Professional Documents
Culture Documents
Judicial Review
Judicial Review
Judicial review
By Diganth Raj Sehgal - July 24, 2022
This article is written by Abhinav Rana, from the University School of Law and Legal
Studies, GGSIPU Dwarka and Nishka Kamath, a student of Nalanda Law College, University
of Mumbai. This article explains the concept of judicial review along with its importance,
scope, features, and functions, inter alia. It also discusses the grounds of judicial review in
great detail. Moreover, the limitations of judicial review are discussed in great detail.
Table of Contents
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1. Introduction
2. Why would you ask?
3. History of Judicial Review
4. Why the judicial review is important
5. Scope of judicial review
6. Features of Judicial Review
6.1. Power of judicial review can be exercised by both the Supreme Court and high courts:
6.2. Judicial Review of both state and central laws:
6.3. Judicial review is not automatically applied:
6.4. Judicial review is not suo motu
6.5. Principle of Procedure established by law:
7. Functions of judicial review
8. Judicial review can be done by whom?
9. Judicial review of ordinances
10. Judicial review of Money Bill
11. Grounds for Judicial Review
11.1. Constitutional Amendment
11.2. Illegality
11.2.1. Lack of jurisdiction
11.2.2. Excess of jurisdiction
11.2.3. Abuse of jurisdiction
11.2.3.1. Malfeasance in office/improper purpose
11.2.3.2. A mistake apparent on the face of the record
11.2.3.3. Consideration of extraneous material
11.2.3.4. Mala fide management of power
11.2.3.5. Fettering discretion
11.2.4. Failure to exercise jurisdiction
11.3. Irrationality (Wednesbury test)
11.4. Procedural impropriety
11.4.1. Rule against bias
11.4.2. Rule of fair hearing
11.5. Proportionality
12. Types of judicial review
12.1. Reviews of legislative actions
12.1.1. Shankari Prasad case
12.1.2. Sajjan Singh case
12.1.3. Golakh Nath case
12.1.4. Keshavananda Bharati case
12.1.5. Indira Gandhi case
12.1.6. Minerva Mills case
12.2. Review of administrative actions
12.3. Review of judicial decisions
12.3.1. Golaknath case and Minerva Mills case
12.3.2. Bank Nationalisation case
13. Allied principles of judicial review
13.1. Principle of comity
13.2. Principle of subsidiarity
13.3. Principle of contextuality
13.4. Principle of proportionality
13.4.1. Examining the means
13.4.2. Examining the end
13.4.3. Examining the balance between means and end
14. Constitutional provisions for judicial review
15. Procedure for judicial review in India
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Introduction
Law plays an important role in today’s society. People have given up on their rights and
entered into a contract with the government in return of which the government gave them
protection against the wrong. This is known as the Social Contract Theory given by Hobbes.
In this phase of Rule of Law, the law without justice can become arbitrary and can be
misused. So to keep check and balance on the power of each organ of government we have
further adopted Judicial Review. Judicial review is the process by which the court declares
any law which goes against the constitution as void. We have adopted this feature from the
United States Constitution. But it took a lot of years to fix this feature in our constitution.
Judiciary has played an important role in this regard. Judicial Review can be of
Constitutional Amendments, Legislative actions and of Laws made by the legislature. In this
research paper, we will discuss the history, growth, features and types of Judicial Review
with Indian case laws.
In India, there are three organs of government namely Legislature, Executive and Judiciary.
The Legislature performs the function of making the laws, the Executive
executes/implements the laws and the Judiciary keeps a check on both the organs specified
above and makes sure the laws being made and implemented are not ultra vires to the
Constitution of India. To make these organs work in their specified limits our constitution
has the feature of Separation of Power. Article 50 of the Indian Constitution talks about the
separation of power.
This concept is not followed in the strict sense as compared to the USA from where it has
been adopted. The concept of Judicial Review has been adopted from the American
Constitution. The Judiciary has the power to set aside any law passed by the parliament if it
intervenes in the Constitution of India. Any law passed by the legislature that contravenes
the Constitution can be made null and void by the Judiciary. Under Article 13(2) of the
Constitution of India, any law made by the parliament that abridges the right conferred to
the people under Part 3 of the constitution is void-ab-initio. The power to interpret the
Constitution of India to its full extent lies within the Judiciary. It is the protector of the
Constitution of India. Power of Judicial Review is vested in many articles such as 13,
32,131-136, 143, 226, 145, 246, 251, 254 and 372.
