for establishing
an egalitarian society, the word Dharma in the context of the word Rajya means law, and
Dharmarajya means rule of law and not rule of religion or a theocratic State. The
expression Dharma means Vyavaharadharma and Rajadharama binding both on the ruler
and the ruled and it is used in this sense while discussing Constitutional law and
administrative process. Against this backdrop, it seems that trinity of justice enjoined in
the Constitution of India is entrenched to the concept of Dharma Justice, Liberty,
Equality to promoting Fraternity assuring the dignity of the individual and the unity and
integrity of the (Indian) Nation. Supremacy of the Constitution of India as law and the
authority of the Supreme Court to enforce it is the Constitutional theory; judicial review
is, therefore, a key as well as crowning element under the Constitution of India to restrain
the arbitrary exercise of governmental power.54

B) METAPHYSICS OF JUDICIAL REVIEW

Power corrupts and absolute power corrupts absolutely which ultimately leads to
chaos, anarchy and tyranny has been sufficiently established in the course of evolution of
human history. The famous doctrine of Montensqueu (Seperation of powers) was the
outcomes of his obvious desire to put an end on absolute and uncontrolled power in one
organ of the Government. It is by balancing each of these powers against the others the
effort in human nature towards tyranny can alone be checked and restrained and any
freedom preserved in the Constitution. The assumption that there is a Supreme law which

54 K.L. Bhatia, Judicial Review and Judicial Activism, Deep & Deep Publications, New Delhi, 1997, p. 4.

94
constitutes the foundation and source of all other legislative authorities, proceeds that 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.55

C) POLITICAL THEORY OF JUDICIAL REVIEW

The power of judicial review of legislation is given to the Judiciary both by the
political theory and the text of the Constitution. In political theory the Constitution was
the result of an expression of the general will of the Indian community as a whole. It is
the law which governs the State established by the Constitution in India. This is
Constitutional law. It is distinguished from the law which is made by the state which we
may call the ordinary law. Constitution is the parent of the state while the ordinary law is
child of the State. The sanction of the ordinary law is clear. It is the state which makes it
and which enforces it. But what is the sanction behind the Constitution which is binding
on the State itself ?

“This is the problem of the Constitutional law which the older theory of State
sovereignty ignored or failed to solve”.36 The problem is solved in the Constitutional
democracies like the United States and India - by the willingness of the State to be bound
by the Constitution which has brought the State into being. The State is bound by the
Constitution to secure the objectives which it has set before itself under the Constitution.
For this purpose, the State has denied to itself certain exercises of powers and has bound
itself to observe certain restrictions on its part. This is also the theory behind the working
of International law among the States. But the sanction behind International law is
precarious because the willingness of the States to respect the restraints laid upon
themselves cannot be enforced. The Constitutional law differs from the International law
by making a distinction between the State and the Government. The Constitution divides
the State into the different departments of the Legislature, Executive and the Judiciary.
The Government consists of the Legislature and the Executive. The Constitutional law
which creates the States is binding and enforceable against the Government. It is well

55 Supra No. 1 at 349

56 Me Iver, The Modern State, p. 274, quoted by V.S. Deshpande, Judicial Review of legislation, 1977, p.
49.

95
recognized in the Constitutional democracies that the Government has only a lease of
authority or a kind of trusteeship which is revocable while the Government functions
under the Constitution. “This sense of dependence on a greater will, the will of the
people, is so strong and so well assured in modem States that Constitutional law does not
need - nor in fact can it have - any other sanction”.57 This is why the Preamble to the
Constitution of India begins with the words “We the people of India” and ends with the
words “do hereby adopt, enact and give to ourselves this Constitution”. As I had occasion
to point out elsewhere, these words are the key to the understanding not only of the
Preamble but of the whole of the Constitution. Firstly, they harp back to the basis of a
democratic State beginning with the theory of Social Contract. Secondly, the emphasis on
the involvement of the people as a whole in the Constitution operates as a warning
against the monopolisation of the interpretation of the Constitution and the statutes made
there under by the elite groups such as the lawyers, judges, the legislators and the
politicians. Thirdly, the words “We the people” signify not only the people of India who
existed on January 26, 1950 but the people of India as a continual and eternal entity.
Lastly, these words bring out the identity of the interpreters of the Constitution with the
people as a whole.58

The Judiciary is the guardian appointed by the Constitution to ensure the

Constitution against the Government, namely, the Legislature and the Executive. That is
why, rights are guaranteed to the individual in Part III of the Constitution only against the
Legislature and the Executive including local and other authorities. That is also the
reason why the Directive Principles of State Policy in Part IV of the Constitution are
made morally binding on the Legislature and the Executive. The Judiciary stands outside
the Government under Part III and Part IV of the Constitution so that it may be able to
enforce not only the Fundamental Rights in Part III of the Constitution but also the
legislation enacted in pursuance of Part IV of the Constitution. The discharge of this
judicial function is ensured by the fact that the Judiciary is a part of the State in the larger
sense in Parts V and VI of the Constitution but is not a part of State in the narrower sense
in Parts III and IV of the Constitution. The Government functions by enacting laws and

57 Ibid
58 V.S. Deshpande, “People and the Constitution”, (1974) 16 Indian Law Institute Journal, P. 1

96
taking administrative action. The legal control of the Government by the Courts,
therefore, takes the form of subjecting the legislative and administrative action of the
Government to the supremacy of the Constitution.

D) JUDICIAL REVIEW : INHERENT IN A WRITTEN AND FEDERAL

CONSTITUTION

It is generally believed that power of judicial review is inherent in a written

Constitution. This opinion seems to get its emphatic assertion in the judgment of
Marbury V. Madison 59in which Chief Justice Marshah uttered :

“The Constitution is either a 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.

If the former part of the alternative be true, then a legislative act contrary to the
Constitution is not law : if the latter part be true, then written Constitution are absurd
attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have , 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.

This theory is essentially attached to a written Constitution, and is consequently to

be considered by this court as one of the fundamental principles of our society. It is not
therefore to be lost sight of in the further consideration of this subject.”

Similarly, M.P. Jain holds that “In the absence of judicial review, the written
Constitution will be reduced to a collection of platitute without any binding force”.60

But expert opinion on this matter seems to be that what is of essence in Marshall’s
judgment is the emphasis, direct or indirect, on the supremacy of the Constitution. In fact,
Marshall’s interpretation was not received favourably at that time and has been
challenged since. The written nature of a Constitution is, in the opinion of Prof. Dicey,

59 5 U.S. 137 (Cranch), 2 L.Ed. 60 (1803)

60 Supra No. 3.

97
one of the consequences of Constitutional supremacy, and is supposed to be no deeper
than a political expediency.61 That written Constitutions with defined limitations do not
inevitably require Judicial Review is apparent since a majority of the countries of the
world which have written Constitutions do not allow their courts to exercise this
extraordinary power. This claim, therefore, seems to be disproved by the experience of
countries with written Constitutions. As Prof. Corwin puts it, “While the written
Constitution is nowadays an almost universal feature of popular government, Judicial
Review is encountered much less frequently’.62 Thus, Judicial Review, at least in the
sense in which it has developed in the U.S.A., is an implied, not a substantive, power. It
is commonly implied, as in the U.S.A., from the Supreme Court’s judicial power to
interpret law and decide cases. But at the same time, it is to be borne in mind that this
power, even in the country of its modem origin and development, is not necessarily
related to or derived from the ordinary judicial function of law-enforcement. “That a
court called upon to interpret and apply a statute is under no compulsion of logic to ask
first whether the statute is valid in terms of some higher Constitutional law must, of
course, be admitted in view of the fact that the courts in many countries possess no such
additional power”.63

In so far as the written Constitution is a law, it must be enforceable through the

Courts which exist to apply and enforce the law through justiciable cases or controversies
which are brought it for adjudication.

Every Constitution, it is common place, has various aspects. Firstly, it is a

historical product. Secondly, it expresses the philosophy of its makers, sociological,
political or economic. Thirdly, it is a political institution for the good governance of the
country and seeks to make an adjustment between the political operating in the body
politic. It is natural, thus, that when any problem arises in the relationship between the
different organs, the non-judicial branches would try to solve it politically, rather than
presenting it before a coordinate third branch, namely, the Judiciary.

61 A.V. Dicey, Introduction to the study of the law of the constitution, 10th Ed., P. Ill
62 E.S. Corwin, Encyclopedia of the social sciences, Vol. 8, P. 511
63 R.K. Carr, The Supreme Court and Judicial Review, P. 23

98
 But the Constitution also deals with the relationship between the individual and
the State, and, when an individual is aggrieved by the act of any of the organs of the
government, he would prefer to seek his remedy through litigation before the Courts
which is the normal avenue for adjudicating legal disputes. It is here that the fourth aspect
of the Constitution matters, namely, its legal character. Had it been a mere political or
philosophical essay, the Courts would have been powerless to grant any relief to anybody
who complains of the infringement of its provisions to his detriment. This legal aspect
was emphasised by the American Supreme Court in the Marbury’s case and India has
adopted that precedent by engrafting specific provisions in the Constitution, such as Arts.
13, 254 (1), 367 (l).64

It should be pointed out in the present context that any impression that judicial
review is an inevitable concomitant of a written Constitution or even of a Bill of Rights
not would be correct. There have been Constitutions, which have adopted solemn
declarations as to the Rights of Man and yet failed to confer upon the Judiciary the power
to annual laws on the ground of contravention of any part of such Constitution.65

a) France - The foremost instance to the point is France where, not-withstanding

the fact that successive Constitutions have affirmed the revolutionary Declaration of the
Rights of Man of 1789, courts have no jurisdiction to annual laws on the ground of
violation of the Rights of Man so declared. As we shall see presently, if any question of
unconstitutionality of a law arises, the President may obtain the advice of a non-judicial
organ, named the Constitutional Council [Art 61, Constitution of the Fifth Republic], but
citizens have no right to appeal to it and its decisions are not enforceable against the
State.66

b) Canada - A notable modern example of a country adopting a Bill of Right

without a full-fledged judicial review is Canada. The Canadian Parliament has, an
ordinary statute of 1960 (The Canadian Bill of Rights), declared “the human rights and
fundamental freedoms” which “have existed and shall continue to exist” in Canada. But,
as s. 2 of this Bill of Rights itself says, the only effect of this solemn declaration is that

64 D.D.Basu,Comparative constitutional law,Prentice Hall of India: New Delhi,1984,p.170

65 Supra No. 1 at 351
66 Ibid

99
Acts passed by the Parliament of Canada “shall be so construed and applied as r
abrogate, abridge or infringe ... any of the rights or freedoms herein recognizee
declared.”

