DR.

RAM MANOHAR LOHIYANATIONAL

LAW UNIVERSITY

2017-18
“ADMINISTRATIVE LAW”

“Judicial Review in Indian Constitution or Judicial

Overreach”

Submitted to: Submitted by

Assistant Professor(Law) Ashish Amar Tiwari

Dr. R.K. Yadav. Semester- Vth

Dr. RMLNLU Enroll No. - 150101030

ACKNOWLEDGEMENT

After researching for about a fortnight, I was able to collect sufficient matter to make this

project of Administrative Law on Judicial Review in Indian Constitution or Judicial

Overreach . I am deeply indebted to Dr. R.K. Yadav for his guidance and support.

I would also like to acknowledge the invaluable support of my parents. The advice and

suggestions of all near and dear ones has helped in shaping new developments in this project.

I would also like to extend my deep gratitude to the staff of Dr MadhuLimaye Library for

helping me with my research and project drafting.

I sincerely thank all of you. I welcome any criticism and suggestions by the people who go
through it, for the improvement of my future projects.
 Introduction to Judicial review-‘an overview’

“No Democracy can flourish without an independent judicial system, a system free from fear
and favour. It enhances the prosperity and stability of social order”.1

Judicial review is the power given to the courts to determine the constitutionality of actions
taken by the different branches of the government such as legislature and executive. The
process of ascertaining the intention of the legislature and equating it with the constitutional
standards is the way by which courts exercise this power.

However, considering the various dimensions of Indian Constitution it is not possible to have
a hard and fast balance between all the organs of the government. We unlike other countries
follow a system wherein at certain junctures the powers of legislatures and executive overlap
with each other. Perhaps this is one of the prime reasons for the supremacy of power given to
courts to ascertain the legitimacy or validity of the actions and this power of judiciary
isdescribed as the safety valve of the constitution.2

The United States Supreme Court in case of Marbury v. Madison3 propounded the concept of
Judicial review, however the reasoning for the same can easily be a classic example of
judicial overreach. In India, the Judiciary acts as the silent protector of the constitutional
valuesand also asserts its positions as the watchdog of the constitution. Their main focus is to
protect the constitution from the harm that is being done by the other two organs of the
government.

Independence of Judiciary and power to judicially review the acts of Legislatures or

executive is considered to be the bedrock of rule of law. 4 As held in a catena of cases this
power is an indispensable feature of every constitution, which cannot be altered or abrogated
even by the exercise of new powers from parliament.5

1
Zia Mody, 10 Judgements That Changed India (Penguin books India 2013) p. 163.
2
DD Basu, Constitution of India, Vol-1, pg. no. 71
3
5 US (1 Cr.) 137, 2 L.Ed. 60 (1803)
4
Dr Justice A.S. Anand Justice N.D. Krishna Rao Memorial Lecture Protection of Human Rights — Judicial
Obligation or Judicial Activism, (1997) 7 SCC (Jour) 11;
5
New Trends of Judicial Control in Administrative Discretion, 11 J.I.L.I., 544, (1969), Jain S.N
 Judicial Review in Indian Constitution and its application

Judicial review is an extraordinary power given to the superior courts to judicially review any
decision and also for assessing the exercise of power of public authorities, whether they are
constitutional, quasi-judicial or governmental. Judicial Review of legislative acts indicates
review of legislative actions to check its constitutional validity or its correctness.

Supreme Court has pointed out that judicial review has expressly been provided in our
constitution under Article 13 of the Indian Constitution,6 according to which it is a duty to
determine the constitutionality of the legislation when that is challenged on the ground of
contravention of the fundamental rights.7Again, while all the Fundamental rights are
expressly made subject to regulation by the Legislature, those which are enumerated in Art.
19 are subject to judicial review as to their reasonableness much in the same way as in the
USA. 8Supreme Court has said that,-

“The determination by the legislature of what constitutes a reasonable restriction is

not final or conclusive, it is subject to the supervision of the court.”9

Moreover as quoted by LM Singhvi, the notes constitutional law jurist- “every State action
has to be tested on touchstone of rule of law and that exercise is performed when occasion
arises by the reason of a doubt raised in that behalf, by the courts.”10

Following are some of the features or key points of Judicial review-

1. Judicial review is the power given to the superior courts to determine the constitutionality
of actions taken by the different branches of the government such as legislature and
executive
2. Judicial Review can be of all the Central and State laws, the orders and ordinances of the
executives and constitutional amendments.
3. 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.