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Article 372(1) talks about Judicial review of the pre-constitutional laws that were in force
before the commencement of the Constitution of India.
Article 13(2) further talks about any law made by the parliament after the commencement
of the constitution shall be declared null and void by the Court.
The Supreme Court and High Court are said to be the guarantors of Fundamental given by
the constitution. If any person’s Fundamental right is violated he/she can approach the
court under Article 32 or Article 226 of the constitution.
Article 251 and 254 states that if there is any inconsistency between the union and state
law, the law of union shall prevail and the state law shall be deemed void.
From the L. Chandra Kumar vs. Union of India (1997) case to the Indira Nehru Gandhi vs.
Shri Raj Narain & Anr (1975) case, from the Golakhnath vs. State of Punjab (1967) to the
Minerva Mills Ltd. vs. Union of India (1980), the doctrine of judicial review has been an
integral part of the Indian legal system, especially in cases where the law-making
authorities have acted in contradiction to the supreme.
Judicial Review is in the news because of the order passed by the Supreme Court permitting
a floor test in the Maharashtra Assembly. An issue was raised in this case as to “Whether
the court can have the authority to review the decision of the Governor?”, to which senior
advocate Dr. A.M. Singhvi contended that the court has the authority to exercise its power
of judicial review to determine the Governor’s satisfaction while commanding a floor test.
Another instance of judicial review is the recent verdict passed by the Supreme Court of the
United States in the case of Dobbs v. Jackson Women’s Health, which overturned Roe v.
Wade (1973) on abortion laws.
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Afterwards, the word judicial review was summarized in Marbury V. Madison, 1803. In this
case, the term period of President Adam belonging to the federalist party came to an end
and Jefferson the anti-federalist came to power. On his last day, Adam appointed the
members of the federal party as judges. But when Jefferson came to power he was against
this. So he stopped Madison the secretary of state, from sending the appointment letter to
the judges. Marbury, one of the judges, approached the Supreme Court and filed a writ of
mandamus. Court refused to entertain the plea and first opposed the order of the
legislature i.e Congress and thus the US Supreme court developed the doctrine of judicial
review.
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It also helps in intercepting the misuse of power by the legislature and the executive.
It aids in maintaining the equilibrium between the centre and the state, thus keeping a
federal balance.
The law violates the fundamental rights that are enshrined by the Constitution.
The enacted law goes beyond the capacity or power of the official(s) in charge that
enacted it.
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for any violation of a fundamental right or for a question of law. But the final power to
interpret the constitution lies with the apex court i.e Supreme Court. The Supreme Court is
the highest court of the land and its decisions are binding all over the country.
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In India, judicial review can be done by the High Courts as well as the Supreme Court. The
powers of judicial review are delegated to the courts under Article 226 and Article 227 of
the Constitution of India, as far as the High Courts are concerned, and in Article 32 and
Article 136 with regard to the Supreme Court.
In the case of AK Roy v. Union of India (1982) 1 SCC 271 it was held that the
president’s power to pass an ordinance is not a subject of Judicial Review.
In the case of T. Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198 it was
held that just like legislative power cannot be questioned, the ordinance made on the
ground of motive or non-application of mind, or necessity cannot be questioned.
In the present scenario, a “money bill” is beyond the power of Judicial Review.
Article 212 of the constitution of India provides that the Courts cannot inquire proceedings
of the Legislature on the ground of any alleged irregularity of procedure.
Article 255 of the constitution of India provides that the recommendation and previous
sanction are matters of procedure only.
In the case of Mangalore Ganesh Beedi Works v. State of Mysore AIR 1963 SC 589,
it was held that the appellant was liable to sales tax under coinage act which was changed
by coinage amendment act, 1955. So the contention was that as it enhanced the tax the bill
should be passed as a money bill and as it was not passed as a money bill the tax should be
held as invalid.
The Supreme Court held that the coinage amendment act 1955 substituted new coinage in
place of old coinage and thus it was no tax.
By the way of obiter dicta, it was observed as if it would be a tax serving bill then also it
was out of the proceedings of judicial review.