The Constitution of Canada or Australia does not contain any ex

provision for judicial review, yet the process goes on and judicial review has becon
integral part of the Constitutional process. The historical origin of judicial review in 1
countries is traceable to the colonial era. The colonial legislatures were regarde
subordinate legislatures vis-a-vis the British Parliament and they had to function w
the parameters of the statutes enacted by the British Parliament. The colonial laws v
therefore, subject to judicial review, and this process continued long after, the cole
ripended into self-governing dominious. The doctrine of judicial review was
ingrained into the legal fabric of Canada and Australia and, therefore, no need was fe
include a specific Constitutional provision in the basic laws of these countries.67

In Switzerland, curiously, though there is a Federal Tribunal or Supreme C

for the federation, it has been given no power to declare any law passed by the Fee
legislature as unconstitutional. Even though it has jurisdiction to determine conf
between the Federation and the Cantons, it is enjoined by the Constitution (Art 113'
give effect to the laws passed by the Federal Assembly”. So, whether the rights of
individual or of a Canton are encroached upon a federal law, the Federal Tribun:
powerless to annul a federal law. The only reason why the people of Switzerland ma
said to have tolerated this apparently anomalous position is that the Constitution give
the people themselves the power to restrain unconstitutional legislation; immedk
after a Bill passed by the federal Legislature is published, 30,000 citizens may den
that the Bill be submitted to a referendum of the people and if it is rejected at
referendum, it fails to become law. The device of a referendum or any other sin
device of direct democracy is, however, unworkable in big countries like the Ur
States or India. Hence, the Swiss precedent has not been welcomed by any other moi
State, as a substitute for judicial review.68

67 Supra No. 3 at 1821

68 Supra n. 1 at 355.
 A written Constitution is not a self-executing document, and meanings of several
provisions may not always be self-evident. Such a Constitution would be reduced to a
mere paper document in the absence of an independent organ to interpret, expound and
enforce the same. The power of Constitutional review by some organ of government is
implicit in the concept of a written Constitution which seeks to confer limited powers. In
the absence of an accepted authority to interpret the Constitution, a written Constitution
would promote discord rather than order in society when different organs of government
take conflicting action in the name of the Constitution, or when government takes action
against the individual.69

4 TEXTUAL BASIS OF JUDICIAL REVIEW

It is well known that the Constitution of India adopted the principle of the
Government being responsible to the Parliament from the English system; but it also
subordinated all the three organs of the State, namely, Parliament, the President and the
Judiciary, to the Constitution. For, all of them have only such powers as are given to
them by the Constitution. It is interesting to see how precisely the Courts are enabled to
determine the validity of statutes passed by the Parliament or by the State Legislatures by
examining whether they are in accordance with the Constitution. The source of such
judicial review of legislation is the existence of a fundamental law, namely, the
Constitution of India. When India and other dominions and colonies were ruled by the
Government of United Kingdom the fundamental law for the non-sovereign countries of
the Commonwealth consisted of legislation by the British Parliament. Statutes passed by
dominion or colonial Legislature had to yield place to the statutes passed by British
Parliament to the extent of any repugnancy between them. To the extent of the
repugnancy, the statutes passed by the non-sovereign Legislatures were ultra vires. It is
this concept of ultra vires which familiarised the people of the American colonies and of
the Commonwealth countries with the idea that even legislation made by the national
Legislature of an independent country could be made subordinate to a fundamental law
which may be established in the form of a written Constitution. The doctrine of judicial
review of legislation did not therefore, come as too great an innovation.70

69 Supra No. 3 at 1824

70 Me Whinney, Judicial Review, 4th Ed,, P. 13, quoted by U.S. Deshpande, Judicial Review of Legislation,
PP. 52-53.

101
A) JUDICIAL REVIEW HAS EXPLICIT SANCTION OF THE
CONSTITUTION

As per M.P.Jain, Unlike the USA, the Constitution of India explicitly establishes
the doctrine of Judicial review in several articles, such as 13, 32, 131-136, 143, 221 and
246. The doctrine of judicial review is thus firmly rooted in India has the explicit sanction
71
of the Constitution.

According to D.D.Basu, Judicial review stands on a more solid footing in our

country than in U.S.A. because, it is not based on any judicial dogma, but is provided for
by the Constitution itself. The Fathers of our Constitution not only believed that ‘limited
government’ was essential to democracy, but enshrined in the Constitution itself the
principle which Chief Justice Marshal had to assume to be an essential attribute of limited
government, namely, that the limitations imposed by the Constitution upon the powers of
the Legislature must be respected and that if the Legislature violates such limitations, its
77
acts must be void. This is expressly provided in Art. 13 of our Constitution.

A discussion as to the need for and justification of judicial review is indeed

academic in India, inasmuch as the Constitutions has several express provisions
empowering the Courts to declare a law to be void when it offends against the
Fundamental Rights [Art. 13], or the federal distribution of powers [Art. 254], That the
power to declare a statute to be unconstitutional will belong to the Judiciary is next made
clear by providing in Art. 367, that the Constitution is to be interpreted as a legal
instrument and that questions as to interpretation of the Constitution will be dealt with by
the High Court at the primary level and then by the Supreme Court on appeal [Arts. 226,
228, 132]. A petition for the same purpose, on the ground of contravention of a
7T
fundamental right can also be directly brought before the Supreme Court, under Art 32.

But it cannot be supposed that the scope of judicial review, in India, is confined to
the area delineated by the two Articles which use the word ‘void’ with respect to laws
which are inconsistent with the Constitution, namely, Art. 13 (2) and Art 254 (1). Art 13

71
Supra No. 3 at 1830,
72
Supra n. 1 at 361
73
Ibid

102
(2) refers to laws violative of fundamental rights and Art 254 (1) speaks of the
repugnancy of a State law to a Union law in the Concurrent legislative sphere.74

As was observed by Kania C.J. in the early case of Gopalan75, “The inclusion of
Art 13(1) and (2) in the Constitution appears to be a matter of abundant caution. Even in
their absence, if any of the fundamental rights was infringed by any legislative
enactment, the Court has always the power to declare the enactment, to the extent it
transgresses the limits, invalid.....”

Judicial review, in India, thus, is not dependent upon the express provision in Art.
13, nor is its ambit restricted to the sphere of fundamental rights which is referred to in
Art. 13. It extends to the entire length and breadth of the Constitution, subject only to two
conditions, namely, that the provision of the Constitution which is sought to be enforced
by the Court against the Legislature must be justiciable and mandatory. The Supreme
Court has already annulled laws for contravention of various provisions outside Part III
of the Constitution.76

Following are the express provision of the Constitution of India which establishes
doctrine of Judicial Reviews :

Article 13. Laws inconsistent with or in derogation of the fundamental rights :

1 All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this
part, shall, to the extent of such inconsistency, be void.

2 The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to
the extent of the contravention, be void.

3 In this article, unless the context otherwise requires -

a. “law” includes any Ordinance, order, bye-law, rule, regulation,

notification, custom or usage having in the territory of India the force of
law;

75 Supra n.9
76 Supra n.l at 362

103
 b. “laws in force” includes laws passed or made by a Legislature or other
competent authority in the territory of India before the commencement of
this Constitution and not previously repealed, notwithstanding that any
such law or any part thereof may not be then in operation either at all or in
particular areas.

4 Nothing in this article shall apply to any amendment of this Constitution made
under Article 368.77

Article 32. Remedies for enforcement of rights conferred by this Part

1 The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

2 The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of any
of the rights conferred by this Part.

3 Without prejudice to the powers conferred on the Supreme Court by clauses (1)
and (2), Parliament may by law empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2).

4 The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

Article 131. Original jurisdiction of the Supreme Court

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of
any other court, have original jurisdiction in any dispute :

a) between the Government of India and one or more States; or

b) between the Government of India and any State or States on one side and one or
more other States on the other; or

c) between two or more States,

77 Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, S. 2.

104
if and in so far as the dispute involves any question (whether of law or fact) on which the
existence or extent of a legal right depends :

[Provided that the said jurisdiction shall not extend to a dispute arising out of
any treaty, agreement, covenant, engagement, sanad or other similar instrument which,
having been entered into or executed before the commencement of this Constitution,
continues in operation after such commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.]

Article 132. Appellate jurisdiction of Supreme Court in appeals from High Courts
in certain cases :

1 An appeal shall lie to the Supreme Court from any judgment, decree or final order
of a High Court in the territory of India, whether in a civil, criminal or other
proceeding,79 [if the High Court certifies under Article 134-A] that the case
involves a substantial question of law as to the interpretation of this Constitution.
2 BOj-sis *

3 Where such a certificate is given, 81[* * *] any party in the case may appeal to the
Supreme Court on the ground that any such question as aforesaid has been
wrongly decided 82[* * * ].

Explanation : For the purposes of this article, the expression “final order” includes
an order deciding an issue which, if decided in favour of the appellant, would be
sufficient for the final disposal of the case.

Article 133. Appellate jurisdiction of Supreme Court in appeals from High Courts
in regard to civil matters
83[(1) An appeal shall lie to the Supreme Court from any judgement, decree or final order
in a civil proceeding of a High Court in the territory of India 84[if the High Court certifies
under Article 134-A] -

78 Subs, by the Constitution (Seventh Amendment) Act, 1956,S.5, for the original proviso.
79 Subs, by the Constitution (Forty-fourth Amendment) Act, 1978, S. 17 (w.e.f. 1-8-1979)
80 Omitted by ibid, (w.e.f. 1-8-1979)
81 Omitted by ibid, (w.e.f. 1-8-1979)
82 Omitted by ibid, (w.e.f. 1-8-1979)
83 Subs, by the Constitution (Thirtieth Amendment) Act, 1972, S.2 for cl. (1) (w.e.f. 27-2-1973)
84 Subs, by the Constitution (Fourth Amendment) Act, 1978, S. 18 (w.e.f. 1-8-1979)

' 105
a) that the case involves a substantial question of law of general importance; and

b) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court.]

