The Doctrine of Judicial Review in India

By Subhi Shukla

Introduction

In today’s culture, the law is significant. People made a deal with the government in which they agreed to give up their rights in exchange for safety from wrongdoing. This is referred to as Hobbes’ Social Contract Theory. In this stage of the rule of law, the law might be arbitrary and employed incorrectly if there is no justice. We have therefore further embraced Judicial Review in order to maintain a check and balance on the authority of each governmental organ. The procedure through which the court nullifies any law that violates the Constitution is known as judicial review. We have incorporated this provision from the US Constitution. However, it took several years to change this aspect of our constitution. The judiciary has been crucial in this regard. Judicial review may be conducted on legislative activities, constitutional amendments, and laws passed by the legislature. With reference to Indian case laws, this research paper will explore the development, history, characteristics, and different types of judicial review.

There are three branches of government in India: the legislative, executive, and judicial branches. The Judiciary keeps a check on both the organs mentioned above and ensures that the laws being made and implemented do not violate the Indian Constitution. The Legislature performs the function of making laws, the Executive executes/implements the laws, and the Judiciary keeps a check on both the organs mentioned above.

Judicial Review’s Past

In the Dr. Bonham Case, the term “judicial review” was mentioned in court proceedings quite early on. The Royal College of Physicians in this instance forbade Dr. Bohnam from practicing in London due to the fact that he lacked the necessary credentials. Due to the financial prejudice present in this case, the Natural Justice Principles have also been violated. The king and the college itself would split the fine levied against Dr. Bonham for his unlicensed practice.

After that, Marbury V. Madison, 1803 provided a concise definition of the term “judicial review.” In this instance, President Adam’s term as a member of the federalist party came to an end, and Jefferson, an opponent of federalism, took office. Adam appointed the federal party members as judges on his last day. However, Jefferson opposed this when he came to power. He consequently prevented Madison, the secretary of state, from notifying the judges of their appointment. One of the judges, Marbury, went to the Supreme Court and submitted a mandamus letter. The US Supreme Court created the notion of judicial review when it rejected the plea and first disagreed with the Congress-issued order.

The Importance of Judicial Review

Legal review is important for the reasons listed below:

• It prevents executive tyranny.
• It defends the citizens’ fundamental rights.
• It is essential for preserving the judiciary’s independence.
• It is absolutely necessary to uphold the Constitution’s supremacy.
• Additionally, it aids in catching the executive and legislative branches when they abuse their authority.
• It contributes to preserving the balance between the federal government’s center and the states.

Judicial Review’s Purposes

Judicial review performs two essential tasks, namely:

To protect the Constitution from any unwarranted government interference and to give legitimacy to the government’s acts.

Who may conduct a Judicial Review?

According to the doctrine of judicial review, the judiciary examines executive and legislative activities. Even though the executive, legislative, and judicial branches of the Indian government all have distinct authorities, the judiciary is given the right to evaluate the activities of the other two branches of government. In India, both the High Courts and the Supreme Court have the authority to conduct judicial reviews. According to Articles 226 and 227 of the Indian Constitution, the High Courts have the authority to conduct judicial reviews, while the Supreme Court has the authority under Articles 32 and 136.

Judicial Review Grounds

Constitutional modification

During this stage, all of the authority’s constitutional amendments are subject to judicial review. All amendments that violate fundamental rights are considered null and void and are deemed to be against the Constitution. History can be used to track all court scrutiny of constitutional amendments. The constitutional changes were contested, and those that violate the constitution were all ruled to be unconstitutional and void, as we have already seen in the aforementioned case statutes.

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, and I.R. Coelho v. State of Tamil Nadu, we can see the effects of judicial review of the constitutional change. This study has already covered all of these scenarios in great depth.

Lack of Authority

Any alleged exercise of a right by an administrative entity that does not have the legal jurisdiction to do so will, by definition, be illegal and void in the eyes of the law. As was determined in the case of R. v. Minister of Transportation, if a minister lacks the authority to cancel a licence, his order of revocation will be ultra vires and without authority (1934).

Additionally, it was determined that the Panchayat Raj Act, 1947 did not grant the Sub-Divisional Magistrate the jurisdiction to change the order of conviction and sentence granted by a Panchayat Adalat in the case of Rafiq Khan v. State of U.P. (1954). The Panchayat Adalat’s authority to make the decision could be removed or it could be completely overturned. The Magistrate only upheld the accused’s conviction for one of the offenses, tossing the conviction for the other offenses. In order to suppress the conviction for the other offenses, the Allahabad High Court issued a writ of certiorari.

On the grounds that the authorities exercised jurisdiction over matters over which they did not initially have authority, a court may examine an administrative action. The following reasons (among others) may be used to justify this review:

• that the laws that make up the administrative power and govern how it exercises its authority are unlawful in and of themselves
• that the authority was not lawfully created in compliance with the laws or norms.
• It is possible that the authority incorrectly asserted jurisdiction by basing a decision on a fact that did not belong to it.
• that several important preconditions that were prerequisites for the exercise of the jurisdiction were ignored.
• that the administration and/or authorities lacked the capacity to exercise jurisdiction over the parties, the territories, and the subject matter.