6
State of Madras v. Row, AIR 1952 SC 196 (199).
7
DD Basu, Constitution of India, Vol-1, pg. no. 72
8
ibid.
9
Chintamanarao v. State of MP, (1950) SCR 759 (765)
10
LM Singhvi&JagdishSwarup, Constitution of India,3 rd Edition,Volume-1,Thompson and Reuters,Pg.-271
4. Judicial Review is not automatic:The Supreme Court uses this power only when any law
or rule is specifically challenged before it.
5. Judicial Review of legislations:
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.

6. 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.

Extent of Judicial Review of Legislations in India

L.M Singhvi quotes that,

“Judicial review is a result of two of the most fundamental features of Indian

constitution. The first is the two-tier system of law with the constitution as the
Supreme law and other legislation being the ordinary law which is valid only in so far
 as is consistent with the constitution. The Second is the separation of the legislative,
the executive and the judicial powers of the state.”11

As far as ascertaining the validity of the statue is concerned, there is two-fold

process.12Firstly, the Legislatures must have the competence to enact them. Secondly, they
must not conflict with the constitution. They would be invalid to the extent of their
repugnancy with the constitution.13Thus, Judicial Review of legislative acts indicates review
of legislative actions to check its constitutional validity or its correctness.

Justice Bhagwati, in Sampath Kumar v. Union of India14 held that,

“Judicial Review is essential feature of the constitution and no law passed by

Parliament in exercise of its constituent power can abrogate it or take it away. If the
power of judicial review is abrogated or taken away the constitution will cease to be
what it is”.

In Maneka Gandhi v. Union of India15, it was held that,

“Judicial review acquired the same or even wider dimensions as in the United States.
Now ‘procedure established by law ‘in Article 21 does not mean any procedure lay
down by the legislature but it means a fair, just and reasonable procedure.”16

Supreme Court in its initial years was very cautious and limited in its approach regarding the
judicial review. In its initial year judiciary adopted a pro-legislature stance which is evident
from the ruling of AK Gopalanvs State of Madras17. However judiciary in later cases
pertaining to the cases of Right to property came up heavily on the legislatures and struck
down the legislations and Constitutional amendments,which in anyway curbed the
fundamental rights of an individual. This struggle continued further when SC was confronted
with the question regarding Parliaments power of amending the constitution.18Between 1950

11
LM Singhvi&JagdishSwarup, Constitution of India,3 rd Edition,Volume-1,Thompson and Reuters,Pg.-273
12
Ibid.
13
ibid.
14
AIR 1987 SC 386
15
AIR 1978 SC 597
16
Ibid.
17
1950 AIR 27, 1950 SCR 88
18
I.C. Golaknath v. State of Punjab, (1967) 2 SCR 762;
and 1975, the Indian Supreme Court had held a mere one hundred Union and State laws, in
whole or in part, to be unconstitutional.19

After the period of emergency, the judiciary was on the receiving end for having delivered a
series of judgments which were perceived by many as being violative of the basic human
rights of Indian citizens20and changed the way it looked at the constitution. The Supreme
Court said that any legislation is amenable to judicial review.21

The position as of now is such that judicial review extends to almost every governmental or
executive action - from high policy matters like the President's power to issue a proclamation
on failure of constitutional machinery, to the cases of pardon like in Kehar Singh case22.

