Judicial Review
Unlike in USA, even the fundamental rights are worded in
This means the power of the judiciary to examine the
constitutional validity of the executive and the legislative
actions both at the Center and states. If the courts find
them violative of the constitution, the courts declare them
invalid and unconstitutional.
Unlike in Britain, in India the Constitution (not Parliament)
is the supreme or fundamental law of the land that divides
powers not only among the three organs of the govt but
also between the Center and the states. That means, the
Constitution has imposed definite limitations on each organ
of the government and units of federation and it’s for the
courts to decide any of these limitations have been
exceeded. Hence, the power of judicial review is needed for
the courts i) to uphold the supremacy of the Constitution,
ii) to maintain federal equilibrium and iii) to protect the
fundamental rights of citizens. Thus, though we inherited
most of our institutions from the UK, we differ from it in
this regard. As against the British parliamentary supremacy,
the power of Indian Parliament is limited by a written and
federal Constitution, the fundamental rights of citizens and
judicial review.
Though the phrase ’judicial review’ is not mentioned in the
Constitution, the provisions of several articles like 13, 32,
131-136, 143, 145, 226, 245, 246, etc expressly confer the
power of judicial review on the Supreme Court and the
High Courts and acc to the Supreme Court, judicial review is
a basic feature of the Constitution. A law or an executive
order can be challenged in the SC or a HC on the grounds: i)
it infringes upon the fundamental rights ii) it is outside the
competence of the authority which has passed it, and iii) it
is violative of the constitutional provisions.
However, the judicial review of a legislation is restricted in
India when compared to that in USA, though the American
Constitution doesn’t expressly contain the concept. The
scope of judicial review is narrower in India because our
Constitution contains ‘the procedure established by law’,
thereby allowing the Supreme Court to declare a law as
invalid only if the law is outside the competence of the
authority that has passed it and the court is not expected
to examine its reasonableness, suitability and policy
aspects. In contrast, the American Constitution contains
the due process of law, thereby allowing its Supreme Court
to invalidate a law not only on the substantive ground of
legality but also on the procedural grounds of reasonablene
ss.
detail and the limitations upon them are also mentioned in
the constitution itself, thus restricting the range of judicial
review. Another aspect that restrict the scope of judicial
review is, the process of constitutional amendment in India
is not so difficult as in USA. There is certain degree of
flexibility in this regard to reverse the judgments through
constitutional amendments.
Also, a law is not held unconstitutional by courts so lighty.
Both the necessities of the time and the constitutional
fundamentals are balanced by the courts. The Supreme
Court has evolved certain principles in this regard:
i. there is a presumption in favour of constitutionality
unless the case is so clear and free from doubts.
ii. the court will not decide constitutional questions
if the case can be decided on other grounds.
iii. the court will not decide a larger constitutional question
than that is required by the case before it.
iv. the court will not hear the constitutionality of a law
unless the person who challenges it is affected by it.
Thus, the American principle of judicial review is recognized
in our constitution but to a limited extent to prevent the
judiciary to become a super-legislature as happened in USA
Nor do we fully follow British concept of parliamentary
supremacy. In fact, what exists in India is a synthesis of both
British parliamentary supremacy and US judicial supremacy.
This harmony b/w parliamentary supremacy and a written
Constitution with judicial review is a unique achievement of our
Constitution because an absolute balance of powers b/w
different organs of government is impracticable and, in practice,
the final say must go to some one of them. This is why the rigid
scheme of Separation of Powers and the checks and
balances between the organs in the US constitution has
failed in its actual working and the judiciary has assumed
supremacy under its power of interpreting the constitution
to such an extent that it is now dubbed as the safety-valve
or balance-wheel of the Constitution which is what the
Supreme Court says it is.
 Judicial Activism
Judicial acivism is one step ahead of judicial review. It is the
activism of the judges in implementing the rule of law and
an active justice delivery system is its essence.