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Constitutional Amendment
Judicial Review in this phase is done for all the constitutional amendments done by the
authority. All those amendments which are in violation of Fundamental Rights are declared
void and it is held to be unconstitutional. All the judicial review for the constitutional
amendments can be traced in history. We have already seen in the above-mentioned case
laws that the constitutional amendments were challenged and all those against the
constitution are declared unconstitutional and held void. We can trace the marks of judicial
review of the constitutional amendment in these cases: Shankari Prasad V. Union of India;
Sajjan Singh V. State of Rajasthan; I.C. Golaknath V. State of Punjab; Kesavananda Bharti
V. State of Kerala; I.R Coelho V. State of Tamil Nadu. All these cases are discussed in detail
above in this paper.
Illegality
Lack of jurisdiction
If an administrative authority has no right to perform a particular act, any purported action
of such a right will be, as a matter of course, void and non-existent in the eyes of the law.
Say for instance, if a minister has no power to revoke a licence, an order of revocation
passed by him will be ultra vires and lack jurisdiction, as held in the case of R. vs. Minister
of Transport (1934).
Further, in the case of Rafiq Khan vs. State of U.P. (1954), it was held that the Panchayat
Raj Act, 1947 did not give the Sub-Divisional Magistrate the authority to modify the order of
conviction and sentence passed by a Panchayat Adalat. The order passed by the Panchayat
Adalat could either be quashed altogether or have the jurisdiction of the Panchayat Adalat
revoked. The Magistrate upheld the conviction of the accused in respect of one of the
offences only and quashed the conviction in respect of the other offences. So, the Allahabad
High Court subdued the conviction relating to the other offences via issuing a writ of
certiorari.
A court may review an administrative action on the grounds that the authorities exercised
jurisdiction that they did not have originally. This review may be done on the following
grounds (inter alia):
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1. That the rules under which the administrative authority is composed and is exercising
jurisdiction, are in itself unconstitutional.
2. That the authority is not properly made in accordance with the rules and regulations or
the laws.
3. That the authority has mistakenly made a decision upon a jurisdictional fact, hence,
might have assumed jurisdiction not belonging to the authority.
4. That there were some crucial preliminary terms that were conditions precedent for the
exercise of the jurisdiction but were disregarded.
Excess of jurisdiction
It is mandatory that each and every administrative authority must exercise its power within
the purview it is entrusted with, i.e., it must not exceed the boundaries and govern
everything by staying confined to the four corners of the law. In case the power is
exceeded, such an action will be deemed to be ultra vires and therefore void.
In one case [County Council vs. Attorney General (1902) AC 165], a local authority had the
power to operate tramways, but this authority began to operate a bus service, thus acting
ultra vires and therefore void. Pertaining to the facts of the case, an injunction was applied
for and duly granted by the Court.
Abuse of jurisdiction
This ground basically means that there should not be an act done in bad faith (mala fide
actions), but authority must always exercise its discretion for the reason it is allotted to
them and must act in good faith (bona fide actions).
In the case of Pratap Singh vs. State of Punjab, AIR 1964, SC 72, a civil surgeon applied for
a leave preparatory to his retirement and was granted such a leave, which was withdrawn
later. He was placed under suspension and a departmental inquiry was ordered against him,
which led to his dismissal from the post of civil surgeon. Here, a petition was filed asserting
that such an act was performed at the behest of the Chief Minister, who wanted to settle a
score with him since the time he had denied engaging in any illegal activities with the
Minister. The Hon’ble Supreme Court, after scrutinising the facts and situations, quashed
the order as it was mala fide in nature.
Abuse of jurisdiction may, inter alia, occur in some of the instances as under-
Administrative power cannot be used for the purpose for which it is not allotted. In
Attorney-General vs. Fulham Corporation, the administration was entitled under the law to
set up warehouses for the non-commercial use of local occupants. The corporation then
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agreed to open a laundry on a commercial basis. The corporation was held to have acted
ultra vires the law.
A mistake is proclaimed to be obvious when one can establish such an inference just by
analysing the record without having to rely upon any other information.
In Syed Yakoob vs. K.S. Radhakrishnan (1963), the Hon’ble Supreme Court stated that
there was a seemingly obvious legal mistake on the face of the record where the outcome
of the law recorded by an inferior tribunal is as follows:
2. Is in ignorance of it,
3. Is in disregard of it,
In exercising power, the person in authority or the authorities must pay heed to all the
appropriate circumstances and dismiss insignificant circumstances.