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme
Court under clause (1) may urge as one of the grounds in such appeal that a substantial
question of law as to the interpretation of this Constitution has been wrongly decided.

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by

law otherwise provides, lie to the Supreme Court from the judgment, decree or final order
of one Judge of a High Court.

Article 134. Appellate jurisdiction of Supreme Court in regard to criminal maters

1 An appeal shall lie to the Supreme Court from any judgment, final order or
sentence in a criminal proceeding of a High Court in the territory of India if the
High Court -

a. has on appeal reversed an order of acquittal of an accused person and

sentenced him to death; or

b. has withdrawn for trial before itself any case from any court subordinate to
its authority and has in such trial convicted the accused person and
sentenced him to death; or

c. 85[certifies under Article 134-A] that the case is a fit one for appeal to the
Supreme Court:

Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may
be may made in the behalf under clause (1) of Article 145 and to such conditions as the
High Court may establish or require.

2 Parliament may by law confer on the Supreme Court any further powers to
entertain and hear appeals from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India subject conditions
and limitations as may be specified in such law.

85 Subs, by the Constitution (Forty-Fourth Amendment) Act, 1978, S. 19 (w.e.f. 1-8-1979)

106
o/

[Article 134-A Certificate for appeal to the Supreme Court]

Every High Court, passing or making a judgment, decree, final order, or sentence,
referred to in clause (1) of Article 132 or clause (1) of Article 133, or clause (1) of Article
134, -

a) may, if it deems fit so to do, on its own motion; and

b) shall, if an oral application is made, by or on behalf of the party aggrieved,

immediately after the passing or making of such judgment, decree, final order or
sentence,

determine, as soon as may be after such passing or making, the question whether a
certificate of the nature referred to in clause (1) of Article 132, or clause (1) of Article
133 or, as the case may be, sub-clause (c) of clause (1) of Article 134, may be given in
respect of that case.]

Article 135. Jurisdiction and powers of the Federal Court under existing law to be
exercisable by the Supreme Court

Until Parliament by law otherwise provides, the Supreme Court shall also have
jurisdiction and powers with respect to any matter to which the provisions of Article 133
or Article 134 do not apply if jurisdiction and powers in relation to that matter were
exercisable by the Federal Court immediately before the commencement of this
Constitution under any existing law.

Article 136 Special leave to appeal by the Supreme Court

1 Notwithstanding anything in this chapter, the Supreme Court may, in its

discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India.

2 Nothing in clause (1) shall apply to any judgment, determination, sentence or

order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.

86 Ins. by Constitution (Forty-Fourth Amendment) Act, 1978, S. 20 (w.e.f. 1-8-1979)

107
Article 141 Law declared by Supreme Court to be binding on all courts

The law declared by the Supreme Court shall be binding on all courts within the territory
of India.

Article 143 Power of President to consult Supreme Court

1 If at any time it appears to the President that a question of law or fact has arisen,
or is likely to arise, which is of such a nature and of such public importance that it
is expedient to obtain the opinion of the Supreme Court upon it, he may refer the
question to that Court for consideration and the Court may, after such hearing as it
thinks fit, report to the President its opinion thereon.

2 The President may, notwithstanding anything in87* * * the proviso to Article 131,
refer a dispute of the kind mentioned in the 88[said proviso] to the Supreme Court
for opinion and the Supreme Court shall, after such hearing as it thinks fit, report
to the President its opinion thereon.

Article 144 Civil and judicial authorities to act in aid of the Supreme Court

All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme
Court.
OQ

[Article 226. Power of High Courts to issue certain writs

1 Notwithstanding anything in Article 32,90[* * *] every High Court shall have

power, throughout the territories in relation to which it exercises jurisdiction, to
issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including9'[writs in the nature
of habeas, corpus, mandamus, prohibition, 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.]

87 The words, brackets and figure “cl. (i) of’ omitted by the Constitution (Seventh Amendment) Act, 1956,
S. 29 and Sch.
88 Subs, by S. 29 and Sch., Ibid., for “said clause”.
89 Subs, by the Constitution (Forty-second Amendment) Act, 1976, S. 38 (w.e.f. 1-2-1977)
90 Omitted by the Constitution (Forty-third Amendment) Act, 1977, S. 7 (assented to on 13-4-1978) the
words “but subject to the provisions of Art. 131-A and Art 226-A”
91 Subs, by the Constitution (Forty-fourth Amendment) Act, 1978, S. 30 (w.e.f.. 1-8-1979)

108
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.
09
3 [Where any party 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 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 the 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 case may be, the expiry of
the said next day, stand vacated.]

4 93 [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]

Article 227. Power of superintendence over all courts by the High Court

1 94 [ 95 [Every High Court shall have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction.] ]

92 Subs, by the Constitution (Forty-fourth Amendment) Act, 1978, S. 30 for els. (3) to (6) (w.e.f.. 1-8-1979)
93 Cl. (7) renumbered by ibid, (w.e.f. 1-8-1979)
94 Subs, by the Constitution (Forty-second Amendment) Act, 1976, S. 40 (w.e.f. 1-2-1977)
95 Subs, by the Constitution (Forty-fourth Amendment) Act, 1978, S. 31 (w.e.f. 20-6-1979)

109
2 Without prejudice to the generality of the foregoing provision, the High Court
may-

a. call for returns from such courts;

b. make and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts; and

c. prescribe forms in which books, entries and accounts shall be kept by the
officers of any such courts.

3 The High Court may also settle tables of fees to be allowed to the sheriff and all
clerks and officers of such courts and to attorneys, advocates and pleaders
practising therein:

Provided that any rules made, forms prescribed or tables settled under clause (2)
or clause (3) shall not be inconsistent with the provision of any law for the time
being in force, and shall require the previous approval of the Governor.

4 Nothing in this article shall be deemed to confer on a High Court powers of

superintendence over any court or tribunal constituted by or under any law
relating to the Armed Forces.

Article 228 Transfer of certain cases to High Court

If the High Court is satisfied that a case pending in a court subordinate to it involves a
substantial question of law as to the interpretation of this Constitution the determination
of which is necessary for the disposal of the case, 96[it shall withdraw the case and 97[* *
*] may - ]

a) either dispose of the case itself, or

b) determine the said question of law and return the case to the court from which the
case has been so withdrawn together with a copy of its judgment on such
question, and the said court shall on receipt thereof proceed to dispose of the case
in conformity with such judgment.

96 Subs, by the Constitution (Forty-second Amendment) Act, 1976, S. 41 (w.e.f. 1-2-1977)

97 Omitted by the Constitution (Forty-third Amendment) Act, 1977, S, 9 (w.e.f. 13-4-1978) the words
“subject to the provision of Art. 131 -A”.

110
Article 245. Extent of laws made by Parliament and by the Legislatures of States

1 Subject to the provisions of this Constitution, Parliament may make laws for the
whole or any part of the territory of India, and the Legislature of a State may
make laws for the whole or any part of the State.

2 No law made by Parliament shall be deemed to be invalid on the ground that it

would have extra-territorial operation

Article 246. Subject-matter of laws made by Parliament and by the Legislatures of

States

1 Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power
to make laws with respect to any of the matters enumerated in List I in the
Seventh Schedule (in this Constitution referred to as the “Union List”).

2 Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the
Legislature of any State * * * also, have power to make laws with respect to any
of the matters enumerated in List III in the Seventh Schedule (in this Constitution
referred to as the “Concurrent List”).

3 Subject to clauses (1) and (2), the Legislature of any State" * * * has exclusive
power to make laws for such State or any part thereof with respect to any of the
matters enumerated in List II in the Seventh Schedule (in this Constitution
referred to as the “State List”).

4 Parliament has power to make laws with respect to any matter for any part of the
territory of India not included100 in a State] notwithstanding that such matter is a
matter enumerated in the State List.

Article 367. Interpretation

1 Unless the context otherwise requires, the General Clauses Act, 1897, shall,
subject to any adaptations and modifications that may be made therein under

98 The words and letters “specified in Part A or Part B of the First Schedule” omitted by the Constitution
(Seventh Amendment) Act, 1956, S. 29 and Sch.
99 The words and letters “specified in Part A or Part B of the First Schedule” omitted by the Constitution
(Seventh Amendment) Act, 1956, S. 29 and Sch.
100 Subs, by S. 29 and Sch., ibid., for “in Part A and Part B of the First Schedule”

111
 Article 372, apply for the interpretation of this Constitution as it applies for the
interpretation of an Act of the Legislature of the Dominion of India.

2 Any reference in this Constitution to Acts or laws of, or made by, Parliament, or
to Acts or laws of, or made by, the Legislature of State 101 [* * ], shall be
construed as including a reference to an Ordinance made by the President or, to an
1 O')
Ordinance made by a Governor [* * *], as the case may be.

3 For the purposes of this Constitution “foreign State” means any State other than
India:

Provided that, subject to the provisions of any law made by Parliament, the
President may by order103 declare any State not to be a foreign State for such
purposes as may be specified in the order.

Article 372. Continuance in force of existing laws and their adaptation

1 Notwithstanding the repeal by this Constitution of the enactments referred to in

Article 395 but subject to the other provisions of this Constitution, all the laws in
force in the territory of India immediately before the commencement of this
Constitution shall continue in force therein until altered or repealed or amended
by a competent Legislature or other competent authority.

