CLASS & BATCH: 12 C, E & F (2020-2021 BATCH)

TOTAL CLASS STRENGTH : 46

ANITHA O.S.
LEGAL STUDIES DEPARTMENT
BRV, CHENNAI
 DAY 5
Date : 21/4/2020 (Saturday)
TOPICS COVERED UNDER UNIT I & TO BE COVERED
UNDER UNIT I

• SOME IMPORTANT LEGAL CONCEPTS

• COMMON LAW & CIVIL LAW SYSTEM
• INQUSITORIAL& ADVERSARIAL SYSTEM
• DUE PROCESS OF LAW / PROCEDURE ESTABLISHED BY LAW
1. COURTS & JUDICIAL REVIEW
PUBLIC INTEREST LITIGATION(PIL) / SOCIAL ACTION LITIGATION (SAL) ------------------------------------------
SALIENT FEATURES OF INDIAN JUDICIARY
INDEPENDENCE OF JUDICIARY
IMPARTIALITY OF JUDGES
STRUCTURE & HIERARCHY OF COURTS
2. DIFFERENT ROLES OF THE SUPREME
SUPREME COURT, HIGH COURT, DISTRICT COURT & SUBORDINATE COURTS COURT
LAW OFFICERS IN INDIA
ATTORNEY GENERAL & ADVOCATE GENERAL
3. IMPORTANT CASES UNDER UNIT - I
APPOINTMENT, TRANSFER, REMOVAL , RETIREMENT &TRAININGS
OFJUDGES
• COLLEGIUM , IMPEACHMENT, NJA, NJES
COURTS & JUDICIAL REVIEW
INTRODUCTION
SCOPE OF JUDICIAL REVIEW IN INDIA
ROLE OF THE SUPREME COURT
COURTS & JUDICIAL REVIEW-
A. INTRODUCTION

a) What is Judicial Review?

•It is a principle or legal doctrine or a practice whereby a court can examine or review an
* executive or a **legislative act & determine if the act is incompatible with the Constitution.
Judicial Review in Foreign Jurisdictions
U.S, France & Canada: Judicial review allows the court to invalidate or nullify the law or the act of the
legislature or
the executive if they are found to be contrary to the Constitution.
U.K: Judicial review powers are restricted ; i.e. the courts do not have the power to nullify or
invalidate legislation of the Parliament.

Likewise, there may be other countries where courts may have different kinds of restrictions &
may review only one branch.
*e.g: Governmental or administrative decision
**e.g: A law or enactment made by the Legislature
 COURTS & JUDICIAL REVIEW

B. * SEPARATION OF POWERS
This theory contains 3 aspects:

Institutional separation or structural separation

It means that members of one organ of the State must not be the members of
another organ.
one organ of the State should not exercise the functions of the other organs
One organ of the Govt should not interfere in the function of the other organs

E.g: In the U.S. , the President does not sit in the Congress.

* propounded by Montesquieu, the French Political Philosopher

 SEPARATION OF POWERS

• Most democratic countries in the world have adopted in their

constitutions, partial or complete system of Separation of powers
horizontally among the 3 branches of the Govt viz.

• the legislative
• executive &
• the judiciary

• Thus the doctrine of Separation of Powers ensures that each branch has
distinct powers & responsibilities, based on organizational scheme of the Constitution.
• Constitution provides checks & balances so that no one branch exercises
its supremacy over the others or misuse the powers provided to them.
* CHECKS & BALANCES - MEANING

“POWER TENDS TO CORRUPT, ABSOLUTE POWER CORRUPTS ABSOLUTELY”---- LORD ACTON

* Origin of the concept is credited to Montesquieu.

