ADMINISTRATIVE LAW

RESEARCH PROJECT

"LIMITATIONS OVER JUDICIAL REVIEW IN INDIA "

Submitted by: Submitted to:

Shivendra Vikram Singh, Mrs.PriyaVijaj

Roll-239 Faculty(Administrative Law)

Sem-VI NUSRL Ranchi

________________________________________

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

________________________________________
ABSTRACT:

The power of judiciary to review and determine the validity of a law or an order may be
described as the powers of Judicial Review’. It means that the constitution is the supreme law of
the land and any law inconsistent therewith is void through judicial review. It is the power
exerted by the courts of a country to examine the actions of the legislatures, executive and
administrative arms of government and to ensure that such actions conform to the provisions of
the nation’s Constitution. Judicial review has two important functions, like, of legitimizing
government action and the protection of constitution against any undue encroachment by the
government. Though the courts have the power of judicial review, the same cannot be exercised
in an arbitrary fashion. If the law-making power of parliament is not unlimited, the courts` power
to review the laws passed by parliament is also not unlimited. Like other organs of the state, the
judiciary derives its powers from the constitution and the judges are as much under the
constitution as anyone else. They can interpret and invalidate laws but they cannot themselves
assume the law making function; nor can they confer that function on any person or institution
other than the federal or provincial legislatures. Nor can the courts make constitutional what is
manifestly unconstitutional. Sovereignty is located neither in parliament nor in the judiciary but
in the constitution itself.

INTRODUCTION:

JUDICIAL review is the process whereby an apex court interprets a law and determines its
constitutional status. If the judiciary finds that a given piece of legislation is in conflict with any
provision of the constitution, it may strike down the same. The power of judicial review is
exercised differently in different political systems. In countries like the United Kingdom where
the constitution is largely unwritten and unitary in character and parliament is sovereign, the
courts can declare an act of parliament to be incompatible with the constitution, but they cannot
invalidate a law for being inconsistent with the constitution. In other words, the judiciary can
only interpret the constitution. The situation is different in countries where a written and federal
constitution limits the powers of parliament. For instance, in the USA, the Supreme Court can
strike down legislation enacted by Congress if it finds the same to be incompatible with the
constitution. In Germany, the Constitutional Court is empowered to shoot down not only
ordinary laws but also constitutional amendments for being inconsistent with the fundamental
character of the constitution.
In the neighbouring India, there has been a long tussle between parliament and the Supreme
Court on the scope and limits of judicial review. The twenty-fourth amendment to the
constitution passed in 1971 authorised parliament to amend any provision of the constitution.
However, the Supreme Court subsequently declared that while parliament was competent to
amend any provision of the constitution, any amendment had to conform to the basic framework
of the constitution. This led the government of Prime Minister Indra Gandhi to introduce the
forty-second amendment to the constitution during the proclamation of emergency, which
stripped the apex court of the power of reviewing an amendment to the constitution. However,
the forty-third and forty-fourth amendments undid the provisions of the forty-second amendment
regarding powers of the Supreme Court to judge the validity of constitutional amendments.

HISTORY OF JUDICIAL REVIEW:

The foundation of Judicial Review was laid down by Chief justice Marshall in 1803 in
Marburry v. Madison1 where he adopted mostly the classic arguments of Alexander Hamilton in
the federal papers No. 78. Since then, the doctrine, having passed through many vicissitudes, has
now been firmly embedded in the American constitutional system but it has also undergone
better criticism and critical speculation2.