2 For the purpose of bringing the provisions of any law in force in the territory of
India into accord with the provisions of this Constitution, the President may by
order104 make such adaptations and modifications of such law, whether by way of
repeal or amendment, as may be necessary or expedient, and provide that the law
shall, as from such date as may be specified in the order, have effect subject to the

101 The words and letters “specified in Part A and Part B of the First Schedule” omitted by the Constitution
(Seventh Amendment) Act, 1956, S. 29 and Sch.
102 The words “or Rajpramukh” omitted by S. 29 and Sch. Ibid.
103 See the Constitution (Twenty-fourth Amendment) Act, 1971, S. 3 for “Procedure for amendment of the
Constitution”
104 See the Adaptation of Laws Order, 1950, dated the 26th January, 1950, Gaz. of India, Extraordinary, P.
449, as amended by Notification No. S.R.O. 115, dated the 5th June, 1950, Gaz. of India, Extraordinary,
Part II, S. 3, P. 51, Notification No. S.R.O. 870,dated the 4th November, 1950,Gaz.of
India,Extraordinary,Parti 1,S.3,P.903,NotificationNo.S.R.O.508,dated the 4th April, 1951, Gaz. of India,
Extraordinary, Part II, S. 3, P. 287, and Notification No. S.R.O. 1140-B, dated the 2nd July, 1952, Gaz. of
India, Extraordinary, Part II, S. 3, P. 616/1 : and the Adaptation of the Travancore-Cochin Land Acquisition
Laws Order, 1952, dated the 20th November, 1952, Gaz. of India, Extraordinary, Part II, S. 3, P. 923.

112
 adaptations and modifications so made, and any such adaptation or modification
shall not be questioned in any court of law.

3 Nothing in clause (2) shall be deemed -

a. to empower the President to make any adaptation or modification of any

law after the expiration of105 [there years] from the commencement of this
Constitution; or

b. to prevent any competent Legislature or other competent authority from

repealing or amending any law adapted or modified by the President under
the said clause.

Explanation I: The expression “law in force” in this article shall include a law passed or
made by a Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, not withstanding that it
or parts of it may not be then in operation either at all or in particular areas.

Explanation II: Any law passed or made by the Legislature or other competent authority
in the territory of India which immediately before the commencement of this Constitution
had extra-territorial effect as well as effect in the territory of India shall, subject to any
such adaptations and modifications as aforesaid, continue to have such extra-territorial
effect.

Explanation III : Nothing in the article shall be construed as continuing any temporary
law in force beyond the date fixed for its expiration or the date on which it would have
expired if this Constitution had not come into force.

Explanation IV ; An Ordinance promulgated by the Governor of a Province under

Section 88 of the Government of India Act, 1935, and in force immediately before the
commencement of this Constitution shall, unless withdrawn by the Governor of the
corresponding State earlier, cease to operate at the expiration of six weeks from the first
meeting after such commencement of the Legislative Assembly of that State functioning
under clause (1) of Article 382, and nothing in this article shall be construed as
continuing any such Ordinance in force beyond the said period.

105 Subs, by the Constitution (First Amendment) Act, 1951, S. 12, for “two years”

113
Article 395. Repeals

The Indian Independence Act, 1947, and the Government of India Act, 1935, together
with all enactments amending or supplementing the latter Act, but not including the
Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed.

The above are the express provision which establish power of judicial review in
India. 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 any
Constitutional provision. The courts act as sentinel on the qui vive so far as the
Constitution is concerned.106

Underlining this aspect of the matter, the Supreme Court stated in State of
Madras v. Row that the Constitution contains express provisions for judicial review of
legislation as to its conformity with the Constitution and that the courts “face up to such
important and none too easy task” not out of any desire “to tilt at legislative authority in a
crusader’s spirit, but in discharge of a duty plainly laid upon them by the 'Constitution.
While the Court naturally attaches great weight to the legislative judgment, it cannot
desert its own duty to determine finally the Constitutionality of an impugned statute”.108

The Supreme Court emphasized in Gopalan : “In India it is the Constitution that is
supreme” and that a “statute law to be valid, must in all cases be in conformity with the
Constitutional requirements and it is for the judiciary to decide whether any enactment is
Constitutional or not” and if a legislature transgresses any Constitutional limits, the court
has to declare the law unconstitutional “for the court is bound by its oath to uphold the
Constitution.109

Judicial review has been declared an integral part of the Constitution of India in
many cases by Supreme Court. Khanna, J. has emphasized in Kesvananda Bharat, v.
State of Kerla110:

106 Supra No. 3

107 AIR 1952 SC 196
108 Id at 199, per Patanjali Sastri, C.J.
109 Supra No. 9
110 Supra No. 12

114
 “As long as some fundamental rights exist and are a part of the Constitution, the
power of judicial review has also to be exercised with a view to see that the guarantees
afforded by those rights are not contravened ....judicial review has thus become an
integral an integral part of the Constitutional system.” .

In State of Rajasthan V. Union of India111 Bhagwati, J. emphatatically

expounded doctrine of Judicial review in following words :

“It is necessary to assert in the clearest terms particularly in the context of recent
history, that the Constitution is supreme lex, the permanent law of the land, and there is
no department or branch of government above, or beyond it. Every organ of government,
be it the executive or the legislature or the judiciary, derives its authority from the
Constitution and it has to act within the limits of its authority. No one however highly
placed and no authority howsoever lofty can claim that it shall be the sole judge of the
extent of its power under the Constitution or whether its action is within the confines of
such power laid down by the Constitution. This court is the ultimate interpreter of the
Constitution and to this court is assigned the delicate task of determining what is the
power conferred on each branch of government, whether it is limited, and if so, what are
the limits and whether any action of that branch transgresses such limits”.

In Minerva Mills v/s Union of India112 Chandrachud, C.J. speaking on behalf

of the majority observed “our Constitution is founded on a nice balance of power among
the three wings of the State, namely the Executive, the legislature and the Judiciary. It is
function of the judges, have their duty, to pronounce upon the validly of laws. If courts
are totally deprived of that power the fundamental rights conferred on the people will
become a mere adorment because rights without remedies are as writ in water. A
controlled Constitution will then become uncontrolled.113

In the same case, Bhagwati, J. has observed :

It is the solemn duty of the judiciary under the Constitution to keep the different
organs of the State such as the executive and the legislature within the limits of the power

111 AIR 1977 SC 1361

112 Supra Note 20
113 Ibid at 1799 (para 26)

115
conferred upon them by the Constitution. This power of judicial review is conferred on
the judiciary by Arts, 32 and 226 of the Constitution. Speaking about draft Art. 25,
corresponding to present Article 32 of the Constitution. Dr. Ambedkar, the principal
architect of our Constitution, said in the Constituent Assembly on 9th December, 1948 :

“If I was asked to name any particular article in the Constitution as the most
important - an article without which this Constitution would be a nullityI could not
refer to any other article except this one. It is the very soul of the Constitution and the
very heart of it and I am glad that the House has realised its importance.” (C.A. debates,
Vol. VII, p. 953) It is a cardinal principle of our Constitution that no one howsoever
highly placed and no authority however lofty can claim to be the sole judge of its power
under the Constitution or whether its action is within the confines of such power laid
down by the Constitution. The judiciary is the interpreter of the Constitution and to the
judiciary is assigned the delicate task to determine what is the power conferred on each
branch of Government, whether it is limited, and it so, what are the limits and whether
any action of that branch transgresses such limits. It is for the judiciary to uphold the
Constitutional values and to enforce the Constitutional limitations. That is the essence of
the rule of law, which inter alia requires “the exercise of powers by the Government
whether it be the legislature or the executive or any other authority, be conditioned by the
Constitution and the law.” The power of judicial review is an integral part of our
Constitutional system and without it, there will be no Government of laws and the rule of
law would become a teasing illusion and a promise of unreality. I am of the view that if
there is one feature of our Constitution which, more than any other, is basic and
fundamental to the maintenance of democracy and the rule of law, it is the power of
judicial review and it is unquestionably, to my mind, part of the basic structure of the
Constitution.114

In S.S. Bola v. B.D. Sharma,115 Ramaswami, J. has emphatatically justified

judicial review as:

“The founding fathers very wisely, therefore, incorporated in the Constitution

itself the provisions of judicial review so as. to maintain the balance of federalism, to
protect the fundamental rights and fundamental freedoms guaranteed to the citizens and

114 Ibid at pp. 1825-1826 (para 93)

115 AIR 1997 SC 3127

116
to afford a useful weapon for availability, availment and enjoyment of equality, liberty
and fundamental freedoms and to help to create a healthy nationalism. The function of
judicial review is a part of the Constitutional interpretation itself. It adjusts the
Constitution to meet new conditions and needs of the time.”116

In L. Chandra Kumar v. Union of India117, Ahmadi, C.J. has observed :

“The judges of the Supreme Courts have been entrusted with the task of
upholding the Constitution and to this end, have been conferred the power to interpret it.
It is they who have to ensure that the balance of power envisaged by the Constitution is
maintained and that the legislature and the executive do not, in the discharge of their
functions, transgress Constitutional limitations.118

Therefore, the courts in India cannot be accused of usurping the function of

Constitutional adjudication, it is a function which has been imposed on them by the
Constitution itself. It is a delicate task, the courts may even find it embarrassing at times
to discharge it, but they cannot shirk their Constitutional responsibility.119

B) SCOPE OF ARTICLE 13

Art. 13 is the key provision as it gives teeth to the Fundamental Rights and makes
them justiciable. The effect of Art. 13 is that the Fundamental Rights cannot be infringed
1OH
by the government either by enacting a law or through administrative action.

Clause (1), read with clause (3), says that all laws, including customs and usages
having the force of law, existing in India at the commencement of the Constitution, which
are inconsistent with the provisions relating to Fundamental Rights contained in Part III,
would be, to the extent of such inconsistency, void. Art. 3 72 saves the Taws in force’ at
the commencement of the Constitution, but ‘subject to the provisions of the Constitution’.
Nevertheless, Art. 13 (1) specifically makes them subject to Part III of the Constitution.

116 Ibid at 3170

117 AIR 1997 SC 1125
118 Ibid at 1150
119 Supra Note 3
120 Ibid at 976

117
 Clause (2), on the other hand, provides that any future law enacted by an authority
in India, which takes away or abridges any of the rights and provisions of part III relating
to Fundamental Rights, shall be void to the extent of such contravention.