In R vs. Somerset County Council, ex p Fewings (1955), the local authority decided to put a
ban on stag hunting on the property inhabited by the council and assigned it for
recreational purposes. The Court of Appeal accepted that, in some situations, there could be
a rightful ban on stag hunting. In this case, animal welfare and social considerations were
relevant to take into account.
When a decision taken by the decision-maker is taken dishonestly with a certain ulterior
motive in his/her mind, such a person may be said to have acted in bad faith.
In R vs. Derbyshire County Council, ex p Times Supplemets (1991), the local education
authorities were under a task to call the attention of qualified persons to fill the vacancies of
a certain post(s). The articles published in that newspaper (The Times) were read by a
large number of potential applicants, but despite being aware of this fact, the Council
decided to halt advertising such vacancies in the paper, and thus, the papers were sought
for judicial review. The Derbyshire County Council reached a verdict that the educational
council had taken such a decision not on the basis of educational grounds but motivated by
a malicious desire for retaliation; and thus, the educational council has acted in bad faith,
i.e., with mala fide intentions.
Fettering discretion
An authority may act ultra vires, i.e., beyond its capacity in times when a certain power to,
say, adopt a policy, is exercised without effectively giving it a thorough thought about it,
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The same was held in the case of H Lavender & Sons vs. Minister of Housing & Local
Government (1970), wherein the local planning authority denied permission to Lavender to
take extra sand and gravel from a high-grade agricultural land. Aggrieved by the decision,
an appeal was made to the Minister of Housing and Local Government, but the appeal was
dismissed as the Minister of Housing and Local Government was convinced to do so by the
Minister of Agriculture, stating that such land must be conserved for the purpose of
agriculture. This decision was set aside by the Court as the Minister, even after having the
capacity to object, reached a decision based solely on the opinions of another Minister.
Here, the Minister of Housing and Local Government did not have an open mind on
Lavender’s appeal, and thus, fettered his discretion.
1. Unauthorised delegation,
4. Non-application of mind,
4. The decision of the authorities is so whimsical, twisted, arbitrary, absurd and unfair that
no rational person can reach a conclusion which has been reached by the authorities.
Procedural impropriety
Procedural impropriety needs a ‘fair procedure’ to be followed in every administrative
action. The fair procedure would include
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Moreover, procedural impropriety also comprises the failure to observe regulations laid
down in statutes along with the failure to observe the basic common rules of natural justice,
as stated above.
In the classic case of Ridge vs. Baldwin (1963), there is a revelation of judicial insistence on
the fairness of the procedure notwithstanding the kind of authority deciding a question. The
Chief Constable of Brington, Mr. Ridge, was dismissed from his duty following charges of
conspiracy to pose a hindrance in the path of justice. In spite of the fact that the allegations
imposed upon Ridge were proven false, the judge made comments which were critical of
Ridge’s conduct. Thereupon, Ridge was dismissed from the force. He was not even invited
to attend the meeting wherein the conclusion to remove him from work was reached, even
though he was given the chance to appear before the Committee which inferred the
previous decision. Ridge then made an appeal to the Home Secretary, which was dismissed.
Ridge then sought a declaration on the grounds that the rules of natural justice were
violated and that the Home Secretary went beyond his powers, i.e., ultra vires, while
dismissing the appeal. This case law is of significant importance as it pinpoints the linkage
between the right of an individual to be heard and the right to know the charges brought
against the individual.
Proportionality
Proportionality means that the administrative authority must not be more drastic than it
ought to be to seek the desired outcome. Proportionality is sometimes explained by the
expression ‘taking a sledgehammer to crack a nut’. This doctrine endeavours to balance
means with ends. Proportionality shares space with ‘reasonable restrictions’.
In Chairman, All India Railway Board vs. Shyam Kumar and Ors. (2010), the Apex Court
had defined the proportionality test as the “least injurious means” or the “minimal
impairment test” for protecting the fundamental rights of citizens and guaranteeing a fair
equilibrium between the individual rights and interests of the public.
While reviewing the action of an administration on the doctrine of proportionality, the court
generally considers the following points:
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1. Whether the relative merits of varied objectives or interests are properly evaluated and
balanced in a just manner?