In 1803 Marshall wrote the decision of Marbury v. Madison in which he declared that the
legislature has no authority to make laws repugnant to the Constitution and in the case of
constitutional violation the court has absolute and inherent right to declare the legislative act
void. By Marbury decisions Marshall did not intent the system of Judicial Review which was
already in the process of evolution, but by this decisions he strengthened the system to a
remarkable extent3. Bernard says: “From a historical point of view Marbury v. Madison is a
crucial importance as the first case establishing the power of the Supreme Court to review

1
1 Cr. 137 (1803)
2
Sarkar, R.C.S., “Some Aspects of Constitutional Reforms: Judicial Review and Directive Principle”, Journal of
Constitutional and Parliamentary Studies, Vol. 10, No. 1-4, 1976, p. 352.
3
Fred v. Cahill, Jr. Robert J. Steamber, The Constitution Cases and Comments, The Ronald Press Company, New
York, 1959, p. 22.
constitutionality4”. The system of Judicial Review thereafter became the integral part of the
American constitutional jurisprudence. Marshall was threatened openly by the Republicans of
ousting him from office if his verdict were to go in favour of judicial control of legislative Acts.
The threat was also a threat of impeachment. The highest judiciary of the country was overawed
by the political party. But Marshall had a great sense of nationalism and he possessed extra
ordinary strength of mind and coolness of temper and without being perturbed by the threatening
given to him to gave the solemn decision of Marbury v. Madison establishing constitutional
supremacy. By his judicial decision he nurtured in the American mind a great unifying
nationalism. Thus, Marshall brought to the Supreme Court of America a sense of dignity and
Honour. Jerre S. William remarks – “In case after case, he had been building the constitutional
structure with consistent plan and imperishable materials. The political winds blew and always
against him. But Marshall withstood and built on and on5”

On the whole, Marshall had a congenital back-ground for the establishment of Judicial Review
through his constitutional decisions. The doctrine of Judicial Review established by Chief Justice
Marshall in Marbury v. Madison is still vibrant and its forces stands unabated, although it has
ever been criticized. By 1803 Judicial Review had a long history in America. Marshall’s theory
of Judicial Review mostly depended upon his own personal view which he had held long before
he became the Chief Justice of the Supreme Court of America. But he was also inspired in his
view by Alexander Hamilton who through his essay in ‘the Federalist’ (1788) had sought to
establish the theory of Judicial Review. Hamilton’s concept of Judicial Review has became a
source of great inspiration in the Indian constitutional working. Marshall after Hamilton played a
very significant part in the development of American democracy through Judicial Review.

The Americans Bar played a very substantial part in the development of the doctrine of Judicial
Review and constitutional interpretations were due to the able and unstinted cooperation given
by the members of the bar who possessed extra ordinary forensic merits6. However Marshall’s
concept of Judicial Review had a limited scope. His philosophy of Judicial Review was that a
legislative Act in violation of the constitution was void. He did not envisage that even an

4
Schwzarts, Bernard, The Reins of Power, A Constitutional History of the United States, Hill & Mong, New York,
1963, p. 51.
5
Williams Jerre S., The Supreme Court Speaks, University of Texas Press, 1956, p. 29.
6
Kelly Alfred H. and Harbison, Windfred A., The American Constitution : its origins and development, W.W. Hart
& Co. Inc., U.S.A., p. 274.
arbitrary and unjust legislation would be considered to be the legislation against the will of
sovereign people for which the sovereign people did not delegate power to the legislature and as
such the law should be void. This development took place later on the enactment of the IVth
Amendment.

JUDICIAL REVIEW AS THE BASIC FEATURE OF THE CONSTITUTION:

Judicial review is a highly complex and developing subject. It has its roots long back and its
scope and extent varies from case to case. It is considered to be the basic feature of the
Constitution. The court in its exercise of its power of judicial review would zealously guard the
human rights, fundamental rights and the citizens’ rights of life and liberty as also many non-
statutory powers of governmental bodies as regards their control over property and assets of
various kinds, which could be expended on building, hospitals, roads and the like, or overseas
aid, or compensating victims of crime.