The Judiciary [Arts. 32 and 226] is thus to act as the guardian of the fundamental
rights guaranteed by the Constitution, and in exercising that function, it has the power to
set aside an Act of the Legislature if it is in violation of those rights.121
1 99
In A.K. Gopalan v. State of Madras Kania, C. J. observed as follows about the
place of Article 13 in the Constitution :

The inclusion of Article 13 (1) and (2) in the Constitution appears to be a matter
of abundant caution. Even in their absence, if any of the Fundamental Rights was
infringed by any legislative enactment, the Court has always the power to declare the
enactment, to the extent it transgresses the limits, invalid. The existence of Article 13(1)
and (2) in the Constitution, therefore, is not material for the decision of the question what
Fundamental Right is given and to what extent it is permitted to be abridged by the
Constitution itself.123

The supremacy of the Fundamental Rights was thus treated as a part of the
supremacy of the Constitution as a whole. It was perhaps for this reason that the learned
Chief Justice did not think it necessary that a separate article like Article 13 was needed
to emphasize this point. His Lordship also perhaps implied that judicial review of
legislation sprang from this distinction between the Constitution as fundamental law and
other legislation as ordinary law.

The reason is that the very adopting of a written Constitution with a Bill of Rights
and Judicial Review implies that the Courts shall have the power to strike , down a law
which contravenes a fundamental right or some other limitation imposed by the
Constitution.124

121 Chintamanrao v. State of Madras (1950) SCR 759, 765

122 A.K. Gopalan v. State Madras (1950) SCR 88
123 Id at 100
124 Supra No. 1 at 329

118
 Art. 13 confers a power as well as imposes an obligation on the courts to declare a
law void if it is inconsistent with a Fundamental Right. This is a power of great
consequence for the courts. The Supreme Court has figuratively this role of the courts as
that of a “sentinel on the qui vive”.125 It may however be underlined that the courts do not

lightly declare a statue unconstitutional because they are conscious of their responsibility
in declaring a law made by a democratic legislature void. On the whole, not many
statutes have been hit by Fundamental Rights. However, judicial review of administrative
action is some what more pervasive than that of legislative action.

C) SCOPE OF ARTICLES 372 (1) AND 245 (1)

The Constitution of India derives its power not from any statute made by British
Parliament but from the people of India acting through their representatives in the
Constituent Assembly. Prior to the commencement of the Constitution, not only the
Government of India Act, 1935 or the Indian Independence Act, 1947 but every other
statute of British Parliament stood on a higher footing than stautes made by Indian
Legislatures. All of them were in the nature of a fundamental law vis-a-vis India and as
such could not be altered by statutes of Indian Legislatures. The Government of India Act
was also called the Constitution Act because it embodied the structure of the Government
in India. But it did not stand on a footing higher than any other statute of the British
Parliament.

As a political principle, no foreign statue could be law in India proprio vigore

when India became an independent Indian Sovereign State. But the new State of India
would naturally require time to have her own legislation to replace the British statutes.
Till then the provisions of the British statutes had to be available to be used as law.
Otherwise, there would be a vacuum and there would be no law on those questions which
were dealt with by those statutes. The sovereignty of India and the supreme nature of her
Constitution had also to be asserted at the same time. This was achieved by the following
provisions of the Constitution.

Article 395 of the Constitution repealed the Indian Independence Act, 1947 and
the Government of India Act, 1935 though they were statutes of British Parliament. This

125 State of Madras v. U.G. Raw, AIR 1952 SC 196

119
could be done in India for the first time because our Constitution was framed by an
independent and sovereign nation through a Constituent Assembly. In exercise of this
sovereign power, Article 372 (1) of the Constitution enacted that all the laws in force in
India immediately before the commencement of the Constitution shall continue in force
until altered or repealed or amended by a competent Legislature or other authority “but
subject to the other provisions of the Constitution”. These words establish the judicial
review of legislation in respect of pre-Constitution laws. It becomes the duty of the
Courts in India to determine whether a pre-Constitution law is reconciliable with the
Constitution. If it is, then it continues to be in force. If it is not, then it cannot continue in
force. The extent of the repugnancy between a pre-Constitution law and the Constitution
involves interpretation of the Constitution and the law. Such interpretation is the function
of the Courts in deciding litigation before them. It is thus clear that no pre-Constitution
law could rank as equal to the Constitution. It follows that no pre-Constitution law would
be called a Constitutional law. The only Constitutional law was the Constitution itself.126

The authority to legislate was vested by the Constitution exclusively in the

Parliament and in the State Legislatures by Article 245(1) of the Constitution. But the
exercise of this authority was made “subject to the provisions of the Constitution”. It
followed, therefore, that neither the Parliament nor the State Legislatures could make any
law which would not be in consonance with the Constitution. The doctrine of judicial
review of legislation in respect of the post-Constitution laws was also thus established.

The significance of the Constitution in the legal history of India is that of a great
divide. For the first time by a sovereign political act, the Indian fundamental law came
into existence; and in consequence even legislation made by Parliament and State
Legislatures of an independent and sovereign India had to be in conformity with the
Constitution. For the same reason the pre-existing laws whether of Indian or foreign
origin having operation in India had also to conform with the Constitutioii. Once the
Constitution is viewed as the dividing point, it becomes very clear that Constitution as a
whole stands on a higher pedestal than other laws whether these laws had existed prior to
the Constitution or made thereafter. The Constitution is an entity different from the

126 Supra No. 12, per Ray, J., para 111

120
ordinary laws. The Constitution thus contained two testing points of Constitutionality of
statutes looking in two different directions. Article 372 (1) tested the validity of the laws
which existed from before the Constitution. Article 245 tested the validity of laws made
by Parliament and State Legislatures after the commencement of the Constitution. The
ordinary laws could be only of these two kinds, namely, either they existed from before
the Constitution or they were made after the Constitution. The textual basis on which
both these kinds of legislation could be reviewed as to their validity by the Supreme
Court and the High Courts was thus explicitly laid down in these two Articles, namely,
372(1) and 245 (1).

While Articles 372(1) and 245 (1) apply to all laws which may be inconsistent
with any part of the Constitutional, Article 13 applies only to such laws which are
inconsistent with the Fundamental Rights. Articles 372 (1) and 245 (1) therefore, supply
a complete textual basis for the judicial review of legislation while Article 13 supplies
such basis only in respect of some legislation but not all.

5 JUDICIAL REVIEW IS BASIC STRUCTURE OF THE

CONSTITUTION

The doctrine of judicial review has been taken to its pinnacle of glory in the
famous Kesavananda Bharati v. State of Kerala.127 In that historic and momentous
judgment, the Supreme Court held that while the amending power under article 368 is
comprehensive enough to cover the amendment of any part of the Constitution including
the fundamental rights, the power could not be exercised so as to destroy those features of
the Constitution which constitute its basic structure.

In Kesavananda while different judges identified features as constituting the basic

structure of the Constitution, it is remarkable that the doctrine of judicial review was not
per se mentioned as one of the basic features of the Constitution. In fact the doctrine of
judicial review has been added to the list of basic features in Minerva Mills v. Union of
India.128

127 Supra Note 12

128 Supra Note

121
 In this case Chandrachud, C.J., speaking for himself and Gupta Untwalia and
Kailasm, JJ., has observed that : “Since the Constitution had conferred a limited
amending power on the parliament, the parliament cannot under the exercise of that
limited power enlarge that very power into an absolute power. Indeed a limited amending
power is one of the basic features of our Constitution and therefore, the limitation or that
power cannot be destroyed............ The donee of limited power cannot by the exercise of
that power convert the limited power into an unlimited one.”129

Our Constitution is founded on a nice balance of power among the three wings of
the State, namely, the Executive, the Legislature and the Judiciary. It is the function of
the Judges, nay their duty, to pronounce upon the validity of laws, if Courts are totally
deprived of that power, the fundamental rights conferred upon the people will become a
mere adornment because rights without remedies are as writ in water. A controlled
Constitution will then become uncontrolled.130

In the same case Bhagwati, J. has observed :

“It is for the judiciary to uphold the Constitutional values and to enforce the
Constitutional limitations. That is the essence of the rule of law, which inter alia requires
that the exercises of powers by the government whether it be the legislature or the
executive or any other authority, be conditioned by the Constitution and the law. The
power of judicial review is an integral part of our Constitutional system and without it,
there will be no Government of laws and the rule of law would become a teasing illusion
and a promise of unreality. I am of the view if there is one feature of our Constitution
which, more than any other, is basic and fundamental to the maintenance of democracy
and the rule of law, it is the power of judicial review and it is unquestionably, to my
mind, part of the basic structure of the Constitution.”
1 O1

In S.P. Sampath Kumar v. Union of India , Bhagwati, C.J., observed,

“Judicial review is a basic and essential feature of the Constitution and no law passed by
parliament in exercise of its constituent power can abrogate it or take it away. If the

129 Ibat 1799, para 22.

130 Ibid, para 26
131 (1987) SCC 124

122
power of Judicial review is abrogated or taken away the Constitution will cease to be
what it is.”

Similarly in Subhesh Sharma v. Union of India132, the Supreme court has

asserted that, “Judicial review is a part of the basic Constitutional structure and one of the
basic features of the essential Indian Constitutional policy.”

In L. Chandra Kumar v. Union of India , the Court has ruled that the power
of judicial review which is vested in the High Courts under Arts. 226 and 227 and the
Supreme Court under Art. 32 of the Constitution, is an integral and essential feature of
the Constitution, constituting part of its basic structure. Ordinarily, therefore, this power
of the High Courts and the Supreme Court to test the Constitutional validity of the
legislation can never be ousted or excluded. Therefore, no Constitutional amendment can
exclude the power of the High Courts and the Supreme Court to test the Constitutional
validity of the legislation.

In I.R. Coelho v. State of Tamil Nadu,134 a nine-Judge Bench by unaniomous

decision, speaking through Y.K. Subharwal C.J., has observed that:

It is the duty of this Court to uphold the Constitutional values and enforce
1
Constitutional limitations as the ultimate interpreter of the Constitution.

The Constitution is a living document. The Constitutional provisions have to be

construed having regard to the march of time and the development of law. It is, therefore,
necessary that while construing the doctrine of basic structure due regard be had to
i v

various decisions which led to expansion and development of the law.

