Judicial Review in Indian Context: A Critical Analysis

This article was written by Saloni Sharma, a student of ICFAI Law School, Hyderabad.

  Introduction

Should Judges have the right to strike down any legislative action (be it constitutional amendment or legislation) when they are convinced that it contravene the ambiguous basic structure of the Constitution?  In India they do. In October 2015, the Supreme Court of India struck down the Constitution (Ninety-ninth Amendment) Act, 2014 along with the legislation passed in pursuance thereof namely National Judicial Appointment Commission Act, 2014. The case is popularly known as NJAC’s case. The decision not only violated the doctrine of checks and balances, but also the Constitution. The old collegiums system is to be operative again. Should such right to encroachment of power in legislative functions be vested with Judiciary under the head of Judicial Review?  These questions suggest that there is a dire need to recheck the principles and reconsider the idea of Judicial Review. The need is continuously being felt since Shankari Prasad vs. Union of India (1951) and which thereafter escalated during Keshvanandan Bharti vs. State of Kerala (1973). The striking down Section 66A of IT Act (2000) in Shreya Singhal vs. Union of India (2012)can be said to be a proper use of Judicial Review but on the contrary its new version viz. ‘Judicial Activism’ has not only overreached the functions of Judiciary but also encroached  the powers of legislature. Judicial review is defined as “the subjection of legislation to the rule of law”[1]. This power is not are given make Judiciary superior over other organs but to ensure a system of checks and balances between Judiciary-Legislature and Judiciary-Executive.  It is not the purpose of judicial review to criticize legislative or executive actions, as the opposition is expected to fulfill this function in a democratic polity. This Paper will argue that judicial review of legislation is inappropriate as a mode of final decision making in a free and democratic society and that judicial review should be used in a confined and defined scope. The Paper also discusses the related provisions in the Constitution and analysis thereof. Chapter 1 will present a Research Question that shall be tentatively answered in Research Hypothesis. Research Hypothesis shall be based on six grounds which shall be critically analyzed in Chapter 4. Judicial Review in India was development of various precedents. An insight to Historical Evolution of judicial review is made to understand the societal circumstances and the renaissance in which Judicial Review developed to the present form in Chapter 2, whereas Chapter 3 deals with various aspects of Judicial Review.

Chapter I: Research Question and Hypothesis.

• Research Questions

In the Constitution of India, adopted in 1950, there is no express provision declaring that the Constitution to be the supreme law of the land. Article 13 of Indian Constitution expressly provides for the judicial review to protect the fundamental rights. Wherein Articles 32 and 226 are procedural in nature and provides for the enforcement of these rights. The only organ of state that is vested with protection and maintenance the Constitution and Fundamental Rights is Judiciary.  Supreme Court is also called ‘Guardian of Constitution’. There arises certain Questions with respect to Judicial Review which are discussed as follows:

• What is Judicial Review and how does it evolved? Before considering the idea we should understand the idea first. ‘Judicial Review’, is a term which has attracted many debates and has been subjected to many controversies. Its involvement with constitutional dynamics makes it vital to know its meaning both as citizen and student. Its distinct nature and the circumstances in which it evolved also needs to be understood.
• What is the legitimacy and limitations of Judicial Review? Judicial Review is a tool to protect the constitutionally guaranteed rights from contravening legislations. However, it is pertinent question here to discuss the legitimacy of Judicial Review itself. There is a need to discuss the provisions and precedents to confirm its legality. In addition, the Limitations to it are also considerable.

• Is Judicial Review Undemocratic? This question always echoes in the arguments of scholars who are anti-Judicial Review. Professor Jeremy Waldron has called it undemocratic and criticized it. Other scholars have also presented their deviating opinions. These claims need to be understood analytically.

• Judicial Activism or Judicial Restraint? A question which is answered several times but the seeker always remained in doubt. Two different stance of Supreme Court allowing two opposite things to operate simultaneously has left many debates endless

Research Hypothesis.