Judicial review means the reconsideration of a degree or sentence of an inferior Court, but these
days the concept has undergone great changes and the literal meaning of judicial review is no
longer valid. The power to judicially review any decision is an extraordinary power vested in a
superior court for checking the exercise of power of public authorities, whether they are
constitutional, quasi-judicial or governmental. It is only available for exercise when a person
who is aggrieved by such a decision brings it before the court. It is common knowledge that
while discharging executive functions, public authorities take various decisions for which they
should be allowed sufficient space for a proper exercise of discretion. It is keeping this in mind
that, by and large it is only the decision making process that is actually subjected to judicial
review.

Legislature, executive and judiciary under the Constitution are to exercise powers with checks
and balances, but not in water-tight rigid mould. In India, by basis of Arts. 32 and 136, the
Supreme Court can exercise the power of judicial review. Similarly, under Art. 226 and 227
High Courts have a power of judicial review. Judicial review in India comprises of three aspects:

(1) Judicial review of legislative action,

(2) Judicial review of administrative action,

(3) Judicial review of judicial decisions.

The decision of the Honorable Supreme Court of India in Kesavananda Bharti’s case7 marked
and explained the term which is called ‘basic structure’ to measure whether the Parliament is
seeking to destroy the Constitution, by using its powers under art. 368, which was so far,
understood to be a power, the exercise of which was not subject to Judicial scrutiny. Basic
Structure is not contained in one or more provisions of the Constitution of India, but it is
supposed to be the sum total of the core of our Constitution.

Also in the same case the honorable court has interpreted the scope and meaning of judicial
review. “...The power of judicial review is, however, confined not merely to deciding whether in
making the impugned laws the Central or state legislatures have acted within the four corners of
the legislative lists earmarked for them; the courts also deal with the question as to whether the
laws are made in conformity with and not in violation of the other provisions of the
Constitution.... 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. Review has thus become an integral part of our
constitutional system and a power has been vested in the high courts and the Supreme Court to
decide about the constitutional validity of provisions of statutes. If the provisions of the statute
are found to be violative of any Art. Of the Constitution, which is the touchstone for the validity
of all laws, the Supreme Court and the high courts are empowered to strike down the said
provisions.”

In Minerva Mills vs. Union of India8, it was observed by the Supreme Court that the clauses of
art. 31-C as introduced by the Constitution (42nd Amendment) Act, 1976, which required to take
away the power of judicial review were unconstitutional. However, judicial review was not held
to be part of the basic structure of the Constitution by the majority in this decision, although
Bhagwati J in his minority decision traced the power of judicial review to Arts. 32 and 226 and

7
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (1973) 4 SCC 225
8
(1980) 3 SCC 625
observed it to be a part of the basic structure of the Constitution, and if taken away by a
constitutional amendment would amount to ‘subversion of the Constitution

In the case of State of Madras v. V. G. Row9, Chief Justice Patanjali Shastri examined as to
whether the power of judicial review vested in the High Courts and in the Supreme Court under
Arts. 226, 227 and 32 is part of the basic structure of the Constitution: It is to be presumed that
those who work the Constitution, those who compose the legislature and those who compose the
executive and the judiciary know their functions, their limitations and their duties. It is therefore
to be expected that if the executive is honest in working the Constitution, then the executive is
bound to obey the legislature without any kind of compulsion laid down in the Constitution.
Similarly, if the executive is honest in working the Constitution, it must act in accordance with
the judicial decisions given by the Supreme Court. In so far as the Constitution gives supremacy
to that is a matter of constitutional obligation which is implicit in the Constitution itself.

Golaknath v. State of Punjab10 was the first time that limitations on the amending power of
Parliament under Article 368 were recognized. The majority judgment was written by Chief
Justice Subba Rao proceeding on the premise that:

(a) Article 368 contained merely the procedure, not the power of amendment;

(b) The power of Amendment lay in Entry 97of List I and

(c) As a consequence of the above, a Constitutional Amendment would be law within the
meaning of Article 13.