Under the controlled Constitution, the principles of checks and balances have an
important role play. Even in England where Parliament is sovereign, Lord Steyn has
observed that in certain circumstances, courts may be forced to modify the principle of
parliamentary sovereignty, for example, in cases where judicial review is ought to be

AIR 1991 SC 631 at 646

133 AIR 1997 SC 1125, at 1149-50
134 (2007)2 SCC
135 lb at 78, para 41
136 lb at 79, para 42

123
abolished. By this the judiciary is protecting a limited form of Constitutionalism,
ensuring that their institutional role in the Government is maintained.137

There is a difference between parliamentary and Constitutional sovereignty. Our

Constitution is framed by a Constituent Assembly which was not Parliament. It is in the
exercise of law-making power by the Constituent Assembly that we have a controlled
Constitution. Articles 14, 19, 21 represent the foundational values which form the basis
of the rule of judicial review apart from the rule of and separation of powers. If in future,
judicial review was to be abolished by a Constitutional amendment, as Lord Steyn says,
the principle of parliamentary sovereignty even in England would require a relook. This
is how law has developed in England over the years. It is in such cases that doctrine of
basic structure as propounded in Kesavananda Bharati case has to apply.138

Granville Austin has been extensively quoted and relied on in Minerva Mills,
Chandrachud, C.J. observed that to destroy the guarantees given by Part III in order to
purportedly achieve the goals of Part IV is plainly to subvert the Constitution by
destroying its basic structure. Fundamental rights occupy a unique place in the lives of
civilized societies and have been described in judgments as “transcendental”,
“inalienable” and “primordial”. The learned Chief Justice held that Parts III and IV
together constitute the core of commitment to social revolution and they, together, are the
conscience of the Constitution. It is to be traced for a deep understanding of the scheme
of the Indian Constitution. The goals set out in Part IV have, therefore, to be achieved
without the abrogation of the means provided for by Part III. It is in this sense that Parts
III and IV together constitute the core of our Constitution and combine to form its
conscience. “Anything that destroys the balance between the two parts will ipso facto
destroy an essential element of the basic structure of our Constitution.” (emphasis
supplied) (Minerva Mills, SCC p. 654, para 57). Further observes the learned Chief
Justice, that the matters have to be decided not by metaphysical subtlety, nor as a matter
of semantics, but by a broad and liberal approach. We must not miss the wood for the
trees. A total deprivation of fundamental rights, even in a limited area, can amount to
abrogation of a fundamental right just as partial deprivation in every area can. The

137 Ibid, para 47

138 Id at 80, para 48

124
observations made in the context of Article 31-C have equal and full force for deciding
the questions in these matters. Again the observations made in para 70 (SCC p. 659) are
very relevant for our purposes. It has been observed that (Minerva Mills case, para 70, p.
659).

“[I]f by a Constitutional amendment, the application of Articles 14 and 19 is

withdrawn from a defined field of legislative activity, which is reasonably in public
interest, the basic framework of the Constitution may remain unimpaired. But if the
protection of those articles is withdrawn in respect of an uncatalogued variety of laws,
fundamental freedoms will become a ‘parchment in a glass case’ to be viewed as a matter
of historical curiosity.”

These observations are very apt for deciding the extent and scope of judicial
review in cases wherein entire Part III, including Articles 14, 19, 20, 21 and 32, stand
excluded without any yardstick.139

The developments made in the field of interpretation and expansion of judicial

review shall have to be kept in view while deciding the applicability of the basic structure
doctrine - to find out whether there has been violation of any fundamental right, the
extent of violation, does it destroy the balance or it maintains the reasonable balance.140

Equality, rale of law, judicial review and separation of powers form parts of the
basic structure of the Constitution. Each of these concepts are intimately connected.
There can be no rule of law, if there is no equality before the law. These would
meaningless if the violation was not subject to the judicial review. All these would be
redundant if the legislative, executive and judicial powers are vested in one organ.
Therefore, the duty to decide whether the limits have been transgressed has been placed
on the judiciary.141

Realising that it is necessary to secure the enforcement of the fundamental rights,

power for such enforcement has been vested by the Constitution in the Supreme Court
and the High Courts. Judicial review is an essential feature of the Constitution. It gives

lj9 Ibid, para 49

140 lb at 81, para 50
141 Id at 105, para 129

125
practical content to the objectives of the Constitution embodied in Part III and other parts
of the Constitution, it may be noted that the mere fact that equality, which is a part of the
basic structure, can be excluded for a limited purpose, to protect certain kinds of laws,
does not prevent it from being part of the basic structure. Therefore, it follows that in
considering whether any particular feature of the Constitution is part of the basic
structure - rule of law, separation of powers - the fact that limited exceptions are made
for limited purposes, to protect certain kind of laws, does not mean that it is not part of
the basic structure.142

6 JUDICIAL ACTIVISM VERSUS JUDICIAL RESTRAINT

There cannot be and there is no judicial activism per se. Judiciary has always
remained active. It cannot afford to be passive. While other two wings of the government,
i.e. executive and legislature, sometimes remain passive and sometimes become
overactive, but judiciary functions within its framework and is bound to work within its
parameter because of constitutional device of division of powers. The main and prior
function of the judiciary is to deliver justice to all without fear or favour. The judiciary
endeavours to protect oppressed, powerless, poor and helpless people against the injustice
committed by omnipotent persons, authority or body. Judiciary protects the weakest
persons from the oppressive acts of either executive or legislatures. When judiciary
protects and provides justice to the poorest people against oppressive acts of a private
persons, authority or body, there is no hue and cry but when it protects against tyranny of
the Govt., everyone thinks about judicial activism.

Blacks law dictionary defines judicial activism as a judicial philosophy which

motives judge to depart from strict adherence to precedents in favour of progressive and
new policies which are not always consistent with the restraint expected by appellate
judges. If we regard judicial philosophy as a coin, one side of it is activism and other side
is restraint. In order to respond to the hopes and aspirations of the litigants, judiciary has
to exercise a jurisdiction with a courageous creativity. To have that courage, use of
practical wisdom in adjudicatory process helps a lot. Judicial activism can be regarded as
an unconventional role played by judiciary by delivering valuable judgements and

142 Ibid, para 130

126
granting reliefs to the-aggrieved according to the moral and social justice where statutory
law is silent or even contrary. Active interpretation of an existing provision with a view
to enhance the utility of a legislation for social betterment, can be regarded as a judicial
activism. In brief, it can be also assumed that judicial activism comes in to play when
there is a legislative shortsightedness or executive arbitrariness or both.

There are two models of judicial review. One is a technocratic model in which
judges act merely as technocrats and hold a law invalid if it is ultra vires the powers of
the legislature. In the second model, a court interprets the provisions of a constitution
liberally and in the light of the spirit underlying it keeps the constitution abreast of the
times through dynamic interpretation. A court giving new meaning to a provision so as to
suit the changing social or economic conditions or expanding the horizons of the rights of
the individual is said to be an activist court. Judicial activism can be positive as well as
negative. A court engaged in altering the power relations to make them more equitable is
said to be positively activist and a court using its ingenuity to maintain the status quo in
power relations is said to be negatively activist. The decisions of the US Supreme Court
in Dred Scott143 or Lochner v. New York144 were examples of negative judicial
activism, whereas the decision of that court in Brown v. Board of Education145 is an
example of positive activism. In Dred Scott, the US Supreme Court upheld slavery as
being protected by the right to property and in Lochner, it held a law against employment
of children as violative of the due process clause of the Constitution. In Brown v. Board
of Education, the Court held that segregation on the ground of race was unconstitutional
and void. Activism is related to change in power relations. A judicial interpretation that
furthers the rights of the disadvantaged sections or imposes curbs on absolute power of
the State, or facilitates access to justice is a positive activism. Judicial activism is inherent
in judicial review. Whether it is positive or negative activism depends upon one’s own
vision of social change. Judicial activism is not an aberration but is a normal
phenomenon and judicial review is bound to mature into judicial activism. Judicial
activism also has to operate within limits. These limits are drawn by the limits of

143 Dred Scot v. Sian ford 60 U.S. 393 (1856)

144 198 U.S. 45 (1904)
145 347 U.S. 483 (1954): 98 L. Ed. 873

127
institutional viability, legitimacy of judicial intervention, and resources of the court.
Since through judicial activism, the court changes the existing power relations, judicial
activism is bound to be political in nature. Through judicial activism, the constitutional
court becomes an important power centre of democracy.146

During the first two decades after the commencement of the Indian constitution
the Supreme Court demonstrated a judicial self restraint super imposed by Austinian
positivist philosophy on the scope of the power of judicial review. There is a discernible
trend in the Supreme Court’s attitude from an attitude of ‘judicial hands - off to that of
‘judicial usurpation’ of essentially executive function. There is a marked transformation
in the judicial restrainvist policy of the Supreme Court during the letter half of 1970s.

What was the one case that was the high-water mark of judicial activism in India?
No doubt it was the judgment of the majority in the Keshavananda Bharati case147. For
the first time a court held that a constitutional amendment duly passed by the legislature
was invalid as damaging or destroying its basic structure. This was a gigantic innovative
judicial leap unknown to any legal system. The masterstroke was that the judgment could
not be annulled by any amendment to be made by Parliament because the basic structure
doctrine was vague and amorphous. The judgment was severely and passionately
criticised by the executive and many eminent lawyers. The immediate response of the
executive was the supercession of three senior-most judges (Justices Shelat, Hegde, and
Grover) while the fourth Judge Justice A.N. Ray who had decided all major case in
favour of the Government was appointed Chief Justice. However, the critics were soon
silenced. The excesses of the Internal Emergency of 1975 completely legitimised this
judgement and one of its severest critics the great jurist H.M. Seervai changed his
views. Judicial activism earned a human face in India by liberalising access to justice
and giving relief to disadvantaged groups and the have nots under the leadership of
Justices V.R. Krishna Iyer and P.N. Bhagwati.1483

146 S.P. sathe, Judicial Activism in India, Oxford University Press, 2002, p. 5
147 Supra N. 12
148 Anil Divan, “Judicial Activism and Democracy”, The Hindu, Date: 02/04/2007, URL : http://www. the
hindu.com, last visited on 18/8/2010 at 7:56p.m.
1483 Ibid

128
 The decision in Maneka Gandhi v. Union of India149 and the Post-Emergency

judicial activism has inspired a philosophy of constitutional interpretation, treating the

constitution not as a mere index of rules but as assertion of the principles of
constitutionalism. The Supreme Court in Manaka Gandhi’s case150 pronounced that the

procedure contemplated by Article 21 must be ‘right, just and fair’ and not arbitrary’. It
must pass the test of reasonableness and the procedure should be in conformity with the
principles of natural justice and unless it was so, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.