The Indian Constitution divides the powers of the govt
among its three organs- legislature, executive and judiciary
and the judiciary is expected to stick to its domain of
interpreting the law, while the other two organs have to
protect honest public life by making and implementing
laws. But in recent years, the judiciary has tended to jump
into the domain of Executive and Legislature by expanding
the scope of judicial review over the administration and
exercising control over its discretionary powers. The
judiciary had to adopt this activist approach because the
other two organs appear apathetic and fail to discharge
their duties. The administration today is considered as least
sensitive to the needs of the public, the legislatures are a
by-word for bedlam and there have been scams involving
highest level politicians and bureaucrats. In this hopeless
situation, the individual finds himself alone and it is the
judiciary that steps in to fill that vacuum and assure him
that all is not lost. The courts issue various writs to govt
authorities to protect fundamental and other rights of
citizens or fulfill a public interest. All cases of PIL come
under this. In the process, courts also expand the scope of
fundamental rights mainly under article 14, 19 and 21
through their discretionary power of interpretation which
sometimes tends to restrict the powers of Parliament.
Public Interest Litigation is the most important vehicle of
judicial activism. In 1979, the SC decided to hear even the
cases filed by persons other than the aggrieved person to
fulfill general public interest, though the court while
entertaining a PIL would ascertain if there is any vested
interest in the PIL. The reasoning is that if a plaintiff with a
good cause is turned away merely because he is not
personally affected, that means some govt agency is left
free to violate the law and that is contrary to public
interest. The rationale behind PIL is to improve access to
justice to those poor or ignorant of their legal rights.
The trend of PIL, initiated by Chief Justice Bhagavati and
Justice Krishna Iyer, opened the gates for numerous cases
where public spirited citizens and NGOs sought judicial
intervention for protecting the rights and improving the
living conditions of the poor, protecting the environment
and many other issues in the interest of the public.
Judiciary also began considering many issues merely on the
basis of newspaper reports. One of the earliest cases of PIL
was that of Hussainara Khatoon vs Bihar,1979. In 1979, a
Supreme Court advocate Kapila Hingorani drew the SC’s
attention to a series of articles in a newspaper exposing the
plight of Bihar undertrial prisoners, most of whom had
been under pretrial detention for more than the period
they could have been imprisoned if convicted. The Court
accepted the locus standi of the advocate and decided the
case in favour of the undertrials observing that if it appears
likely to take more than 18 months to begin the trial, the
prisoners may be set free. In 1980, two professors of law
wrote a letter to the editor of a newspaper describing the
barbaric conditions of detention in the Agra Protective
House for Women which was made the basis of a writ
petition in the Supreme Court. The exploitation of
workmen at construction sites in violation of labour laws
was brought to the attention of the Supreme Court by a
letter. The slave-like condition of bonded labourers in
quarries was brought to the attention of the Court by a
social activist organisation. A journalist moved the court
against the evictions of pavement dwellers of Bombay.
Several cases of this type followed.
Public Interest Litigation(PIL) is a good thing for the legal aid
movement when it is used to enforce the rights of the poor and
disadvantaged. But it has now been diluted to interfere with the
decisions of the government on a range of policy matters and
supervise it actions and inactions. The social action dimension
of PIL has been diluted and eclipsed by another type of
“public cause litigation” in courts. This is a type of judicial
activism unparalleled in any other judiciary. Examples of
this type of intervention by the Court are innumerable. In
the interest of preventing pollution, the Supreme Court
ordered control over automobile emissions, air and noise
and traffic pollution, gave orders for parking charges,
wearing of helmets in cities, cleanliness in housing colonies,
disposal of garbage, control of traffic in New Delhi, made
compulsory the wearing of seat belts, ordered action plans
to control and prevent the monkey menace in cities and
towns, ordered measures to prevent accidents at
unmanned railway level crossings, prevent ragging of
college freshmen, for collection and storage in blood banks,
and for control of loudspeakers and banning of fire
crackers.
Matters of policy of government are subject to the Court’s
scrutiny. In recent years, the distribution of food-grains to
persons below poverty line was monitored, leading the PM
to remind the Court that it should not interfere in the
policies of govt. The Supreme Court has directed the most
complex task of interlinking rivers in India. All these
managerial exercises by the Court are hung on the dubious
jurisdictional peg of enforcing fundamental rights under
Article 32. In reality, no fundamental rights of individuals or
any legal issues are at all involved in such cases. The Court
is only moved for better governance and administration,
which does not involve any proper judicial function.
In the 1990s, in its most activist and controversial
interpretation of the Constitution, the Supreme Court
appropriated the constitutionally conferred power of the
President to appoint judges after consultation with the CJI.