Landmark Cases wherein Judiciary has exercised the power judicial

review

In case,ChampakamDorairajan v. State of Madras23, it was held that

“The Government of Madras reserved seats in state medical and engineering colleges
for different communities in certain proportions on the basis of religion, race and
caste. This was challenged asunconstitutional. The government defended its order on
the grounds ofArticle 46 of the Constitution, which permits the state to promote with
special care the educational and economic interests of the weaker sections of the
people and in particular scheduled castes and scheduled tribes to secure social
justice. But the Supreme Court struck down the order as it was violative of Right to
equality guaranteed under article 15(1) and observed that directive principles can't
override the guaranteed fundamental rights. As a result, the Parliament brought the
Constitution (First Amendment) Act, 1951 to Article 15 and inserted clause (4)”24.

19
http://www.mondaq.com/india/x/20649/Constitutional+Administrative+Law/Judicial+Review+in+India- last
accessed on 27th September, 2016
20
ADM Jabalpur v. ShivakantShukla, (1976) 2 SCC 521
21
KesavanandaBharati v. State of Kerala, (1973) 4 SCC 225; Minerva Mills Ltd. v. Union of India, (1980) 3
SCC 625;
22
1989 AIR 653, 1988 SCR Supl. (3)1102
23
AIR 1951 SC 226
24
Ibid
In the case of I. C. GolakNath v. State of Punjab25 the petitioner, landowners deprived of their
surplus landholdings under state land reform legislation challenged the validity of first,
fourth, and seventeenth amendments. The SC constituted an eleven judge bench to examine
that whether a constitutional amendment can be passed which abridges the fundamental
right? The court overruled the decision of ShankariPrasadv Union of India26 and said that
constitutional amendment comes under the definition of law under Art. 13(2) hence cannot
abridge the fundamental rights. The SC showed courage but it was of no use as legislature
passed the 24th Constitutional Amendment act which among the other things included clause
4 in Art 13 stating that this Article expressly exclude constitutional amendments.

In case of KeshavanandaBharti v State of Kerala27,Twenty-fourth, Twenty-fifth and Twenty-

ninth amendment to the constitution were challenged. The SC had to reconsider its decision
in Shankari Prasad, Sajjan Singh and GolakNath. With the thin majority of 7:6 Court ruled
that the Parliament has the power to amend any part of the constitution but it cannot destroy
the basic structure or framework of the constitution. By this case the SC broadened the scope
of judicial review by assuming the power to scrutinize all constitutional amendments.

After KesavanandaBharti case the SC became more powerful by having the power to
scrutinize the constitutional amendments but this power was not for long, its institutional
weakness was revealed in the case of A.D.M Jabalpur v. ShivakantShukla28also known as the
fundamental right case or habeas corpus case. In this case during the 1975 emergency, the
President issued an order under Article 359 of the Constitution suspending the right tomove
any court to enforce the fundamental rights guaranteed by Articles 14, 21 and 22 of the
Constitution.The majority held, 4:1, that no court could examine the actions of the executive.

In Maneka Gandhi v Union of India29 the constitutionality of section 10(3) (c) of the Passport
Act was in question. The court in the garb of giving the broader interpretation to the
fundamental right went into the realm of law making and made a judicial legislation by
ignoring its previous judgement and the decision of our constitution framers.

25
AIR 1967 SC 1643.
26
AIR 1951 SC 455
27
AIR 1973 SC 1461.
28
(1976) 2 SCC 521.
29
AIR 1978 SC 597.
 Judicial review or Judicial encroachment?

Austin gave a very narrow opinion about judicial functions. According to Austin law is the
command of the political sovereign with absolute sovereignty, which means only legislature
is allowed to make law. The functions of the courts were restricted to declaring the pre-
existing laws or interpreting the statutory law. A struggle over the custody of the constitution
began, between the judiciary led by Supreme Court and Parliament, just after the
inauguration of the Indian Constitution.