Responding to the changing times and aspirations of the people, the judiciary,

with a view to see that the, fundamental rights embodied in the Constitution of India have

a meaning for the down-trodden and the under privileged classes, pronounced in M.H.
Hoskot v. State of Maharashtra15Ithat providing free legal service to the poor and
needy was an essential element of the ‘reasonable fair and just procedure’. Again, in

Hussainara Khatoon v. Home Secretary, Bihar while considering the plight of the

under trials in jail, speedy trial was held to be an integral and essential part of the ‘right to

life and liberty’ contained in article 21 of the Constitution of India. In Nandin Satpathy
v. P.L. Dani153, the Supreme Court held that an accused has the right to consult a lawyer
during interrogation and that the right not to make self-incriminatory statements should

be widely interpreted to cover the pre-trial stage also. Again, in Sheela Barse v. State of
Maharshtra154 the Supreme Court laid down certain safeguards for arrested persons. In
Bandhua Mukti Morcha v. Union of India,155 the Supreme Court held that right to life
guaranteed by article 21 included the right to live with human dignity, free from

exploitation.

The courts have, thus, been making judicial intervention in cases concerning

violation of human rights as an ongoing judicial process. Decisions on such matters as the

149 AIR1978 SC 597

150 ibid
m AIR 1978 SC 1548
152 AIR 1979 SC 1360
153 AIR 1978 SC 1025
154 (1983) 2 SCC 96
155 AIR 1984 SC 802

129
right to protection against solitary confinement as in Sunil Batra v. Delhi Admn.156, the
right not be held in fetters as in Charles Sobraj v. Supdt., Central Jail157, the right
against handcuffing as in T.V. Vatheeswaran V. State of Tamil Nadu158, the right
against custodial violence as in Nilabati Behera v. State of Orissa159, the rights of the
arrestee as in D.K. Basu v. State of West Benga 160or the right of the female employees
not to be sexually harassed at the place of work as in the case of Vishaka v. State of
Rajasthan161 and Apparel Export Promotion Councile v. A.K. Chopra162 are just a
few pointers in that direction. This newly forged weapon to help the torture victims has
i zr-2
been sharpened in many of its decisions, like, Rudal Shah v. State of Bihar , Bhim
Singh v. State of J&K164, Saheli v. Commissioner of Police.165

While liberally interpreting the constitution and thus expanding the rights of the
people, the court also changed the law regarding loius standi and public participation in
the judicial process. In view of the operations by the courts on a wider canvass of judicial
review, a potent weapon was forged by the Supreme Court by way of public interest
litigation (PIL) also known as social action litigation. The Supreme Court has ruled that
where judicial redress is sought in respect of a legal injury or a legal wrong suffered by
persons, who by reason of their poverty or disability are unable to approach the court for
enforcement of their fundamental rights, any member of the public, acting bonafide, can
maintain an action for judicial redress. Thus, the underprivileged and the downtrodden
have secured access to court through the agency of a public-spirited person or
organisation. This weapon was effectively used by the Supreme Court and the high
courts, being Constitutional courts, to a large extent from 1980 onwards. The decisions of
the Supreme Court in Sunil Batra v. Delhi Administration166 Municipal Council,

156 (1978) 4 SCC 494

157 (1978) 4 SCC 104
158 (1983) 2 SCC 68
159 (1993) 2 SCC 476
160 (1997) 1 SCC 426
161 (1997) 6 SCC 241
162 AIR 1999 SC 625
163AIR 1983 SC 1086
164 (1984) Supp. SCC 504
165 (1990) 1 SCC 422
166 Supra n. 156

130
 1 (\1
Ratlam v. Vardhichand , Akhil Bharatiya Soshit Karamchari Sangh, Railway
Union of India and umpteen number of decisions therefore by the Supreme Court and
more particularly the decision of the Supreme Court in S.P. Gupta v. Union of India169
represent watersheds in the development of PIL and liberalisation of the concept of locus
standi to make access to the courts easy. The principle underlying order 1 rule 8, Code of
Civil Procedure has been applied in public interest litigation to entertain class action and
at the same time to check misuse of PIL. The appointment of amicus curiae in these
matters ensures objectivity in the proceedings. Judicial creativity of this kind has enabled
realisation of the promise of socio-economic justice made in the preamble to the
Constitution of India.170

Judicial activism in India encompasses an area of legislative vacuum in the field

of human rights. Judicial activism reinforces the strength of democracy and reaffirms the
faith of the common man in the ‘rule of law’. The judiciary, however, can act only as an
alarm clock but not as a timekeeper. After giving the alarm call it must ensure to see that
the executive performs its duties in the manner envisaged by the Constitution. It would be
seen that judicial activism which is the search for the spirit of law has been profitably
used by powerless minorities, such as bonded labour, prison inmates, undertrial prisoners,
sex workers and such other powerless minority groups as are crusading for protection of
human rights of women and children or seeking redressal against governmental
lawlessness, or relief against developmental policies which benefit the haves at the cost
i ni
of the have nots.

The constitutional court has enormously expanded its power of judicial review
under an activist philosophy and orientation. The scope of judicial review in India should
be understood in the light of its constitutional scheme work, because the Indian judiciary
derives its strength from the constitution like other organs. That is why Dr. A.S. Anand
has stated that the judicial whistle need to be blown for a limited purpose and with
caustion. It needs to be remembered that courts cannot run the government nor the

167 AIR 1980 SC 1622

168A1R 1981 SC 298
169 AIR 1982 SC 149
170 A.S.Anand, ‘Judicial Review-Judicial Activism-Need for Caution”, (2000) 42 JILI 149, 155
171 Id at 157

131
administration indulge in abuse or non-use of power and get away with it. The courts
have the duty of implementing the constitutional safeguards that protect individual rights
but they cannot push back the limits of the constitution to accommodate the challenged
violation.172

Critics of judicial activism argue that the failure of the politicians to perform their
duties properly and the consequent role of the judges in providing some relief from
misgoverance is no reason to support the judge’s expansion of their powers through
creative (mis) interpretations. Whatever may be positive results of such judicial
intervention and interpretation the ends do not justify the means. The charge of
overreach is made on the judiciary which proceeds on the assumption that there is
constitutionally defined limit to judicial authority, which limit has been crossed by the
judiciary in India , the principle offender being the Indian Supreme Court.174 In March
2005 Somnath Chatterje Speaker of Lok Sabha, as he then, cited case175 of Supreme
Court, directing on how and when the vote of confidence is to be conducted in the state
assembly, as glaring examples of deviation from the clearly provided constitutional
scheme of separation of powers. He spoke in anguish in the house on March 10, 2005,
after discussing the matter with leaders of various parties in both the houses. He cited
Articles 122 and 221 and said : “Today unfortunately, because of the interim order of the
Hon’ble Supreme Court, the contours of the area of Supremacy of different organs
specially of the legislature, have got blurred which, if not pondered over and corrective
steps taken will totally upset the fine constitutional balance and the democratic
functioning of the State as a whole. The legislature should seriously consider the
consequences of, what may be termed as, encroachment upon their authority and
jurisdiction. It is necessary that the legislatures’ supremacy as enshrined in the

m Id at 159
173 Pran Chopra, The Supreme Court versus The constitution : A challenge to Federalism, ed., Sage : New
Delhi, 2006, quoted by K.N. Hari Kumar, “The constitution : who, if anybody, is Supreme ?, The Hindu,
Delhi Edition, Tuesday, jan. 31,2006, p. 10
174 Justice Ruma Pal, Judicial oversinght or overreach : The Role of the Judiciary in contemporary India”,
(2008) 7 SCC (J) 9
175 Jagdambika Pal v. Union of India, (1999) 9 SCC 95 : Anil Kumar Jha v. Union of India (2005) 3 SCC
150; Arjun Munda v. Governor of Jharkhand (2005) 3 SCC 399.

132
constitution should be clearly asserted.”176 According to him the constitution gives the
Indian legislature “a distinctly superior position” amongst the other organs of the
Government as the elected representatives of the sovereign will of the people.177

This view of former speaker, Lok Sabha does not holds water as in India,
constitution is Supreme and all organs of the state derive function and power from that
sacred document. Justice Pattanaik in B.R. Kapur v. State of Tamil Nadu,178 rightly has
hold that the legislative supremacy in the United Kingdom has no application in India
which is a country with a written constitution limiting the extent of such supremacy of
legislature or parliament. In other words, the people of the country, the organs of the
government, legislature, executive and judiciary are all bound by the constitution.179

The critics say that judges not second - guess parliament in the guise of
interpretation of the ordinary laws enacted by it, but while interpreting the constitution
judges have often rewritten it. No institution can play so pivotal a role as the judiciary
does and yet remain beyond any kind of accountability, questioning or scrutiny. This
non-accountability is good neither for the judiciary nor for the democratic polity. By
second-judges case judgment the higher judiciary so interpreted Article 124 of the
• • • • io1
constitution as to confer on itself the right to appoint its members.

In Divisional Manager, Aravali Golf Golf Club v. Chander Hass182 a two-

judge bench of the Supreme Court comprising justice A.K. Mathur and Justice
Markandey Katju observed in a service matter as follows :

“In the name of judicial activism Judges cannot cross their limits and try to take over
functions which belong to another organ of the State.183 Judicial must exercise judicial
1
restraint and must not encroach into the executive or legislative domain.