2. Whether the actions under consideration were, in the situations, extremely restrictive or
inflicted a needless burden?
In Sardar Singh vs. Union of India (1991), an Army Jawan who was serving in the Indian
Army was granted leave. While proceeding to his hometown, he purchased 11 bottles of
sealed rum and one bottle of brandy from the army canteen, even though he was
authorised to carry only 4 bottles. In the Court Martial Proceedings initiated against him on
those grounds, he was sentenced to undergo rigorous imprisonment for 3 months and was
dismissed from his service. The Supreme Court withheld the award of punishment granted
to the appellant. It further held that the action taken against the appellant was arbitrary
and the penalty was severe.
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1. Article 368 of the Constitution provides the President with the power to bring about
changes in the Constitution.
2. Ordinary laws and constitutional amendments are not the same thing.
3. The core structure of the Constitution cannot be toppled with or amended by the
Parliament.
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Principle of comity
As per the principle of comity, all the state authorities should support the functions of each
other that are important to enable authorities to perform their duties in a responsible way
as per the rules and values of the Constitution.
Principle of subsidiarity
By virtue of the principle of subsidiarity, public functions and powers should be applied at a
level where they can be undertaken properly and in a responsible way. For instance,
political questions can be better determined by the political authorities, policy matters can
be better established by the legislative branch, whereas judicial matters can be regulated in
a finer way by the judicial branch.
Principle of contextuality
In the principle of contextuality, the law needs to take into consideration the context in
which it is to be applied. Such action is performed for verifying that the role of law attains
its duty as an indicator of social engineering in society.
Principle of proportionality
On account of this principle, the courts exert their power of judicial review to determine if
there is a harmony between the limitation on the right and the lawful end sought to be
accomplished. As a part of this principle, there are three measures applied by the court,
they are-
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Ensures the right to move the Supreme Court for the enforcement of
Article 32 fundamental rights and entrusts the Apex Court with the power to issue
directions or orders, or writs.
Provides for the original jurisdiction of the Apex Court in conflicts related
Article 131
to centre-state and inter-state.
Deals with the certificate for an appeal to the Supreme Court from the
Article 134-A
high courts.
Authorises the Apex Court to exercise the jurisdiction and powers of the
Article 135
federal court under any pre-constitution law.
Empowers the Apex Court to bestow special leave to appeal from any
Article 136
court or tribunal (except military tribunals and court-martial).
Certifies the high courts with the power of judicial review and to issue
Article 226 directions or orders or writs for the enforcement of fundamental rights or
other objectives.
Entrusts the high courts with the authority of superintendence over all
Article 227 courts within their respective territorial jurisdiction (except military courts
and tribunals).
Deals with the territorial extent set by Parliament and the Legislature of
Article 245
the states.
Discusses the subject matter upon which laws can be made by Parliament
Article 246 and by the Legislatures of States (i.e., the Union List, State List, and
Concurrent List).
Article 251 Deduces the hegemony of the central laws in situations where there is a
and Article dispute between the central and state laws. Thus, the central law shall
254 prevail over the state law, and the state law will be considered void.
Article 372 Deals with the continuance in force of the pre-constitutional laws.
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General limitations
Sets a precedent
The judicial opinions of a judge once taken in a particular case would serve as the basis for
deciding another case, thus acting as a precedent.
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In L. Chandra Kumar vs. Union Of India And Others (1997), a question was raised as to
‘Whether the exclusion of the jurisdiction of the high court through Article 323 A (2)(d) and
323 (b) was in opposition to the doctrine of judicial review, which basically was a primary
feature of the Indian Constitution?’ The Court, while arriving at a decision, took several
references like the Administrative Tribunals Act, along with the Sampat Kumar Judgement
and the debates of the Constitutional Assembly. The Court, after carefully scrutinizing each
and every event, reckoned that judicial review is indeed a basic feature of the Constitution
of India. Moreover, the Court also considered the opinions of Dr. B. R. Ambedkar, who was
the Chairman of the Drafting Committee of the Constitution, on Article 25 (present Article
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32), where he asserted that this Article is the very soul of the Indian Constitution. Further,
the seven-judge Constitutional Bench also stated that “the power of judicial review over
legislative action vested in the High Courts under Article 226 and in the Supreme Court
under Article 32 of the Constitution is an integral and essential feature of the Constitution,
constituting part of its basic structure.”