The questions raised in previous section are answered tentatively here are thereafter briefly discussed and critically analyzed in following Chapters.

• As observed by Patanjali Sastri, J., in State of Madras v. V.G. Rao[2], Justice Khanna, former judges of the Supreme Court of India has in his book “Judicial Review or confrontation” made the following remarks in this connection “Judicial Review has constitutional system and a power has been vested in the High Court and the Supreme Court to decide about the constitutional validity of the provision of the statutes”. 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 [3] The concept evolved in pre-constitutional period and developed to its modern form by various judicial precedents. However, In Keshvanandan Bharti vs. State of Kerala (1973) the idea was also began to use in Constitutional Amendments
• Judicial Review is an interpretation to article 13(2) of Indian Constitution supported by article 32 and 226 which are procedural in nature. There are however certain limitations of Judicial Review such as Judicial Restraint, ‘Procedure established by law’ and Emergency provisions. In a PIL challenging the recent Civil Nuclear Deal between India and USA the Supreme Court called it Political Question which suggests uncertainty in Judicial Review’s application in International Treaties.
• Judicial Review is undemocratic in nature it vests a non elected judge with power to invalidate actions of an elected representative. It is argued by legislators and professors that it lacks the accountability on Judges’ part which the legislator entertains. Jeremy Waldron criticized it on two fronts firstly that it is politically illegitimate and secondly it distracts citizens’ focus from current societal needs.
• Judicial Activism and Restrained are adopted by India Judiciary. However their contradictory nature leaves dubious situations. There are instances where Judiciary has restrained itself from encroaching the power of other organs but on the contrary other instances suggest that it knows no limit of intervention.

Chapter II : Historical Evolution.

• Tracing Origin in World

The development of any law is an outcome of deep study and thinking, and any law cannot be said to have originated at any specific point of time. It may have been implemented for the first time but it is always backed by the consistent efforts of the scholars over a period of time.  Judicial Review is claimed to have recognized for the first time, in its modern sense, in USA in Marbury vs. Madison[4] but historically seeking, its origin can be traced back to 4^th century. In around 415 B.C The Athenian Legal system had mechanism called ‘Graphe Paranomon’. ‘Graphe Paranomon was a legal procedure to challenge the legislations proposed by the Athenian Assembly which were contrary to the existing (contemporary) Codes. Any male member could challenge the validity of the legislation proposed (It was immaterial whether the legislation has actually been passed or not) and, if such legislation is nullified by the jury then the Proposer thereof was punishable, typically with a fine’. [5]

Judicial Review can also be found English Legal system. It was in 1610, when his Excellency Lord Edward Coke, who was an English Judge, in the famous Bonham’s case[6] observed: “it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.”

The basic idea of American Judicial Review is stemmed from this precedence of English Legal System. However, the principles of Parliamentary Supremacy prevailed and ultimately set the pattern of English Constitutional law. Henceforth, English judges were to be guided by the Blackstonian principle ‘that the power of parliament is absolute and without control’.

Bonham’s case, for the first time, was significantly elaborated in the arguments of profound constitutional lawyer James Otis in Paton’s case[7] also known as Writs of Assistance Case in 1767. In Boston, Otis argued that ‘British officers had no power under the law to use search warrants that did not stimulate the object of the search’. Otis based his challenge to the underlying act of Parliament on Bonham’s Case, the English Constitution, and the principle of “natural equity.” Otis argued: “that the Parliament was not the final arbiter of its own Acts and contended that the validity of statutes must be judged by the courts of justice.  This argument of Otis fore-shadowed the principle of American constitutional law that it is the duty of the judiciary to declare unconstitutional statutes void’.[8]

 

The voyage of evolution of what we understand today as Judicial Review has, then, been through the thoughts of Alexander Hamilton, who endorsed this proposition into the Ideological foundation thereof. Marshall’s Marbury vs. Madison was inspired by Hamilton’s essay in the federal papers No. 78 in ‘the Federalist’ (1788).  He wrote: “whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. The judiciary has no influence over either the sword or purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment”.

