Judicial Review: Meaning and Definition

Judicial Review refers to the power of the judiciary to interpret the constitution and to declare
any such law or order of the legislature and executive void, if it finds them in conflict the
Constitution of India.
Judicial Review is the power of the Judiciary by which:
(i) The court reviews the laws and rules of the legislature and executive in cases that come
before them; in litigation cases.

(ii) The court determines the constitutional validity of the laws and rules of the government;
and

(iii) The court rejects that law or any of its part which is found to be unconstitutional or
against the Constitution.
(II) Features of Judicial Review in India:
1. Judicial Review Power is used by both the Supreme Court and High Courts:
Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final
power to determine the constitutional validity of any law is in the hands of the Supreme Court
of India.

Origin of Judicial Review

The doctrine of judicial review has acquired different nuances during the course of its
evolution in UK, USA, and India. Its origins can be traced to UK which has no written
Constitution. It has become firmly established in USA with a written Constitution
establishing a federal polity. However, the doctrine reached its culmination under the Indian
Constitution when the Supreme Court of India bestowed on judicial review the widest ambit
and amplitude in the casus célèbre Keshvanand Bharti v. State of Kerala . The very old case
on judicial review in England in case Dr. Bonham’s Chief Justice Coke stated that when an
Act of Parliament was against common right or reason, repugnant or impossible to perform,
the Common Law would control it and adjudge such Act to be void. In the Historic case
Marbury v. Madison the Supreme Court of America made it clears that Court had the power
of judicial review, Chief Justice George Marshall observed:

“Certainly all those who have framed the written Constitution contemplate them as forming
the fundamental and paramount law of the nations and theory of every such government must
be that the legislature, repugnant to the Constitution is void”.

Meaning of Judicial Review

‘Judicial review’ may be defined as a “Court’s power to review the actions of others branches
of government, especially the Court’s power to invalidate legislative and executive actions as
being unconstitutional”.
2. Judicial Review of both Central and State Laws:
Judicial Review can be conducted in respect of all Central and State laws, the orders and
ordinances of the executives and constitutional amendments.

3. A Limitations:
Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule
of the Constitution.

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4. It covers laws and not political issues:
Judicial Review applies only to the questions of law. It cannot be exercised in respect of
political issues.

5. Judicial Review is not automatic:

The Supreme Court does not use the power of judicial review of its own. It can use it only
when any law or rule is specifically challenged before it or when during the course of hearing
a case the validity of any law is challenged before it.

6. Decisions’ in Judicial Review Cases:

The Supreme Court can decide:

(i) The law is constitutionally valid. In this case the law continues to operate as before, or

(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from
the date of the judgment.

(iii) Only some parts or a part of the law is invalid.

In this case only invalid parts or part becomes non-operative and other parts continue to
remain in operation. However, if the invalidated parts/part is so vital to the law that other
parts cannot operate without it, then the whole of the law gets rejected.

7. Judicial Review Decision gets implemented from the date of Judgement:

When a law gets rejected as unconstitutional it ceases to operate from the date of the
judgment. All activities performed on the basis of the law before the date of the judgment
declaring it invalid, continue to remain valid.

8. Principle of Procedure established by Law:

Judicial Review in India is governed by the principle: ‘Procedure Established by Law’. Under
it the court conducts one test, i.e., whether the law has been made in accordance with the
powers granted by the Constitution to the law-making body and follows the prescribed
procedure or not. It gets rejected when it is held to be violative of procedure established by
law.

9. Clarification of Provisions which a rejected law violates:

While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the
constitution which it violates. The court has to clearly establish the invalidity of the
concerned law or any of its part.

(III) Critical Evaluation of Judicial Review:

Points of criticism:

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ADVERTISEMENTS:

1. Undemocratic:

The critics describe Judicial Review as an undemocratic system. It empowers the court to
decide the fate of the laws passed by the legislature, which represent the sovereign, will of the
people.