There have been many arguments that substantiate to the claims of judicial encroachment
upon the realm of the legislatures and executive. ArunJaitley, in his statements mentioned the
fact,“that judiciary being an unelected body is not accountable to the people through any
institutional mechanism. In most countries judges are appointed through methods involving
selection or nomination, in which ordinary citizens do not have a say. It is argued that
allowing the judiciary to rule on the validity of the enactments passed by a popularly elected
legislature amounts to a violation of the idea of ‘separation of powers.”30

Judiciary in its initial years worked in maintaining a balance among three branches of the
state. During the period of 1961-1970 the Court went for policy making on a grand scale due
to instability in political authority and unbridled exercise of the parliamentary power of
constitutional amendment. During the period of 1971-77, the government retaliated against
the Court’s activism by constitutional amendments, this is the point when the Court crossed
its line and went for making ‘Judicial legislation’. With the enactment of the emergency the
executive took the aggressive posture. SC abdicated its power of judicial review. The Court
was divided, and the judiciary was injured. Later Court again tried to expand its territory by
the introduction of PIL (Public Interest Litigation).

As far as my views are concerned, Courts must be energetic to protect the rights of
individuals, but they must also be cautious not to deny the majority’s legitimate right to
govern. This problem is compounded by the fact that the judges are appointed and not elected
and that they enjoy life tenure. In a nation that emphasizes the responsiveness of the
officeholders to the wishes of the people as expressed through the ballot box, by what

30
http://indianexpress.com/article/india/india-news-india/njac-sc-verdict-democracy-cannot-be-tyranny-of-the-
unelected-says-arun-jaitley/-last accessed on 27th September, 2016
authority, then do the appointed life-tenured judges sit in judgment on the validity of the
policies enacted by the democratically elected office holders?31

Conclusion and analysis of Judicial review

A mature democracy works on the principle of proper checks and balances between various
organs and machinery of the government. It is always required that there should be someone
to look after these bodies, so that none of them abrogate their power or do something which is
outside the permissible limit as provided by the constitution. The power of judicial review
puts a blanket ban on such powers and it prevents these organs of the government from
encroaching upon the domains other organ. And if there is any abrogation in the
aforementioned principle then, if challenged, then Judiciary has been provided with the
power to curtail such encroachment or restrict such power that leads to similar abrogation.
However it is expected that each organ work within their permissible limits and do
consciously realise and respect their own domain and also the domain of their counterpart.

However in recent times there has been various incidents wherein judiciary, themselves have
been alleged to transgress such limitation and do things that are completely outside their
permissible constitutional limits. This general perception is susceptible to two views, one
which says that the power of judiciary to determine the legitimacy or validity of a law is
restricted to certain extent and they can’t subsume the power of ultimate crusader. On the
other hand the other category of jurists agree that judiciary should remain within their limits
but however they also argue, that certain aberrations from the side of judiciary can be forgone
considering the facts of circumstances, and also if judiciary exercises this power by
remaining within the IS law then in such a case judiciary has the power to transgress their
power to certain permissible limits.

31
ibid.
 Bibliography
BOOKS REFERRED
 Constitutional Law of India by H.M. Servai.(4th edition,Universal Law Publication,
Delhi)
 LM Singhvi&JagdishSwarup, Constitution of India,3rd Edition,Volume-3,Thompson
and Reuters,
 DD Basu, Indian Constitutional Law, 4th Edition
JOURNALS/ARTICLES REFERRED
 Dr Justice A.S. Anand Justice N.D. Krishna Rao Memorial Lecture Protection of
Human Rights — Judicial Obligation or Judicial Activism, (1997) 7 SCC (Jour) 11;
 New Trends of Judicial Control in Administrative Discretion, 11 J.I.L.I., 544, (1969),
Jain S.
 Steven J. Cleveland, Judicial Discretion and Statutory Interpretation, 57 Okla. L.
Rev. 31, 40 (2004)
 Frank H. Easterbrook, Legal Interpretation and the Power of the Judiciary, 7 HARV.
J.L. & PUB. POL’Y 87, 88 (1984)
WEB RESOURCES REFERRED

 http://www.mondaq.com/india/x/20649/Constitutional+Administrative+Law/Judicial
+Review+in+India-last accessed on 27th September, 2016
 http://indianexpress.com/article/india/india-news-india/njac-sc-verdict-democracy-
cannot-be-tyranny-of-the-unelected-says-arun-jaitley/-last accessed on 27th
September, 2016