Each branch puts a check on the other whenever there is an encroachmen or
conflict of powers among them& thereby preventing any concentration of powers in one branch.
It provides a system -based regulation that allows one branch to limit another.
ADVANTAGES OF THE SYSTEM OF SEPARATION OF POWERS

It allows for liberty as it avoids concentration of powers in one

branch.
It promotes efficiency.
It facilitates & enriches democratic discussion through the powers of
checks & balances of each branch.
The powers of judicial review allow judiciary to safeguard the checks
& balances &
to ensure the separation of powers of the other two branches of the
Government.
SEPARATION OF POWERS THEORY IN INDIA

• India which is based on the Parliamentary form of Govt ,

follows the system of Separation of Powers among the 3 branches of Govt as
prescribed in the Constitution.
• The executive branch consists of the President, the PM & the bureaucracy.
• The legislative branch includes both Houses of Parliament : the LS & the RS.
• In the judiciary, S.C is the final authority for interpreting the Constitution.
• *Judiciary is quite independent of the other 2 branches.
*Art 50:
Can we say that India follows a ‘flexible ‘ principle of “Separation of Powers”?

Or
Whether India follows Separation of Powers theory in its complete sense?

• In India, the PM & his cabinet also participate in the Legislature.

• It shows that the Indian Constitution has not adopted the doctrine of
Separation of powers in its strict sense.

• Nevertheless, the Constitution of India has sufficiently differentiated

the essential functions of the organs &
• no organ shall assume to itself what essentially belongs to another.
 CONCEPT OF * DIVISION OF POWERS

• This concept emphasizes the doctrine of division of powers b/w the

Federal or Centre & States or Provinces.
• Federal Govt has law making powers different from that of States or
Provinces.
• E.g : The subject matters on national defense & foreign affairs often
fall with the Federal Govt (UNION GOVT)&
• Matters of prisons & direct taxes may fall with the State or Provincial
Govts.(STATE GOVT).

* 7th schedule to the Constitution contains provisions related to division of powers through 3 Lists-Union List, State List & Concurrent List.
7th Schedule to the Indian Constitution---an
instance for division of powers concept
7th schedule lists the subject matters in the form of 3 Lists viz.
List 1- Union List (Central Govt through Parliament can make laws)
List 2- State List & (State Govt through State Legislature can make laws)
List -3 Concurrent List (over which the Union & State Govts have authority to make laws).
SEVENTH SCHEDULE TO THE
CONSTITUTION
UNION LIST (94 ITEMS) STATE LIST (61 ITEMS)
• FOREIGN AFFAIRS • PUBLIC ORDER
• POLICE
• DEFENSE • ADMINISTRATION OF JUSTICE
• ARMED FORCES • LOCAL GOVERNMENTS
• AGRICULTURE
• COMMUNICATIONS
• COMMERCE
• POST & TELEGRAPH • MARRIAGE & DIVORCE
• FOREIGN TRADE • ELECTRICITY BOARD
• TRADE & COMMERCE
• EDUCATION
CHECKING DIVISION OF POWERS THROUGH
JUDICIAL REVIEW
• The doctrine of division of powers stipulates & delimits subject
matters or Items on which the federal govt & Provincial / State govts
have powers to make laws.

• The scheme may also involve common items on which both govts may
have powers to make laws.

• Courts have judicial review powers to declare any law as

unconstitutional if it is enacted by breaching the demarcation.
 JUDICIAL REVIEW IN INDIA

* Judicial Review is one of the essential features of the Indian Constitution.

• It has helped to preserve the constitutional principles & values &
• the constitutional supremacy.
• The power of JR is available to the S.C & the H.Cs in different States in the matters of both
legislative & administrative actions.
• This power has been applied for the protection & enforcement of fundamental rights
• JR has also been used in matters concerning the legislative competence with regards to the
Centre- State relations

*Article 13 (2) provides explicitly the powers of judicial review to the courts in the matters of
fundamental rights
Judicial Review on Matters of Executive or Administrative
Actions & Some Important Doctrines
• Courts have employed the following doctrines while reviewing the
validity of certain executive actions :
• Proportionality
• Legitimate expectation*
• Reasonableness
• Principles of natural justice

• * Govt officials has liability in case the promises to the citizens were not
honoured.
Scope of Judicial Review in India -- Development

In India JR has developed with respect to 3 issues :

Protection of Fundamental rights as guaranteed in the Constitution

Matters concerning the legislative competence b/w the Centre &

States

Fairness in executive acts

Different Ways in which Judicial Review is Practiced
by the S.C of India
• INDIVIDUAL & GROUP RIGHTS