2. Lack of Clarity:

The Constitution of India does not clearly describe the system of Judicial Review. It rests
upon the basis of several articles of the Constitution.

ADVERTISEMENTS:

3. Source of from Administrative Problems:

When a law is struck down by the Supreme Court as unconstitutional, the decision becomes
effective from the date on which the judgement is delivered. Now a law can face Judicial
Review only when a question of its constitutionality arises in any case being heard by the
Supreme Court.

Such a case can come before the Supreme Court after 5 or 10 or more years after the
enforcement of that law. As such when the Court rejects it as unconstitutional, it creates
administrative problems. A Judicial Review decision can create more problems than it solves.

4. Reactionary:

Several critics regard the Judicial Review system as a reactionary system. They hold that
while determining the constitutional validity of a law, the Supreme Court often adopts a
legalistic and conservative approach. It can reject progressive laws enacted by the legislature.

5. Delaying System:

Judicial Review is a source of delay and inefficiency. The people in general and the law-
enforcing agencies in particular sometimes decide to go slow or keep their fingers crossed in
respect of the implementation of a law. They prefer to wait and let the Supreme Court first
decide its constitutional validity in a case that may come before it at any time.

6. Tends to make the Parliament less responsible:

The critics further argue that the Judicial Review can make the Parliament irresponsible as it
can decide to depend upon the Supreme Court for determining the constitutionality/
reasonableness of a law passed by it.

7. Fear of Judicial Tyranny:

A bench (3 or 5 or 9 judges) of the Supreme Court hears a judicial review case. It gives a
decision by a simple majority. Very often, the fate of a law is determined by the majority of a

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single judge. In this way a single judge’s reasoning can determine the fate of a law which had
been passed by a majority of the elected representatives of the sovereign people.

8. Reversal of its own decisions by the Supreme Court:

It is on record that on several occasions the Supreme Court reversed its earlier decisions. The
judgment in the Golaknath case reversed the earlier judgments and the judgment in the
Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment
was held valid, then invalid and then again valid. Such reversals reflect the element of
subjectivity in the judgments.

On all these grounds the critics strongly criticise the system of Judicial Review as it operates
in India.

(IV) Justification of Judicial Review:

A very large number of the supporters of Judicial Review do not accept the arguments of the
critics. They argue that Judicial Review is an essential and very useful system for Indian
liberal democratic and federal system. It has been playing an important and desired role in the
protection and development of the Constitution.

(1) Judicial Review is essential for maintaining the supremacy of the Constitution.

(2) It is essential for checking the possible misuse of power by the legislature and executive.

(3) Judicial Review is a device for protecting the rights of the people.

(4) No one can deny the importance of judiciary as an umpire, or as an arbiter between the
centre and states for maintaining the federal balance.

(5) The grant of Judicial Review power to the judiciary is also essential for strengthening the
position of judiciary. It is also essential for securing the independence of judiciary.

(6) The power of Judicial Review has helped the Supreme Court of India in exercising its
constitutional duties.

(7) The possibility of abuse of is power of by the Judiciary is very less because several
checks have been in existence:

(a) Lack of a clear statement of this power in any article of the Constitution.

(b) Judicial Review is not possible on some laws. The Parliament can place laws aimed at
securing socio-economic reforms in the 9th Schedule of the Constitution. This makes these
immune from Judicial Review.

(c) The scope of Judicial Review stand limited to only legal and constitutional cases.

(d) The Supreme Court is itself bound by the Constitution of India and the Parliament can
amend the Constitution.

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(e) The grant of specific fundamental rights to the also limits the scope of Judicial Review.

(f) The Parliament can pass laws and amendments for overriding the hurdles created by
Judicial Review.

What are Administrative Actions?