Insufficient Jurisdiction

Every administrative authority is required to execute its authority within the scope of the jurisdiction with which it has been invested, i.e., it must not go beyond those bounds and must only govern within the confines of the law. Any activity that would be considered ultra vires and so void if the power were to be exceeded. In one case, a local authority that had the jurisdiction to run tramways started running a bus service instead, operating outside of its authority and rendering the action null and illegal [County Council vs. Attorney General (1902) AC 165]. An injunction was requested and appropriately granted by the Court based on the case’s facts.

Judicial Review’s Jurisdiction

In order to challenge a law in the Supreme Court or the high courts, certain conditions must be followed. For example, a statute can only be challenged if:

The Constitution’s enshrined fundamental rights are violated by the law. The Constitution’s specified guarantees are violated by the statute. The authority or authority of the official or officials in charge who created the law is exceeded.

Several Judicial Reviews

Justice Syed Shah Mohamed Quadri famously distinguished three main areas for judicial review. These are what they are: investigations into legislative actions

The implication of this style of judicial review is that the legislation passed by the legislature are in line with the legal principles outlined in the Constitution. The following Supreme Court cases are the most notable examples of how this has been discussed

Case of Shankari Prasad

The First Amendment Act of 1951 was contested in Shankari Prasad v. Union of India (1951) on the grounds that the “Right to Property” was constrained. The Supreme Court rejected this argument and said that it could not be put into practice since Article 13’s fundamental rights cannot be restricted.

Case of Sajjan Singh

The existence of the Constitution under the 17th Amendment Act of 1964 was contested in Sajjan Singh v. State of Rajasthan (1965). The Court declared that the constitutional revisions adopted in accordance with Article 368 are not subject to judicial scrutiny by the courts, eradicating the position in the Shankar Prasad case (described above).

Case of Golakh Nath

In I. C. Golaknath & Ors v. State of Punjab & Anrs. (1967), three constitutional amendments—the first (1951), fourth (1955), and seventeenth (1967)—were contested (1964). According to the Honorable Supreme Court, Parliament lacks the power to amend the Constitution or limit or revoke basic rights under Article 368.

Case of Keshavananda Bharati

In Keshavananda Bharti v. the State of Kerala (1973), the 24th and 25th Constitutional Amendments were contested. A 13-judge panel was assembled to hear the matter, and based on a 7:6 ratio, the Court concluded that:

The President has the authority to amend the Constitution under Article 368 of the document. Ordinary legislation are not the same as constitutional amendments. The Parliament cannot change or overturn the Constitution’s fundamental principles.

Case of Indira Gandhi

In Indira Nehru Gandhi vs. Shri Raj Narain & Anr (1975), the Supreme Court found that the then-Indian Prime Minister had engaged in electoral fraud.

Case of Minerva Mills

The Apex Court invalidated the 42nd Amendment’s inserted Article 368 sections (4) and (5) in Minerva Mills Ltd. v. Union of India (1980) on the grounds that they undermined the Constitution’s fundamental principles.

The Examination of Administrative Acts

This is yet another method for enforcing constitutional discipline over the executive branches of government when they exercise their power. It is important to remember that the definition of state includes a judicial review of administrative decisions taken by the Union of India, state governments, and their personnel.

Review of Court Rulings

This kind of review is used to correct or modify changes made to earlier judgments or findings made by the judiciary. The following cases, among others, demonstrated the need for this kind of review:

Case of Bank Nationalization

The Supreme Court declared that the Constitution guarantees the right to compensation, i.e., to an identical amount of money for a property that was gained by force, in Rustom Cavasjee Cooper vs. Union of India (1970), often known as the Bank Nationalisation Case.

Allied Judicial Review Principles

Rule of Courtesy

According to the comity concept, all state authorities should assist each other with their crucial tasks so that they can carry out their responsibilities responsibly and in accordance with the Constitution’s principles.

Subsidiarity Principle

According to the subsidiarity principle, public duties and powers should only be exercised at the highest level at which they can be carried out effectively and responsibly. For instance, the political authorities can better identify political issues, the legislative branch can better develop policy issues, and the judiciary branch can more precisely govern judicial issues.

Guiding Contextuality Theory

According to the contextuality concept, the law must take into account the situation in which it will be used. Such action is taken to ensure that the law fulfills its responsibility as a countermeasure against social engineering in society.

The Proportionality Principle

Due to this principle, the courts use their judicial review authority to assess whether the restriction on the right and the legal goal being pursued are compatible. In accordance with this principle, the court will take the following three actions:

Considering the Methods

The courts examine the administrative authority’s methods. It checks whether the executive authorities’ methods are within their authority, the least burdensome, and reasonably connected to the goal.

Examining the Conclusion

After the aforementioned method, the court examines the goals, determining whether they are legitimate and within the realm of the officials.

Considering the ratio of means to ends

The courts also take into account whether the methods and the end are balanced.