• CENTRE-STATE RELATIONS

• FAIRNESS IN EXECUTIVE ACTIONS

• BASIC STRUCTURE
 INDIVIDUAL & GROUP RIGHTS

Art. 13(2):
“The State shall not make any law which takes away or abridges the rights conferred by
* Part III &
any law made in contravention of this clause shall, to the extent of the contravention be void”.
Besides, ** Art 32 offers the S.C., the power to enforce fundamental rights &
provides a person the right to move the S.C . for the enforcement of those rights.
From this Article (i.e. 32) the S.C derives authority to issue
directions or orders or writs
* Fundamental Rights
**Article 226 is a parallel provision for H.C.to institute similar writs for the enforcement of f/rts
 *INDIVIDUAL & GROUP RIGHTS

• Writs in the nature of

Habeas Corpus (to order the release of person who is unlawfully detained)
Mandamus (order to a public authority to do its duty)
Prohibition (to prevent a subordinate court from continuing on a case)
Quo warranto (to issue directive to a person to vacate an office wrongfully

occupied &
Certiorari (to remove a case from a subordinate court & get the
proceedings before it).
*When a person’s f / rts are violated he can individually approach the H.C/S.C for its enforcement & if a group of persons’ rights are
violated through PIL/SAL one person on behalf of all others who got infringement can approach the H.C/S.C for its enforcement.
LIBERALISING THE RULE OF LOCUS STANDI THROUGH
JUDICIAL REVIEW & PIL

•Courts in India have liberalised the doctrine of * locus standi for the enforcement of
f/rts of those who lack access to courts due to the reasons of poverty or social &
economic disabilities.
•This method led to the development of ** Public or Social Action Litigation(PIL/SAL) .

*Right to appear before or petition before the court.

**Any public spirited person can petition or write letters to courts on behalf of the human
right violation victims or aggrieved parties.
Dr. B.R. Ambedkar , the Chairman of the Constitution Drafting Committee of the
Constituent Assembly has termed this provision as the ‘heart of the constitution”.
Name the Provision.
Ans: Art. 13(2)- Judicial review powers of the H.C.& S.C. in matters of Fundamental
Rights.
 CENTRE-STATE RELATIONS

• Judicial review has also been used in matters concerning the legislative competence with regards to the
Centre-State relations.
* Parliament has exclusive powers to make laws with respect to matters itemized in the **Union List.
Parliament & Legislature of any State have powers to make laws with respect to matters enumerated in the
***Concurrent List.
With respect to the States, the Legislature of any State has exclusive power to make laws with
respect to matters listed in the # State List
*Art 246.
** List I of 7th Schedule of the Constitution
***List III of 7th Schedule to the Constitution
# List II of 7th Schedule to the Constitution
How does judicial review power help to demarcate the
legislative competencies of Union & State?
Through judicial review power the Court ensures that Centre does not exert its
supremacy over the State matters &
Likewise States do not encroach upon matters within the ambit of the Centre.
Name the Article which delivers clear division of
law- making powers as well as room for intersection
b/w the Centre & the State.
Ans: Article 246
 JUDICIAL REVIEW &FAIRNESS IN
EXECUTIVE ACTIONS
• PRINCIPLES OF NATURAL JUSTICE{ N / J }
• For centuries courts have developed 2 principles of N / J —
* Rule against bias & the **rule of fair hearing
• Bias are of various types—pecuniary bias, personal bias, subject-matter bias, departmental bias etc.
• The rule of fair hearing is based on the Latin maxim audi alteram partem which means listen to the other party or the
other side (ie. opportunity to be heard)
• These principles are not written in any Act. They are derived from the law of nature.
• This phrase is an established principle in the Indian law practice & was applied by the S.C. in several cases***