Administrative action is the residuary action which is neither legislative nor judicial. It is
concerned with the treatment of a particular situation and is devoid of generality. It has no
procedural obligations of collecting evidence and weighing argument. It is based on
subjective satisfaction where decision is based on policy and expediency. It does not decide a
right though it may affect a right. However, it does not mean that the principles of natural
justice can be ignored completely when the authority is exercising “administrative powers”.
Unless the statute provides otherwise, a minimum of the principles of natural justice must
always be observed depending on the fact situation of each case.

In case A.K. Kraipak v. Union of India , the Court was of the view that in order to
determine whether the action of the administrative authority is quasi-judicial or
administrative, one has to see the nature of power conferred, to whom power is given, the
framework within which power is conferred and the consequences.

Administrative action may be statutory, having the force of law, or non statutory, devoid of
such legal force. The bulk of the administrative action is statutory because a statute or the
Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing
directions to subordinates not having the force of law, but its violation may be visited with
disciplinary action. Though by and large administrative action is discretionary and is based
on subjective satisfaction, however, the administrative authority must act fairly, impartially
and reasonable.

Constitutional Remedies

1)HABEAS CORPUS-

Habeas Corpus is a latin phrase means 'have the body' or 'produce body' before the
court. This is a writ in the nature of an order calling upon the person who has detained
another to produce him before the court, in order to let the Court know what ground he has
been confined and to set him free before if there is no legal justification of imprisonment. In
other words , by this writ , the court directs the person or authority that has detained another
person to bring the body of prisoner before the court so that court may decide the validity,
jurisdiction or justification of such detention.

What is object of Writ ?

The writ of habeas corpus provides a prompt and effective remedy against illegal
detention , to release a person from illegal detention and not to punish the detaining authority.
The person illegally detained may make an application for the writ of habeas corpus. But if
the prisoner himself unable to make such application, any other person related to him having
interest in the prisoner but not a total stranger can make it. A Writ of habeas corpus may be
issued against any person or authority that has illegally detained or arrested the prisoners. The

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Court may award monetary compensation to the person who has been illegally arrested or
detained .

Rudal Shah v/s State of Bihar, 1983, Rs 35,000 by way of compensation was given
for fourteen years detention in jail after acquittal order.

A writ of habeas corpus issued by the supreme court and high court must be obeyed
by the person who it is issued otherwise it would amount to contempt of court. during
emergency writ of habeas corpus can not be issued . It was held in A.D.M.Jabalbur v.
Shivakant Shukla , 1976, Supreme court by majority held that during the emergency
fundamental rights are suspended and no person has locus standi to move any court for writ
of habeas corpus. A Writ of habeas corpus is available not only for release from detention by
the state but also release from private detention. General principles of Res Judicata apply
even to habeas corpus proceedings , but on fresh grounds a subsequent petitions for the same
relief is maintainable even after dismissal of earlier one.

MANDAMUS -

What is Mandamus ?

Mandamus means a command. It is an order issued by a court to a public authority

asking it to perform a public duty imposed upon it by the Constituon or by any other
law. Writ of mandamus is a Judicial remedy which is in the nature of in the nature of an
order from a superior Court i.e Supreme Court and a High court to any Government Court ,
Corporation or public authority to do or forbear from doing some specific act which that body
is obliged under law to under law to do or refrain from doing , as the case may be, and which
is in the nature of public duty and in certain cases of a statutory duty.

What are the conditions for the issue of writ of mandamus ?

1) Legal Right -

The Petitioner must have legal rights . In Umakant V/s State of Bihar , 1973,
Supreme court held that when the petitioner contended that the Government had promoted his
juniors and he had been left out , and it was found that the petitioner was not qualified for that
post, hence petition dismissed.

2) Legal duty-

A Legal duty must have been imposed on the authority and the performance of
the duty should be imperative. Such duty must be statutory either imposed by the
Constitution or by any other statute or or some rule of common law but should not be
contractual. If public authority invested with discretionary power abuses the power or
exceeds it, or act malafide or there is non-application of mind by it or irrelevant
considerations have been taken into account the writ of mandamus can be issued.