Locus Standi
Considering the principle of ‘locus standi’, a petition under Article 32 of the Constitution can
only be filed by the individual(s) whose fundamental or legal rights have been violated,
however, relaxation has been given by the courts via the formation of the concept of Public
Interest Litigation (PIL). Thus, if a decision which is contemplated to be patently bad is
challenged, the courts ought not to protest in evaluating the act on the grounds of locus
standi.
Res Judicata
As per the principle of res judicata, there should be finality to binding verdicts of the court
of competent jurisdiction and no party should be irked with the same litigation a second
time. Thus, if a petition has been filed in a court that gets dismissed, the same petition
cannot be filed in the same court on the exact foundation.
Unreasonable delay
The remedies granted under Articles 32 and 226 of the Constitution must be sought within a
reasonable time unless the reason for the delay is persuasive and acceptable. Due to this
limitation, the court will decline to exercise its jurisdiction in matters of parties who have
come to seek justice after a reasonable delay and are guilty of laches.
Regardless, a point must be noted that there is no fixed period for laches, thus, every case
will be decided based on the facts and contentions of the party(ies) to the case.
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In India, all three organs of the state, i.e., the legislature, the executive, and the judiciary,
obtain power from the written Constitution, and the organs must act within the limitations
of such powers.
A note must be taken that despite the written Constitution, the fundamental rights (Articles
12 to 35) and the constitutional remedies (Articles 32, 226, 227, and 136), the legislature
still has the propensity to exclude judicial review in certain fields, namely:
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Article 53
Under Article 53 of the Constitution, the executive power of the Union is vested in the
President.
Article 72
Under Article 72 of the Constitution, the President shall have the power to grant pardons or
suspend punishments and such a power cannot be truncated by any court.
Under Articles 74(1) and (2), there shall be a Council of Ministers at the head to help and
educate the President, and the President shall work in consonance with such advice.
However, the question of whether any and if so what, advice was given to the President by
the Ministers shall not be investigated by any court.
Article 77
Under Article 77, the conduct of any business of the government shall not be a subject of
suspicion.
Article 77 and 78
Under Articles 77 and 78, there is a prohibition of judicial review to give ample freedom for
the exercise of executive power.
Article 80
Under Article 80, the composition of the Council of States is exclusively left to the discretion
of the President.
Article 103
Under Article 103, on the grounds of Article 102, the decision on questions as to
disqualifications of members shall be vested in the President and such rulings shall be
absolute.
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Article 161
Under Article 161, the power of the Governor to grant pardons, suspend punishments, etc.,
cannot be truncated by any court.
Article 361
Under Article 361, the President, Governors, and Rajpramukhs are excused from legal
proceedings in a court of law with respect to the acts performed during the term of office.
Further, the exercise of the power of the President or the Governor cannot be subjected to
judicial review based on merits, as held in the case of Swaran Singh vs. State of UP (1998).
Moreover, the courts cannot issue any guidelines in matters of such interests as held in the
case of Maru Ram vs. UOI (1981).
Besides, the court cannot ask the President or the Governor to list reasons for backing the
order passed by them as stated in the case of State of Punjab vs. Joginder Singh (1990).
Arbitrary,
Discriminatory,
Mala fide, or
When material facts were not brought to the notice of the President or the Governor.
In such cases, the action can be set aside and instructions can be issued to pass a new
ruling in compliance with the law.
Ouster clauses
An ouster clause can be defined as an effort of the legislature to preclude the actions or
rulings of any public authority from being questioned before the courts. Such clauses are
formed in order to signal to the decision-makers that they may perform without any fear of
intrusion from the court. There are two main types of ouster clauses, which are discussed
below.
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The partial exclusion of the judiciary was given consent in the case of Sampath Kumar vs.
UOI. In this case, it was held that the decision of the administrative tribunal can be
excluded from judicial review by the high court if the tribunal constitutes a ‘judicial
element’. In order to completely preclude judicial review, an appeal procedure has to be
established, but this is not very much appreciated in the Indian continent as it is believed
that judicial review cannot be barred completely even if there were other remedies in cases
where the tribunals used powers that were ultra vires.