* e.g: If a workman assaulted a manager in a factory & the same manager is appointed as the enquiry officer, such an
administrative action is really hit by the rule against bias.
** opportunity to be heard.
***e.g. Maneka Gandhi Vs U.O.I
JUDICIAL REVIEW &FAIRNESS IN EXECUTIVE
ACTIONS
• Right of Notice is another content of N / J
• every aggrieved person first has a right of notice as regards his own wrongdoing & the material which proved the same on the basis of
which action is taken against him.
Reasoned Decision /speaking order/ Disclosure of reasons in support of the order delivered / Rule of transparency
To deal with the questions of secrecy & related inefficiency & corruption in the administration,
courts have adopted the judicial method of requiring disclosure of reasons in support of the decision delivered
by the administration.
This requirement holds good even when a statute or legislation does not provide for this requirement.
Courts have emphasized that the right to provide reasons is an inherent part for justice delivery.
Reasons alone show the application of mind in decision making.
JUDICIAL REVIEW &FAIRNESS IN EXECUTIVE
ACTIONS
• PRINCIPLE OF REASONABLENESS
• PRINCIPLE OF PROPORTIONALITY
• PRINCIPLE OF LEGITIMATE EXPECTATION
Principle of reasonableness in most cases that involve State actions.
E.g: In the realm of Contract law, whenever States are parties to any contract, the courts attempt to distinguish such contracts with that
of contracts entered b/w pvt individuals or parties.
In that, pvt contracts concern personal interest, State contracts concern public good & public interest & is expected to act reasonably &
not with freedom of discretion.
Principle of Proportionality: This principle is used by the courts in Administrative Law, especially in service
matters
Essentially, Judicial review offers safeguards to the aggrieved against any * sentence or punishment that is
disproportionate & burdensome.
*E.g: The S.C. in a case held that the quantum of penalty or punishment sentenced by a Court Martial on any army
persons should not be disproportionate to the office.
APPLICATION OF AUDI ALTERAM PARTEM RULE IN
MANEKA GANDHI CASE THROUGH JUDICIAL REVIEW

• The Petitioner Maneka Gandhi’s passport was confiscated by the governmental authorities without giving her
any chance of prior hearing .

• Invoking its judicial review powers in administrative matters, the S.C held that in the matter of confiscation of
passport a hearing should have been given to the petitioner in the interest of the principles of N/J.

Consequently a hearing was given & the passport was returned to her. It is an example where the court adopted
the principle of post- decisional hearing in situations of urgency where prior hearing is not feasible
&

Recognized that a chance of hearing cannot be debarred completely.

 BASIC STRUCTURE

• The S.C has extended the practice of JR

to the matters concerning the * constitutional amendments by developing the doctrine of the
basic structure of the constitution
“…..by way of addition, variation or repeal any provision ………”
But Art 13(2) limits Parliament’s power to amend the Constitution.
In order to overcome this restriction, in 1971 , the Parliament adopted the 24 th amendment to
the Constitution
altering Arts 13 & 368 in a way that allowed itself with unlimited powers of amendments
including authority to amend the fundamental rights provisions.
Define Basic Structure.
It means those basic characters/attributes which are enshrined in the heart of the Constitution &
which cannot be repealed /replaced by any Parliament.
Hence, it is a bundle of characteristics of the Indian Constitution which can never lose their
relevance & can never be derogated.
IMPACT OF KESHAVANANDA BHARATI DECISION ON
THE PROVISION OF CONSTITUTIONAL AMENDMENT
• In 1973 in a landmark decision viz. Keshavananda Bharathi Vs State of Kerala discussed the question about
the unlimited constitutional amendment powers of the Parliament &
established the *doctrine of the basic structure or feature of the Constitution.

So Parliament can amend each & every provision of the Constitution but cannot alter the basic structure.

**This theory which has evolved through Keshavanda Bharathi case applies only to constitutional
amendments.

* This doctrine invalidates any constitutional amendments that destroy or harms a basic or essential feature
of the constitution.
** It aims at restraining the amending powers of the Parliament.
Hence every proposed amendment is subject to judicial scrutiny if it is aimed at
abrogating the basic structure of the constitution.

Hence any amendment which aims at abrogating the basic structure of the
constitution would be unconstitutional.
EVOLVING DIMENSIONS OF BASIC STRUCTURE THROUGH
CASE LAWS
BASIC STRUCTURE- EXAMPLES
RULE OF LAW
FREE & FAIR ELECTIONS
AMENDMENT (abrogating
the basic feature of the
Constitution )
JUDICIAL REVIEW
REPUBLIC & DEMOCRATIC FORM OF GOVERNMENT
FEDERALISM
SECULAR CHARACTER OF THE CONSTITUTION & STATE
SUPREMACY OF THE CONSTITUTION
SOVEREIGNTY OF INDIA