The 5th and 14th Amendments in the Constitution adopted the ‘Due Process Clause’ which provided the scope to exercise the power of Judicial Review by the Supreme Court, however this intuition had been maintained as integral and vital part of the American system of government only after Chief Justice Marshall decided Marbury v. Madison in 1803.

• Marbury vs. Madison

Before the inauguration of President Jefferson, outgoing President Adams attempted to secure Federalist control of the judiciary by creating new judgeships and filling them with Federalist appointees. Included in these efforts was the nomination by President Adams, under the Organic Act of the District of Columbia (the District), of 42 new justices of the peace for the District, which were confirmed by the Senate the day before President Jefferson’s inauguration. A few of the commissions, including Marbury’s, were undelivered when President Jefferson took office. The new president instructed Secretary of State James Madison to withhold delivery of the commissions. Marbury sought mandamus in the Supreme Court, requiring James Madison to deliver his commission.

In the case of Marburry vs. Madison it was held : “….that the people have an original right to establish, for their future government, such principles, as in their opinion shall most conduce to their happiness is the basis on which the whole American fabric has been created… the principles, therefore so established, are deemed to be fundamental… This original and supreme will organize the government, and assigns to different department their respective powers… the powers of the legislature are denied and limited and that those limits may not be mistaken or forgotten, the Constitution is written… certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the national and, consequently… An act of the legislature, repugnant to the Constitution is void, so if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case. The court must determine which of these rules govern the case… If, then the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution and not such ordinary act, must govern the case to which they both apply”. The court continued that “the interpretation of the laws is the proper and peculiar province of the courts. A Constitution is in fact and must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body”[9]

The powers of the legislature are defined and limited and that those limits may not be mistaken or forgotten, the written Constitution constitute ‘the fundamental and paramount law of the nation’ and, consequently an act of the legislature, repugnant to the Constitution is void so if a law be in opposition to the Constitution, if both the law and the Constitution apply to particular case.

This case gave new gleam to Judicial Review. It was not only adopted in America but also in other Countries. However it was also criticized by authors like Jeremy Waldron who called it incompatible with Democracy.

Bernard appreciated the idea of Judicial review and  remarked: “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 constitutionality”.[10]

• Emergence in India

Judicial Review in India for the first time was mentioned in Emperor v. Burah.[11] The Calcutta High Court as well as Privy Council adopted the view that the Indian courts had power of Judicial Review under certain limitations. This view was further reaffirmed in certain other case before the Government of India Act of 1935 came into operation.

The Government of India Act of 1935 (herein this paragraph referred to as Constitution) introduced Federal Courts to function as an arbiter in the Central and State relationship and to scrutinize the violation of the constitutional directions regarding the distribution of the powers. Even the Constitution didn’t specifically have any provision in this regard, the Federal court was impliedly entrusted with the function of interpreting the Constitution and to determine the constitutionality of legislative Act. A large number of cases cropped up involving the question of the validity of the legislative Acts, were one of the main topics of decision before the Federal Court and the Privy Council. Maurice Gwyer C.J. of the Federal Court of India observed “we must again refer to the fundamental proposition enunciated in (1878) 3 AC 889 (Reg V. Burah) that India legislatures within their own sphere have plenary powers of legislation as large and of the same nature as those of parliament itself. It was true in 1878, it can’t be less true in 1942”.98

The development of Judicial Review continued and it was followed by many precedents. The framers of our Constitution also appreciated the same. The framers of the constitution were aware of the inherent weaknesses of Judicial Review, therefore they tried to define its scope and adopted several devices to prevent courts from abusing their powers and acting as “super legislature” or permanent “third chambers”[12]. The Constitution of India, 1950 specifically provided for Judicial Review in Article 13, 32 and 226.