Exceptions to the Judicial Review Exclusion

When exercising authority, the court will review the decision if it is: arbitrary, discriminatory, false, or where important information was withheld from the President or the Governor. In these situations, the action may be thrown out and directions may be given to make a fresh decision in accordance with the law.

Judges Exercising Restraint

What is Judicial Self-Control or Restraint?

A philosophy of judicial interpretation called judicial restraint, commonly referred to as judicial self-restraint, encourages judges to limit how much they wield the authority granted to them. Simply put, the courts must establish the law and refrain from interfering with the formulation of public policy. The judges should endeavor to decide matters in accordance with

• the main goal of the Constitution’s framers.
• the precedents, or the results of earlier trials.

Additionally, the policy-making process must be left to others and the court should not get involved. The courts “restrain” themselves from enacting new rules at their discretion in judicial restraint.

A Need for Judicial Restraint

There is a need for judicial restraint for the following reasons:

The equilibrium between the three branches of government—executive, judiciary, and legislature—is maintained in part through judicial restraint. The government upholds the laws passed by the legislature. It demonstrates sincere regard for keeping issues separate from the government and enables the legislative branch and the executive branch to fulfill their obligations and job responsibilities without interfering with their primary functions. Judicial restraint demonstrates respect for the democratic form of governance by letting policymakers make their own decisions.

Significant Rulings on Judicial Restraint

Union of India vs. State of Rajasthan (1977)

In this instance, the court denied a petition because it included a “political concern.” The Court would avoid getting involved since doing so would imply entering the political sphere.

S. R. Bommai v.  Union of India (1994)

 In this well-known case, the justices expressed their opinion that there is no chance for judicial review because of the predominance of political factors in these particular circumstances. There was no need for judicial involvement because, as stated in Article 356 of the Constitution, the exercise of authority was a political matter. The Court argued that it is difficult to devise standards that may be applied judicially to analyze political judgments and that if the courts got involved, they would be impugning political wisdom by entering the political sphere, which they must avoid at all costs.

Almitra H. Patel v. Union of India (2000)

On the question of whether the Municipal Corporation should be given instructions for maintaining Delhi tidy and clean in this case, the Court stated that it was not the Supreme Court’s place to tell them how to carry out their most fundamental tasks. As a result, the Court can only direct local authorities to carry out legal requirements.

India’s current Judicial Review Environment

The Central Vista project was not accepted by the Supreme Court of India recently because it was deemed an exceptional situation requiring “heightened” judicial assessment. The court ruled that as long as the constitutional requirements are followed, the government is free to create policies and make mistakes in them. Suo moto proceedings and Public Interest Litigations (PILs) have given the judiciary the authority to intervene in issues pertaining to the welfare of the general public even when the aggrieved party does not object due to the abolition of the locus standi concept.

The Next Step

Judges have strong judicial powers at their disposal, particularly in a nation like India. They have the ability to judicial review, which is crucial. For this reason, it is essential that the judiciary put an end to unfair practices and stop exploitation in addition to preventing abuse and misuse of power. In order to prevent the misuse of these tools for political purposes, there should also be a clear discussion of judicial activism and how PILs should be utilized. In situations where a constitutional remedy is sought, the judiciary must carefully consider the reasons why a certain writ or PIL was filed.

The Hon’ble Supreme Court rejected the CAA, or the repeal of Article 370 because it served a political goal. Because of this, when such instances come before the judiciary for review, they should be thoroughly examined to see whether there is a hidden agenda at play or if it goes against the interests of the general populace. Furthermore, NGOs frequently serve as puppets for political parties or groups backed by other nations or communities that have no good intentions for the sovereignty of the nation; as a result, it is imperative that the courts carefully consider the motivations of those who seek such remedies and look through the clear glass doors of the courts.

Another contentious constitutional interpretation issue arose when the President’s constitutional authority to name the Chief Justice of India (CJI) was taken away by the Hon’ble Supreme Court. Such actions require thorough judicial review.

Conclusion

We have embraced the idea of separation of powers here in India, thus we are unable to use full, expanded judicial review authority. If the courts assume full, arbitrary control over judicial review, it will result in subpar work from all branches of government. Therefore, each function must operate inside its designated sphere in order to maintain the proper operation of all the functions. In India, the fundamental design of the constitution includes the idea of judicial review. It aids the courts in maintaining a check and balances over the other two branches of government to prevent abuse of authority and ensure that they operate in accordance with the Constitution.

One of the most potent systems in the Indian Constitution is the judicial review function. This philosophy unquestionably stems from India and is expressly sanctioned by the Indian Constitution. Judicial review serves as a watchdog for the Constitution and protects the fundamental rights guaranteed by the Constitution. Additionally, it apportions authority between the union and the states and lays out in detail the duties of every organ that keeps the country running. In the case of Minerva Mills v. Union of India, we invented the idea of judicial review and it has since been incorporated into the fundamental framework. Finally, it is true to state that judicial review has developed to protect individual rights, put an end to the abuse of authority, and avoid injustice.