Hence, the power of judicial review is a part of the basic structure of the Constitution. The
Supreme Court of India as the guardian of democratic morality will without a doubt remember
that the exercise of constitutional power is persistent in the final analysis by the intellectual
integrity, independence and fearlessness of judges.

CONSTITUTIONAL PROVISIONS AND LIMITATION FOR JUDICIAL REVIEW :

9
1952 AIR 196
10
1967 AIR 1643
The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution. Parliament is
not supreme under the Constitution of India. Its powers are limited in a manner that the power is
divided between Centre and States.

Moreover the Supreme Court enjoys a position which entrusts it with the power of reviewing the
legislative enactments both of Parliament and the State Legislatures. This grants the court a
powerful instrument of judicial review under the constitution.

Both the political theory and text of the Constitution has granted the judiciary the power of
judicial review of legislation. The Constitutional Provisions which guarantee judicial review of
legislation are Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitution legislation. Article 13
declares that any law which contravenes any of the provisions of the part of Fundamental Rights
shall be void. Articles 32 and 226 entrusts the roles of the protector and guarantor of
fundamental rights to the Supreme and High Courts. Article 251 and 254 state that, in case of
inconsistency between union and state laws, the state law shall be void. Article 246 (3) ensures
the state legislature’s exclusive powers on matters pertaining to the State List. Article 245 states
that the powers of both Parliament and State legislatures are subject to the provisions of the
constitution.

The legitimacy of any legislation can be challenged in the court of law on the grounds that the
legislature is not competent enough to pass a law on that particular subject matter; the law is
repugnant to the provisions of the constitutions; or the law infringes one of the fundamental
rights.

Articles 131-136 entrusts the court with the power to adjudicate disputes between individuals,
between individuals and the state, between the states and the union; but the court may be
required to interpret the provisions of the constitution and the interpretation given by the
Supreme Court becomes the law honoured by all courts of the land.

There is no express provision in our constitution empowering the courts to invalidate laws, but
the constitution has imposed definite limitations upon each of the organs, the transgression of
which would make the law void. The court is entrusted with the task of deciding whether any of
the constitutional limitations has been transgressed or not.

STRATEGY OF JUDICIAL REVIEW:

The strategy of judicial review can be divided broadly into public law review and private law
review. Under the Constitution, legislative and administrative actions can be reviewed by courts
under Ar¬ticles 32, 136, 226 and 227. Such review is called public law review. Article 32
guarantees the right to move the Supreme Court if any fundamental right can be reviewed under
this provision.

Writs:

Article 226 can be, and is more often, used for reviewing the action of administration. One can
say that there is an increase of litigation in this respect. The High Court can issue directions,
orders or writs in the nature of habeas corpus mandamus, prohibition, quo-warranto, and
certiorari for the enforcement of fundamental rights or for any other purpose.

HABEAS CORPUS is a write issued by the court to bring before the court a person from illegal
custody. The court will examine the legality of detention and release the person if detention is
found illegal.

Mandamus is issued to a public authority to do an act which under law, it is obliged to do or to

forbear from doing.

Prohibition is a write to prevent a court or tribune! from doing something in excess of its author-
ity. High Court has power to issue an order of prohibition to the executive authority prohibiting it
from acting without jurisdiction.

Certiorari is a write issued to a judicial or quasi-judicial authority to correct its order. This writ
is issued on specified grounds like violation of natural justice; excess, abuse or lack of
jurisdiction; fraud; and error of law apparent on the face of the record.
Quo-warranto is a writ issued to a person who authorisedly occupies a public office to step
down from that office. High courts and the Supreme Court have the power to issue not only these
writs but also appropriate directions and orders.