Just after the passing of Constitution of 1950 the entire Bengal Criminal Amendment Act of 1930 was declared void by the Calcutta High Court in a special Bench case. The Court held – “The legislatures in this country have only those powers of legislation which are bestowed upon them by the Constitution Act. If they pass an Act in excess of these powers, the Act becomes void to that extent. Under our Constitution, the Court i.e. the judiciary is to decide this and nobody else. We recognize that great powers necessarily involve grave responsibilities, but we are not dismayed. Amidst the strident clamour of political strife and the tumult 106 of the clash of conflicting classes we must remain impartial. This court is no respector of persons and its endeavour must be to ensure that above this clamour and tumult, the strong calm voices of justices shall always be head”.[13]

The legislative actions can be declared unconstitutional but the pertinent question here is whether Constitutional Amendments can be declared as unconstitutional. It sounds like paradox to render a Constitutional Amendment as unconstitutional and hence it attracted a sensible debate among the scholars. This question was raised in Shankari Prasad v. Union of India[14]  where in the very first Amendment to the Constitution, which curtailed the ‘Right to Property’ guaranteed under article 31, was challenged. The petitioner argued that the word Amendment qualifies to be a law according to article 13(2) and hence the Amendment can be struck down. Rejecting this argument the Supreme Court held that the power to amend the Constitution under article 368 is a constituent power which is distinct from legislative power under article 245. Therefore, a constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.

In 1964, again the question was raised before the Supreme court in Sajjan Singh v. State of Rajasthan[15], wherein the Seventeenth Amendment to the Constitution was challenged. Honorable Supreme Court again upheld the Seventeenth Amendment and said that the power of Judicial Review is outside the purview of article 368.

However the same Amendment was again challenged in Golakh Nath v. State of Punjab[16] wherein the Apex Court reconsidered its previous two decisions. The majority held that the Amendment was void in as much as it took away or abridge the fundamental rights under article 13(2) of the Constitution. The Doctrine of Prospective overruling was applied for the first time and it was held that that this decision will have only prospective operation and therefore, the seventeenth Amendment will continue to be valid.

The Parliament, however, then passed Twenty-fourth Amendment to the Constitution amending article 368 and 13 to regain the absolute power to amend the constitution. This was challenged in Keshvanandan Bharti v. State of Kerela[17] along with Twenty-fifth and Twenty-ninth Amendments. This matter was adjudicated upon by the bench of 13 Judges wherein 11 delivered separate judgments. It was held that even a fundamental right can be amended or altered provided that they are in consonance with the basic structure of the Constitution. It is at the discretion of the court to determine which fundamental right is ‘basic’ feature. The right to property has not been treated as such and so the fundamental right to property has been abrogated. A part of article 31-C (included by twenty-fifth amendment) which took the power of

Judicial Review from the court was also struck down. The honorable Supreme Court came up with the ‘Doctrine of Basic Structure’ which means any part or provision of the Constitution can be altered, added, or repealed by way of amendment to the extent it don’t affect the basic structure of the Constitution.

This followed several instances wherein Judicial Review was echoed. Judicial Review was not only adopted but also declared as basic feature. In  L. Chandra Kumar v. Union of India[18]  a larger Bench of seven Judges declared: “that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.

A weapon can be used for either protection or attack and it solely depends on the person holding it. There are criticisms to this idea and many scholars have posed a question as to its proper use. Judiciary, on the other hand has, however, made attempts to answer such criticism. In one of the instance of All Saints High School v. Andhra Pradesh[19]  Chief Justice Chandrachud said: “..All this depends on the outlook and values of the judge.”