In the case of Shri Kihota Hollohon vs. Mr. Zachilhu and Others (1992), a reference was
made to a statement by Professor Wade that said “Finality is a good thing, but justice is
better”. He also made an observation that many statutes render that some decisions are
“final” and that these provisions act as a bar to any appeal, but such provisions do not
hamper the operation of judicial review as the courts forbid them to act in such a way.
Thus, the normal effect of the finality clause is to not give rise to any further appeals.
Further, in the case of Union of India and Anr. vs. Tulsiram Patel and Ors. (1985), the
Hon’ble Supreme Court was dealing with Article 311(3) of the Constitution, which attaches
finality to the order of the disciplinary authority regarding whether it was reasonably
practicable to hold an inquiry or not. The Court made an observation that the ‘finality’
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clause did not preclude jurisdiction, be that as it may, but it suggested that the jurisdiction
is bounded by certain grades.
A professor in Singapore by the name of Thio Li-ann has observed that “courts generally
loathe ouster clauses as these contradict the rule of law whereby judges finally declare the
legal limits of power and also as the individual’s ultimate recourse to the law is denied.
Hence, courts try to construe these strictly to minimise their impact. In so doing, they may
be going against the grain of parliamentary will.”
A note must be taken that the ouster clause does not effectively debar judicial review of
errors of law that have an impact on the jurisdiction of the authority in the process of
making decisions. In the case of Regina vs. Medical Appeal Tribunal ex parte Gilmore; Re
Gilmore’s Application: CA 25 Feb (1957), Lord Alfred Denning stated that he finds it very
“well settled that the remedy by certiorari is never to be taken away by any statute except
by the most clear and explicit words. The word ‘final’ is not enough.” And in Anisminic Ltd.
vs. Foreign Compensation Commission (1968), it was stated that this type of clause is for
making the “decision final on the facts, but not final on the law. Notwithstanding that the
decision is by a statute made ‘final,’ certiorari can still issue for excess of jurisdiction or for
error of law on the face of the record.”
Thus, it can be deduced from the above cases that judicial review can not be eliminated by
the courts in cases where there was an excess of jurisdiction or if there was an error of law
in attaining an inference/judgement.
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Judicial self-restraint
Moreover, the policy-making process must be left to others and should not be intervened
in by the court.
In judicial restraint, the courts ‘restrain’ themselves from implementing new policies at their
discretion.
Judicial restraint aids in maintaining a balance between the three branches of the
government, that is-
1. The executive,
3. The legislature.
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It shows earnest respect for the separation of problems from the government.
It allows the legislature and the executive to comply with their obligations and job
responsibilities thereof without reaching into their area of work.
With the elimination of the locus standi principle, suo moto cases and Public Interest
Litigations (PILs) have granted the judiciary the power to meddle in matters relating to the
well-being of the general public even when the offended party did not raise any objections.
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Furthermore, there should be a clear deliberation on judicial activism and the proper use of
PILs, in order to make sure that such tools are not used for political motives. The judiciary
needs to scrutinise why a particular writ or PIL was filed in cases where a constitutional
remedy is sought. The CAA, or the abrogation of Article 370, was opposed in the Hon’ble
Supreme Court for gaining a political agenda. This is why when such cases reach the
judiciary for review, they should be carefully scrutinised as to whether there is an ulterior
motive or if it is against the betterment of the common people.
Moreover, many a time, NGOs are puppets of political parties or of those who are backed up
by international countries or communities wishing nothing but ill for the sovereignty of the
country, thus, it is high time the courts look through the transparent glass doors and
carefully examine the motives of parties seeking such remedies.
Another polemic issue on the interpretation of the Constitution occurred when the
constitutional power to appoint the Chief Justice of India (CJI) was taken away from the
President by the Hon’ble Supreme Court. Such acts must undergo careful judicial scrutiny.
Conclusion
Here in India we have adopted the concept of Separation of power so we cannot assume the
power of judicial review in full extended form. If the courts presume full and arbitrary power
of judicial review it will lead to the poor performance of work by all the organs of
government. So to keep all the functions work properly each has to work in its provided
sphere. In India, we have the concept of judicial review embedded in the basic structure of
the constitution. It helps the courts to keep a check and balance upon the other two organs
of government so that they don’t misuse their power and work in accordance with the
constitution.
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