While giving parliament the power to alter the constitution, Articles 239 uses the word “amend”.
The lexical meaning of the word “amend” is to make minor improvements in a document
through addition or deletion. This clearly means that any amendment to the constitution has to be
within its basic framework, otherwise it will not be minor. Thus parliament can introduce minor
changes to the constitution; it cannot re-write or deface the constitution by changing its essential
character. It is ultimately for the courts to adjudicate whether any constitutional amendment
conforms to the fundamental character of the constitution, as this involves interpretation of the
constitution. If the courts determine that a constitutional amendment has the effect of defacing
the constitution, they can ask parliament to undo the amendment for being ultra vires to the
constitution.

LIMITS OF JUDICIAL REVIEW

It is true that the courts have wide powers of judicial review of Constitutional and statutory
provisions. These powers, however, must be exercised with great caution and self-control. The
courts should not step out of the limits of their legitimate powers of judicial review. The
parameters of judicial review of Constitutional provisions and statutory provisions are totally
different. In J.P.Bansal v State of Rajasthan11 the Supreme Court observed: “It is true that this
court in interpreting the Constitution enjoys a freedom which is not available in interpreting a
statute. It endangers continued public interest in the impartiality of the judiciary, which is
essential to the continuance of rule of law, if judges, under guise of interpretation, provide their
own preferred amendments to statutes which experience of their operation has shown to have had
consequences that members of the court before whom the matters come consider to be injurious
to public interest. Where the words are clear, there is no obscurity, there is no ambiguity and the
intention of the legislature is clearly conveyed, there is no scope for the court to innovate or to
take upon itself the task of amending or altering the statutory provisions. In that situation the

11
2003(3) SCALE 154
judge should not proclaim that they are playing the role of lawmaker merely for an exhibition of
judicial valour. They have to remember that there is a line, though thin, which separates
adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed
by an alert recognition of the necessity not to cross it and instinctive, as well as trained
reluctance to do so”.

If case the court forgets to appreciate this judicial wisdom, it would undermine the constitutional
mandate and will disturb the equilibrium between the three sovereign organs of the Constitution.
In State (Govt of NCT of Delhi) v Prem Raj12, the Supreme Court took a serious note of this
disturbing exercise when the High Court commuted the sentence by transgressing its limits. The
court observed:

“The power of commutation exclusively vests with the appropriate government. The appropriate
government means the Central government in cases where the sentence or order relates to a
matter to which the executive power of the Union extends, and the state government in other
cases. Thus, the order of the high Court is set aside”.

Similarly, in Syed T.A. Haqshbandi v State of J&K13, the Supreme Court observe: “Judicial
review is permissible only to the extent of finding whether the process in reaching the decision
has been observed correctly and not the decision itself, as such. Critical or independent analysis
or appraisal of the materials by the court exercising powers of judicial review unlike the case of
an appellate court would neither be permissible nor conducive to the interests of either the officer
concerned or the system and institutions. Grievances must be sufficiently substantiated to have
firm or concrete basis on properly established facts and further proved to be well justified in law,
for being countenanced by the court in exercise of its powers of judicial review. Unless the
exercise of power is shown to violate any other provision of the Constitution of India or any of
the statutory rules, the same cannot be challenged by making it a justiciable issue before the
court”.

The courts are further required not to interfere in policy matters and political questions unless it
is absolutely essential to do so. Even then also the courts can interfere on selective grounds only.

12
(2003) 7 SCC 121
13
(2003) 9 SCC 592
In P.U.C.L v U.O.I14, the Supreme Court observed: “This court cannot go into and examine the
need of Prevention of Terrorism Act. It is a matter of policy. Once legislation is passed, the
government has an obligation to exercise all available options to prevent terrorism within the
bounds of the Constitution. Moreover, mere possibility of abuse cannot be counted as a ground
for denying the vesting of powers or for declaring a statute unconstitutional”.