Chief justice Patanjali Shastri of the Supreme Court of India also remarked “while the court naturally attaches a great weight to the legislative judgment it cannot desert its own duty to determine finally constitutionality of an impugned statute”.[20]89

Thus Judicial Review emerged as both a power and a function of the Judiciary. Its development was facilitated more with its criticism. It was adopted to ‘guard Constitution’ against the personal ideology of any Political Party who for the time being forms the majority. The voyage didn’t pause here it continued and transformed it into ‘Judicial Activism’ or ‘Judicial Adventurism’.

Chapter III : Judicial Review and Indian Constitution

Article 13 of the Constitution declares that any law that encroaches on any of the fundamental rights shall be void, although it does not declare who has the authority to make such a determination. Additionally, the earliest proposals on fundamental rights emphasized that they must be justiciable and the resulting Constitution included among the fundamental rights the right to petition the Supreme Court directly in matters relating to the fundamental rights. Speaking of this right to petition the Supreme Court directly on fundamental rights, Dr. B.R. Ambedkar declared, If I was asked to name any particular Article of the Constitution as the most important –an Article without which this Constitution would be a nullity– I could not refer to any other Article except this one … It is the very soul of the Constitution and the very heart of it[21].

The power of judicial review was firstly exercised by Supreme Court  in A.K. Gopalan v. State of Madras,518 the first case in which the power of judicial review was used by the Supreme Court, Chief Justice Kania pointed out that it was only by way of abundant caution that the farmers of the Indian Constitution inserted the specific provisions in Article 13. He observed, “In India it is the Constitution that is supreme and that a statute law to be valid must be in all conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not.”

Article 13 of Constitution is read as:

“ Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality”

The power of judicial review is derived from this article. Earlier the power of judicial review was to exercised to overturn the legislations only but significantly after  Kesavananda Bharati v. State of Kerala[22], it can also be exercised to invalidate constitutional amendments. In the present case which is also  582 known as the Fundamental Rights Case. In this landmark case, 10 out of 13 judges of the Supreme Court declared that the ‘law’ in Article 13(2) refers to the exercise of an ordinary legislative power and does not include a Constitutional Amendment under Article 368. In other words, a Constitutional Amendment is not a ‘law’ for the purpose of fundamental rights. Therefore, the Supreme Court overruled the earlier decision of the Supreme Court in Golak Nath and upheld the validity of the 24th Constitutional Amendment, 1971 to the extent that it affected Articles 13 and 368. However, the Court held that the Parliament has the power under Article 368 to amend all the provisions of the Constitution including the Part III containing the fundamental rights but without affecting or taking away the ‘Basic Structure’ or ‘Basic Features’ of the Constitution.

Article 32 and 226 also provide procedure to get the remedy against violation  of fundamental rights . While article 32 is the original jurisdiction of Supreme Court, a petition can be preferred to High Courts under article 226.

There are two main differences between writ jurisdiction under Articles 32 and 226. Firstly, the right to move the Supreme Court under Article 32 is itself a fundamental right and thus, in such condition ordinarily the Supreme Court cannot refuse to grant this remedy.[23] However, the right to move the High Court under Article 226 is not itself a fundamental right. The remedy provided in Article 226 is a discretionary remedy and cannot be claimed as a matter of right. Secondly, the remedy provided under Article 32 is available only for the enforcement of the fundamental right guaranteed by part III of the Constitution while the remedy provided under Article 226 is available for the enforcement of the fundamental rights and also for the enforcement of any other purpose. Thus, the writ jurisdiction of the High Court is wider than of the Supreme Court.[24]

Other Articles like 132 , 133 and 134 also notably contributed to the power the Supreme Court has appellate jurisdiction under Articles 132 (1), 133 (1), and 134 (1) of the Indian Constitution to deal with the question of the constitutionality of a law made by the Legislatures. Under Article 132 of the Constitution, an appeal lies to the Supreme Court from any judgment, decree, or final order[25] of any High Court, in the territory of India in any civil, criminal or other proceedings,[26] provided that it involves a substantial question of law as to the interpretation of the Constitution, and the High Court certifies that effect.