In no Constitution of the world is the power to select and
appoint judges conferred on the judges themselves. Since
the mid-1990s, Judiciary has also tried to strengthen the
independence of investigating agencies mainly CBI as their
credibility has been fatally eroded over years. These
agencies protect the strong and powerful through various
tactics of delay and technical evasion while the less fortune
rot in jails for pretty offences. The SC ordered and actively
monitored thorough investigation by the CBI into many
cases like the Jain Hawala case involving ministers and
officials, the fodder scam involving the former Chief
Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case
involving the former Chief Minister of Uttar Pradesh,
Mayawati, and the recent prosecution of the Telecom
Minister and officials in the 2G Telecom scam case. In 2010,
the SC ruled that the SC and the HC have the power to
order the CBI probe into cognizable offences even without
the consent of the state govts on the ground that the
doctrine of separation of powers can’t curtail the power of
judicial review where fundamental rights are violated.
In 1993, The Supreme Court even issued orders on the
conduct of military operations in Hazratbal, Kashmir where
the military had as a matter of strategy restricted the food
supplies to hostages. The Court ordered that the provision
of food of 1,200 calorific value should be supplied to
hostages. Commenting on this, an Army General wrote:
“For the first time in history, a Court of Law was asked to
pronounce judgment on the conduct of an ongoing military
operation. Its verdict materially affected the course of
operation.”
Even proceedings of Legislatures are controlled by the
Court in spite of Article 212 which states that Courts are
not to inquire into any proceedings of the legislature. In the
Jharkhand Legislative Assembly case, the Supreme Court
ordered the Assembly to conduct a Motion of Confidence
and ordered the Speaker to conduct proceedings according
to a prescribed agenda and not to entertain any other
business. Its proceedings were ordered to be recorded for
reporting to the Court.
Critical Evaluation
Judicial activism has great impact on the political system: i)
it has democratized the judicial system by giving not just to
affluent individuals, businessmen and corporations but also
to poor and disadvantaged groups access to courts. ii) it’s
enforced executive accountability, exposed corruption at
high levels and initiated penal action against top politicians
and public servants. iii) it has strictly enforced env. laws
leading to closure or relocation of numerous industries. iv)
it has also made the electoral system more free and fair. In
fact, all these are the matters to be handled by the
executive under the supervision of the legislatures. But if
the two organs default in their duties and compromise with
rampant corruption, there is no other forum than judiciary
that people can approach for remedy. However, that the
political branches of govt are not performing well can not a
justification for judicial overreach, because the allegation
can also be made against courts regarding the cases
pending in courts (60000 in SC and 4000 in HCs) for 50 yrs .
Every attempt to disregard the separation of powers has
shaken the foundations of the Constitution. The temptation
to rush to the Supreme Court and 21 High Courts for any
grievance against a public authority has also deflected the
citizens’ primary responsibility in a representative self govt
of making the legislators and the executive responsible for
their actions.
Justice Jackson of the U.S. has aptly said: “The doctrine of
judicial activism which justifies easy and constant readiness to
set aside decisions of other branches of Government is wholly
incompatible with a faith in democracy and in so far it
encourages a belief that judges should be left to correct the
result of public indifference, it is a vicious teaching.” Judicial
activism is alright as long as it protects the rights of people but it
must not lead to governance by the judiciary. Therefore, unless
the parameters of PIL are strictly formulated and strictly
observed by the Supreme Court, PIL which is so necessary
in India, is in danger of becoming ineffective due to its
indiscriminate use.
Towards a true Constitutional Court
The creation of four regional Courts of Appeal as final appellate
courts, while restricting the Supreme Court of India to its true
function as a Constitutional Court, has become imperative.
The importance of decentralisation of the administration of
justice as a means of realising better access to judicial
institutions has been argued strongly. Although Justice
Krishna Iyer has advocated the setting up of four regional
benches of the SC, my proposal to create four regional
Courts of Appeal as final appellate courts while restricting
the Supreme Court of India to its true function as a
Constitutional Court, would be a more effective means.
Over 60 years, the Supreme Court's extraordinary power
has manifested itself in the form of judgments
encompassing every sphere of the nation's activity. No
grievance has been too insignificant to attract the court's
palliative and curative jurisdiction. Inspired by the desire to
give true meaning to the Constitution's promise of justice,
liberty and equality for all, no litigant has been turned away
by the Supreme Court, and there is virtually no area of
human endeavour in regard to which it has not exercised
its jurisdiction, original or appellate.