3) Good Faith -

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 An Application for mandamus must have been made in good faith and not for
any ulterior motive. It will not be issued if designed to harass the respondent or with a view
to cause personal grievances.

A person whose right has been infringed may apply for a writ of mandamus. The writ of
mandamus is available against against all those bodies falling within the definition of state
under Article .12 of the Constitution including Parliament and legislatures, Courts and
tribunals, The Government and its officers, local authorities like municipalities , panchayats ,
State-owner of state-controlled corporations, Universities and other other educational
institutions election authorities and other authorities.

Writ of mandamus in India will not lie against the President Or Governor of the state
for the exercise and performance of powers and duties of his office or for any act act done or
purporting to be done by him in the exercise and performance of powers and duties, of his
office or for any act done or purporting to be done by him in the exercise and performance of
those powers and duties . they are immune under Art.361 of the constitution.

Writ of mandamus in India is most popular writ, extensively and successfully used by
aggrieved persons.

3) PROHIBITION

What is prohibition ?

This writ can be issued against judicial or quasi-judicial authorities. When such
authority exceeds its jurisdiction or tries to exercise jurisdiction not vested in it. In East India
Commercial company v. Collector of customs, 1962, Supreme Court observed " A writ of
prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a
proceeding therein on the ground that the proceedings is without or in excess of jurisdiction
or contrary to the laws of the land , statury or otherwise."

The principle underlying the writ of prohibition is that 'prevention is better than cure'.

Grounds for issue of writ of prohibition -

1) Absence of jurisdiction -

In case of absence or total lack of jurisdiction, a Writ of prohibition

would be available against a judicial or quasi-judicial authority prohibiting it from exercising
jurisdiction not vested in it.

2) Violation of natural justice -

A writ of prohibition can also be issued when there is violation

of principles of natural justice. If there is bias or prejudice on the part of the judge or if no
notice was issued or hearing given to the person against whom the action is sought to be
taken. There is no jurisdiction vested in the court or tribunal to proceed with such matter.

3) Ultra vires or unconstitutional act -

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 A Writ of prohibition will also be issued where if a court or a
tribunal proceeds to act under a law which is ultra vires or unconstitutional. Thus, if The
proceedings are pending in a court or tribunal under a statute which itself ultra vires Aet .
14,25,26 of the Constitution or is beyond the competence of legislature, a writ of prohibition
can be issued against further proceedings.

4) Infringement of fundamental right -

A Writ of prohibition can be issued where the impugned action

infringes the fundamental rights of the petitioner.

Writ of habeas corpus is a judicial writ. It may be issued against courts, tribunals and
other quasi judicial authorities such as tax authorities , statutory authorities. Writ of
prohibition cannot be issued against administrative authorities from discharging
administrative , executive or ministerial functions and also against legislature restraining it
from enacting or enforcing a law. The object of the writ of prohibition is to prevent unlawful
assumption of jurisdiction. Therefore it can be issued only when it is proved that judicial or
quasi judicial authority has no jurisdiction or acts in excess of jurisdiction vested in it .

4) CERTIORARI

What is certiorari ? Meaning of Certiorari -

In short, Certiorariis constitutional remedy. Certirari means

to certify.
This writ is issued to an inferior Court or any other authority exercising judicial or quasi
judicial functions to investigate and decide the legality and validity of the orders passed by it.
It is required that the judges of the inferior court to certify the record of any matter in that
court and send it to the superior Court for examination.

What is the object Of Certiorari ?

The object of writ of certiorari is to keep inferior Courts and

quasi-judicial authorities within the limits of their jurisdiction , and if they act in excess of
their jurisdiction their decision can be quashed by superior courts by issuing this writ.

What are conditions for the writ of Certiorari ?

The writ of certiorary can be issued if the following conditions are fulfilled -

1) The judicial or quasi-judicial body must have legal authority.