Similarly, in U.O.I. v International Trading Co15, the Supreme Court observed: “Article 14 of
the Constitution applies also to matters of government policy and if the policy or any action of
the government, even in contractual matters, fails to satisfy the test of reasonableness, it would
be unconstitutional. While the discretion to change the policy in exercise of the executive power,
when not trammeled by any statute or rule is wide enough, what is imperative and implicit in
terms of Article 14 is that a change in policy must be made fairly and should not give the
impression that it was so done arbitrarily or by any other ulterior criteria. The wide sweep of
Article 14 and the requirement of every state action qualifying for its validity on this touchstone,
irrespective of the field of activity of the state, is an accepted tenet. The basic requirement of
Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the
heartbeat of fair play. Every state action must be informed by reason and it follows that an act
uninformed by reason is per se arbitrary”.

Similarly, where a political question is involved, the courts normally should not interfere. It is
also equally settled law that the court should not shrink its duty from performing its functions
merely because it has political thicket16. Thus, merely because the question has a political
complexion by itself is no ground why the court should shrink from performing its duty under
the constitution if it raises an issue of constitutional determination. Every constitutional question
concerns the allocation and exercise of governmental power and no constitutional question can,
therefore, fail to be political. So large as a question arises whether an authority under the
Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by
the court. Indeed it would be its constitutional obligation to do so17.

14
2003 (10) SCALE 967
15
(2003) 5 SCC 437
16
P.U.C.L v U.O.I, AIR 2003 SC 2363
17
State of Rajasthan v U.O.I, (1973) 3 SCC 592
In B.R.Kapur v State of T.N18 the Supreme Court held that it is the duty of the court to interpret
the Constitution. It must perform the duty regardless of the fact that the answer to the question
would have a political effect.

CHANGING TRENDS IN JUDICIAL REVIEW:

Recently there is a rising trends in judicial activism in the land. The doors of the judiciary are
kept open for redressing the grievances of persons who cannot ordinarily have access to justice.
The strict observance of the traditional rule of locus standi will do injustice to certain persons
who do not have the money, knowledge and facilities of approaching court.

In such cases if a public spirited person comes forward on their behalf courts relax the rules an
adjudicate over the matter. Thus, in the matter of socially and economically backward groups or
persons who are not aware of their rights or not capable of pursuing their case in a court, the
complex and rigorous procedural formalities are not insisted upon. At this level there are cases
when press reports were taken as write petitions and reliefs granted. Letters addressed to the
courts were also ‘treated as petitions.

Judicial review is one of the important techniques by which the courts examine the actions of the
legislature, the executive and the other governmental agencies and decide whether or not these
actions are valid and within the limits set by the Constitution.

Therefore, with the power of judicial review the courts act as a custodian of the fundamental
rights. The Indian Judiciary, given the federal structure of the Constitution, also settles conflicts
of jurisdiction in legislation between the Centre and the States. With the growing functions of the
modern state judicial intervention in the process of making administrative decisions and
executive them has also increased.

CONCLUSION

18
(2001) 7 SCC 231
The above discussion unerringly points towards the permissibility and democratic nature of the
judicial review in India. The judicial review in India is absolutely essential and not undemocratic
because the judiciary while interpreting the constitution or other statutes is expressing the will of
the people of India as a whole who have reposed absolute faith and confidence in the Indian
judiciary. If the judiciary interprets the Constitution in its true spirit and the same goes against
the ideology and notions of the ruling political party, then we must not forget that the
Constitution of India reflects the will of the people of India at large as against the will of the
people who are represented for the time being by the ruling party. If we can appreciate this
reality, then all arguments against the democratic nature of the judicial review would vanish. The
judicial review would be undemocratic only if the judiciary ignores the concept of separation of
powers and indulges in “unnecessary and undeserving judicial activism”. The judiciary must not
forget its role of being an interpreter and should not undertake and venture into the task of
lawmaking, unless the situation demands so. The judiciary must also not ignore the self-imposed
restrictions, which have now acquired a status of “prudent judicial norm and behavior”. If the
Indian judiciary takes these two “precautions”, then it has the privilege of being the “most
democratic judicial institution of the world, representing the biggest democracy of the world”