However, the problem of mounting arrears is a price to be
paid for the court's metamorphosis into a powerhouse of
judicial activism. This calls for a reassessment of the
normative and constitutionally mandated role of the Apex
Court. Merely augmenting the number of judges in the
Supreme Court may not solve the problem of arrears. On
the contrary, there is good reason to believe that
expanding the capacity of the court may aggravate rather
than alleviate the inefficiencies in the current system.
A cursory glance at the Supreme Court's Practice and
Procedure Handbook will reveal how far the court has
strayed from its original character as a Constitutional Court
and gradually converted itself into a mere court of appeal
which has sought to correct every error it finds in the
decisions of the 21 High Courts and numerous Tribunals
from which appeals lie to it. The jurisdiction of the SC may
now be invoked in relation to the matters falling within any
of 45 categories listed in the Practice and Procedure
Handbook. These include the entire gamut of routine cases
involving labour law, the rent act, direct and indirect taxes,
acquisition of land, service law, criminal law, family law,
and so on. These 45 heads further have 140 sub-categories.
If an Apex Court attempts to adjudicate all such cases, it
will obviously defeat the great purpose of its creation.The
cause of justice and the interests of the litigant public
would be best served if the court entertains only those
cases which measure up to the national/public importance.
The cases which do not raise questions of national or public
significance should be finally decided by intermediate
courts which are to be created by a constitution amendme.
Previous attempts to tackle arrears by increasing the
number of judges have proven unsuccessful. The original
strength of eight judges in 1950 has progressively been
increased by amendments to the Supreme Court (Number
of Judges) Act of 1956, to 11 in 1956, 14 in 1960, 18 in
1977, 26 in 1986 and 31, today. The 140 categories of cases
spanning matrimonial, rent control, labour, service, land
acquisition and other matters entertained by the Supreme
Court today would belong to the exclusive jurisdiction of
the Courts of Appeal that would be established in the four
regions of the country. The chartered High Courts of
Bombay, Calcutta and Madras, and additionally, the High
Court of Delhi, could themselves well be the seats of these
Courts of Appeal which would be manned by judges of the
same calibre as the judges who would otherwise be
elevated from the High Courts to the Supreme Court. The
age of retirement of the Judges of the Courts of Appeal
would be 65 as, logically, they would need to have a higher
retirement age than Judges of the High Court.
Correspondingly, the age of retirement of Supreme Court
Judges may have to be enhanced to 68 or even 70 years as
is common in countries like Australia and Canada. The
Supreme Court would then be left with only those cases
which would fall within the jurisdiction vested in it by the
framers of the Constitution and covering essentially the
following matters: 1) all matters involving substantial
questions of law regarding the interpretation of the
Constitution of India or matters of national or public
importance; 2) Settling differences of opinion on important
issues of law between High Courts or between Courts of
Appeal; 3) Validity of laws, Central and State. 4) the judicial
review of Constitution Amendmt acts; 5) Resolving conflicts
b/w States and the Centre or b/w two States, as well as the
original jurisdiction to dispose of suits in this regard; and 6)
Presidential References under Article 143 of the
Constitution.
The Constitution should be amended by adding Article
136A, whereby the regional Courts of Appeal would
exercise the powers which were hitherto being exercised
by the Supreme Court under Article 136 of the
Constitution. This means that the Courts of Appeal would
finally decide all cases arising from the High Courts relating
to the 140 sub-categories mentioned earlier, without any
further appeal lying to the Supreme Court. If, however, any
question arises before a Court of Appeal which would fall
within the newly carved-out jurisdiction of the Supreme
Court as elaborated above, it would refer the same to the
Supreme Court for decision. Similarly, I would omit Article
32 from the original jurisdiction of the Supreme Court. This
means that actions alleging breaches of fundamental rights
would be brought before any of the Courts of Appeal
instead of the Supreme Court which would only exercise its
appellate jurisdiction in such cases if questions are
presented whose resolution will have immediate
importance far beyond the particular facts and parties
involved. (K.K. Venugopal is a Senior Advocate, Supreme Court.)