2) Such authority must be an authority to determine questions affecting rights of subjects.

3) It must have duty to act judicially , and

4) It must have acted in excess of its authority.

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Grounds -

A) Error of Jurisdiction -
When an inferior Court or tribunal acts without jurisdiction or in excess of
its jurisdiction or fails to exercise jurisdiction vested in it by law, a writ of certiorari may be
issued against it .

In R V. Minister of transport,1934, king bench quashed the order on the

ground that it was without jurisdiction and therefore ultra vires. In this case a minister who
was not empowered to revoke a licence, but he revoked licence by passing an order.

In Ebrahim Aboobaker v Tek chand ,1953, Supreme court held that in

absence of any provision in the relevant statute, after a death of a man, his property can not
be declared evacuee property and the decision of the authority was quashed on the ground of
lack of jurisdiction.

B) Judicial Fact -

The fact or facts upon which an administrative agency's power to act

depends can be called as a jurisdictional facts. If the jurisdictional facts does not exist, the
court or tribunal cannot act.

C) Error Apparent on face of record -

A decision of inferior Court or tribunal may be quashed by a writ of

certirari, if there is an error of law apparent on the face of record.

D) Violation of Natural justice

A writ of certiorari can be issued when there is violation of principle of

natural justice.

A writ of certiorari lies against subordinate courts, Inferior tribunals, quasi judicial bodies
and adjudicating authorities. Supreme court in Prabod Verma V. State of U.P., 1984, Held
that "a writ of certiorari can never be issued to call for the record of papers and proceedings
of an Act or Ordinance and for quashing such Act or Ordinance."

5) Quo warranto

It is a Latin term means 'what is your authority or show your authority' by

issuing this writ the person concerned is called upon to show the court by what authority he
holds the office or liberty .If the holder has no authority to hold the office he can be ousted
from its enjoyment.
Object

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 The object of the Quo-warranto is to control executive action in the matter of making
appointment of public offices against the relevance statutory provision.

Conditions
1) Nature of the office must be public
The means an office in which Public has interest. Before the writ can be
issued by the court the court must be satisfied that the office in question is a public office and
the older thereof has no legal authority to hold the said office.

2) The office Must be of substantive characters

It means the office in question must be an independent office and the holder
of such office must be an independent official.

3) The office must be statutory or constitutional

A writ of quo warranto may be issued in respect of offices of prime minister
advocate general, judge of high court, Public Prosecutor, Speaker of House of the state
legislature, member of municipal body, University officials etc .

4) The holder must have asserted his claim to the office

A mere making a claim to the office is not enough .

Quo-Warranto is a discretionary remedy and the petitioner cannot Claim this writ
as of right. Supreme Court in Rameshwar vs State 1961, held that Court may refuse or grant
this writ taking into account the fact and circumstances of the case .This writ may also be
refused on ground that suitable alternative remedy is available to the petitioner. Moreover a
writ of quo warranto cannot be refused only on the ground of delay because the appointment
of the officer will be illegal hence every act of everyday give a fresh cause of action and
hence petition cannot be dismissed on the ground of delay.

Conclusion
One of the important and fundamental concept in English as well as in Indian legal
system is Ubi Jus ibi remedium , for example wherever there is a right there is a remedy .
The right and remedy are two sides of same coin and they cannot be separated from each
other. One of such remedies available to an individual aggrieved by any action of
Administrative authority is judicial review by way of prerogative remedies. There Prerogative
remedies are provided with writs. The constitution of India under article 32 and 226 gives
power to the supreme court and the high court to issue prerogative writs in the nature of
habeas Corpus ,mandamus ,prohibition, certiorari, Quo waerranto. The framer of the Indian
Constitution made specific provisions in the constitution itself empowering the supreme court
and high courts to issue above writs. Therefore these remedies are also known as
constitutional remedies.

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