176 A.G. Noorani, “Limits of Judicial Authority,” Frontline Vol. : 23 155 : 18 URL :
http://www.flonnet.com fl 2318/ stores/2006092202108700.htm last visited on 8/12/2010 at 7:59pm, p. 4
177 Somnath Chatterjee, “Separation of powers under the constitution and judicial activism”, Dr. Kailash
Nath Katju Memorial Lecture, 26-4-2007, quoted by Justice Rurna Pal, Supra N. 171
178 (2001) 7 SCC 231
179 Id at 311, para 72
180 AIR 1994 SC 268
181 Harish Khare, “Rule of Law versus rule of judges”, The Hindu, Delhi Edition, Thursday, October 26,
2006, p. 10
182 (2008) 1 SCC 683; http://judis.nic.in, Supreme Court of India, pp. 1-9.
18j Ibid, para 17
184 Ibid, para 18

133
“Under our Constitution, the Legislature, Executive and Judiciary all have their own
broad spheres of operation. Ordinarily it is not proper for any of these three organs of the
State to encroach upon the domain of another, otherwise the delicate balance in the
Constitution will be upset, and there will be a reaction.185

The Bench has further observed that recently the courts strayed into the executive
dominion in matters of policy e.g. certain orders passed by the Delhi High Court dealing
with age and other criteria for nursery admissions, unauthorised schools, criteria for free
seats in schools, supply of drinking water in schools, number of free beds in hospitals on
public land, use and misuse of ambulance etc. Judges cannot create a law and seek to
enforce it. The directions given by the Supreme court in the cases of U.P. and Jharkhand
Assemblies are examples of deviation from the constitutional scheme of separation of
powers.186

There are mixed reactions to these propound observations made with deep
concern for the judiciary and the constitution. On the next day, a division bench of
Justices S.B. Sinha and H.S. Bedi declined to hear a public interest legislation by
referring the issue to a larger bench.187

Presiding over a three Judge Bench a Supreme Court three-judge bench, headed
by Chief Justice K.G. Balakrishnan has clarified that the observations of Aaravali case
are not binding on them. Even otherwise, observations made after disposing of the appeal
or merits are not a Taw’ declared by the Supreme Court under Article 141 and have no
binding effect.188

Traditionally, Judges declare the law but do not make it. However, the
constitutional mandate of Articles 32 and 226 to enforce the fundamental rights constrain,
the judiciary, at times, to formulate and issue binding directions which will operate till
the legislature enacts a law. The Supreme Court resorted to interim legislation in a few
cases in areas not covered by any Act or executive instructions.

185 Ibid, para 19

186 Ibid, para 26-28
187 The Tribune, New Delhi, Wednesday, Dec. 12, 2007, p. 20
188 The Tribune, New Delhi, Friday, Dec. 14, 2007, p. 1

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 The Separation of powers under the Indian constitution is not rigid but flexible
allowing as it does in many ways, for a functional overlap of powers in the three limbs of
the government. The functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can very well said that our
constitution does not contemplate assumption by one organ or part of the state, of
functions that essentially belong to another.189

Justice Ruma Pal explained judicial accountability as : “which the constitution

says, “we, the people of India” it does not mean the majority. It means that every
individual Indian is entitled to its protection........... Judicial accountability in a rights
democracy context does not mean political accountability to effectuate majority will or
answerability to the majority. It means the assurance to each individual that the process
of determining his or her individual right is transparent, impartial and objective.”190

There is nothing wrong with judicial activism. It is not a new judicial

phenomenon. Nor it is action to the rule of law and constitutionalism. In fact, it is an
integral part of the interpretative processes that are inherently creative and not just merely
mechanical. It is this quality of creative interpretation that provides dynamics to our
constitution. Thus per SC, judicial activism is not problematic. The real issue is only
about its legitimate limits.

Judicial activism, however, is not an unguided missile. It has to be controlled and

properly channelised. Courts have to function within established parameters and
constitutional bounds. Decision should have a jurisprudential base with clearly disemible
principles. Limits of jurisdiction cannot be pushed back so as to make them irrelevant
Courts have to be careful to see that they did not overstep their limits because to them is
assigned the sacred duty of guarding the Constitution. People of this country have
reposed faith and trust in the courts and, therefore, the judges have to act as their trustees.
Betrayal of that trust would lead to judicial despotism which posterity would not
forgive.191

189 Ran Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549 at 556
190 Supra N. 171 at 26
191 Supra N. 170 at 157

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 The great contribution of judicial activism in India has been to provide a safety
value in a democracy and a hope that justice is not beyond reach. Judicial activism has
come to stay in India and will prosper as long as the judiciary is respected and is not
undermined by negative perceptions, which have overtaken the executive and the
legislature.

7 REVIEW

The doctrine of judicial review is firmly rooted in India, and has the explicit
sanction of the Constitution.192 Several Articles in the Constitution, such as articles
13,32,131-136,141,143,144, 226,227,228,245,246,367,372 and 395 guarantee judicial
review of legislation and administrative action.

The main source of judicial review is the Supreme Court’s competence to declare
the Constitutionality or otherwise of a legislative act on the anvil of the Constitution. It is
well known that the Constitution of India adopted the principle of the Government being
responsible to the Parliament from English System, but it also subordinated all the three
organs of the state namely, Parliament, The President and the Judiciary to the
Constitution. For, all of them have only such powers as are given to them by the
Constitution.

The power of judicial review of legislation is given to the Judiciary both by the
political theory and the text of the Constitution. In political theory the Constitution was
the result of an expression of the general will of the Indian community as a whole. It is
the law which governs the State established by the Constitution in India.

The power of the Court to declare legislative enactments invalid is expressly provided
for in the Constitution under Article 13 which declares that every law in force or every
future law inconsistent with or in derogation of the Fundamental Rights shall be void; and
Article 32 vests in the Supreme Court the power to enforce these rights. Articles 131 to
136, which deal with the jurisdiction of the Court, also expressly vest in the Supreme
Court the power to review the legislative enactments of the Union and the States. Article
246, which deals with the nature of division of legislative powers between the Union and

192 Supra N. 3

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the States, is also equally relevant in this context. But even in the absence of some of
these express provisions, the Court would have had the power of review.

While Articles 372(1) and 245 (1) apply to all laws which may be inconsistent with
any part of the Constitutional, Article 13 applies only to such laws which are inconsistent
with the Fundamental Rights. Articles 372 (1) and 245 (1) therefore, supply a complete
textual basis for the judicial review of legislation while Article 13 supplies such basis
only in respect of some legislation but not all.

Indian Supreme Court is probably the only court in the history of human kind to
have asserted the power of judicial review over amendments to the Constitution.193
Judicial review of Constitutional amendments is not generally permissible except on
procedural grounds or to present the violation of the express limitations mentioned in the
Constitution itself. Before 1967 even the Indian Supreme court had held that it had no
power to strike down Constitutional amendments on substantive grounds 194and therefore
could not exercise power of judicial review in this respect. It was only after the Golak
Nath case195 in 1967 that the Supreme Court assumed the power of judicial reviews of
Constitutional amendments. The doctrine of judicial review has been taken to its pinnacle
of glory in the famous Kesavananda Bharati v. State of Kerla.196 In that historic and
momentous judgment, the court held that while amending power under Article 368 is
comprehensive enough to cover the amendment of any part of the Constitution including
the fundamental rights, the power could not be exercised so as to destroy those feature of
the Constitution which constitute its basic structure. While different judges identified
different features as constituting the basic feature of the Constitution, it is remarkable that
the doctrine of judicial review was not per se mentioned as one of the basic features of
the Constitution. In fact the doctrine of judicial review has been declared to be a basic
feature of the Constitution in Minerva Mills v. Union of India197. In this case Bhagwati,
J. has observed : “The power of judicial review is an integral part of our Constitutional

Prof. Upendra Baxi, “A Pigrim’s Progress : A Basic Structure Revisited”, Indian Bar Reviews, Special
Issue on Constitutionalism and Constitution of India, p. 53, quoted by R.R. Vadodaria, “Constitutional
crisis and Judicial Activism”, Indian Bar Review, Vol. 27 (1) 2000, p. 70
194 Supra n. 16
195 Supra n. 17
196 Supra n. 12
197 Supra n. 20

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system and without it, there will be no Government of Laws and the Rule of Law would
become a teasing illusion and a promise of unreality.

A nine Judge Bench of the Supreme Court in I.R. Coelho v. State of Tamil
1 OS
Nadu, authoritatively laid down the ambit of basic structure doctrine through a
unanimous judgment. The court has established the pre-eminence of judicial review of
each and every part of the Constitution.

The study shows that there cannot be and there is no judicial activism per se.
Judiciary has always remained active. It cannot afford to be passive. While other two
wings of the government, i.e. executive and legislature, sometimes remain passive and
sometimes become overactive, but judiciary functions within its framework and is bound
to work within its parameter because of constitutional device of division of powers. The
main and prior function of the judiciary is to deliver justice to all without fear or favour.
The judiciary endeavours to protect oppressed, powerless, poor and helpless people
against the injustice committed by omnipotent persons, authority or body. Judiciary
protects the weakest persons from the oppressive acts of either executive or legislatures.
When judiciary protects and provides justice to the poorest people against oppressive acts
of a private persons, authority or body, there is no hue and cry but when it protects
against tyranny of the Govt., everyone thinks about judicial activism.

During the first two decades after the commencement of the Indian constitution
the Supreme Court demonstrated a judicial self restraint super imposed by Austinian
positivist philosophy on the scope of the power of judicial review. There is a discernible
trend in the Supreme Court’s attitude from an attitude of ‘judicial hands - off to that of
‘judicial usurpation’ of essentially executive function. There is a marked transformation
in the judicial restrainvist policy of the Supreme Court during the letter half of 1970s.

The constitutional court has enormously expanded its power of judicial review
under an activist philosophy and orientation. The scope of judicial review in India should
be understood in the light of its constitutional scheme work, because the Indian judiciary
derives its strength from the constitution like other organs. That is why Dr. A.S. Anand
has stated that the judicial whistle need to be blown for a limited purpose and with

198 Supra n. 24

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caustion. It needs to be remembered that courts cannot run the government nor the
administration indulge in abuse or non-use of power and get away with it. The courts
have the duty of implementing the constitutional safeguards that protect individual rights
but they cannot push back the limits of the constitution to accommodate the challenged
violation.199

199 Supra n. 170 at 159

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