Where article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to the State list, article 245 states  the powers of both Parliament and State legislatures are subject to the provisions of the constitution.

chapter IV: Critical Analysis

• Judicial Activism and Judicial Restraint.

Judiciary in India has adopted doctrine of judicial restraint in order to limit the use of Judicial Review to restrain itself from striking down legislation unless they are obviously unconstitutional. It is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. As pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette[27], “since this great power can prevent the full play of the democratic process, it is vital that it should be exercised with rigorous self-restraint.”

 The basic idea behind the adoption of such mechanism is to determine the questions which are completely political in nature and should not be interfered with by judiciary. However, this concept is latent in Indian Judicial System. It is disappearing as, on the contrary, judicial activism has acquired the scope.  It is ‘judicial restraint’ which should be read and understood with the concept of judicial review in order to limit it. On the contrary, however, India has developed a completely new and opposite mechanism called Judicial Activism.  A role of judge is only to say authoritatively ‘what law is’ but the Judiciary in India is keep confusing it Judicial Review. There lies a paradox and ambiguous state of powers with Judiciary in this country where both Judicial Restraint and Activism are in operation simultaneously.

A former Solicitor General of India, Mr Dipankar P Gupta, also wrote “There is a real danger that the activism of the courts may aggravate the activism of the authorities. Today, inconvenient decisions are left by the executive for the courts to take”.[28]

Judicial Activism can be criticized on various aspects. Firstly,  judge who in the light to judicial activism  pronouncing any law may lack the expertise to make it. A judge who is issuing guidelines for Foreign Exchange may not lay proper ones if he don’t have economical knowledge. Secondly, it violated the Doctrine of Separation of Power. In a country like India where well written and defined Constitution, which clearly distribute and direct the power and its use, concepts like judicial activism are mere hardship to the proper and regular functioning of the State. There are number of grounds to call Judicial Activism itself as unconstitutional.

The concern is not only with a particular section of society but it is also expressed deeply by judges at different occasions. One such occasion arouse in State of Kerala v A Lakshmi Kutty[29] wherein it was observed that: “Special responsibility devolves upon the judges to avoid an over activist approach and to ensure that they do not trespass within the spheres earmarked for the other two branches of the State”.

On one hand where in Indian Drugs & Pharmaceuticals Ltd v Workmen the supreme court stated that: “the Supreme Court cannot arrogate to itself the powers of the executive or legislature… There is a broad separation of powers under the Constitution of India, and the judiciary, too, must know its limits”.[30] It went against itself which adjudicating in Noida land acquisition case the Supreme Court cancelled the acquisition of land by U.P government as it was acquired for industrial purpose but it was given to builders for making apartments. The court ordered that land should be revert back to farmers from whom land was acquired. Often Supreme Court and different high courts pass order for CBI investigation in several cases. Under the law these power lies with the governments.

Judicial Review in form of Activism has surpassed the constitutionality and legitimacy. This approached has not only confused the original powers vested with different organs of the state but also lead India towards Judicial Supremacy much away from its aspirations of Constitutional Supermacy.

• A Threat to Democracy.

Undemocratic Judicial Review is basic structure of Democratic Constitution. Democracy is defined as a government of the people, by the people, and for the people. It involves election of representatives by the people in whom they vest their collective voice. The representative put forth the need and expectation of the people in assembly and determines the laws to be implemented in pursuance thereof.  The representative is accountable and responsible for the erroneous legislations. The concept of Judicial Review is against such basic principles of Democracy. S.P. Sathe considering this controversy maintains that it is a conflict between democracy and judicial review. In fact, because the power of judicial review is essentially counter-majoritarian, such a conflict is inherent. This power gives the judges the right to examine the Acts of the popularly elected legislature to find whether they violate any of the citizen’s fundamental rights. A judge, unlike from representatives, is unaware of the grounded realities and needs of people. He approaches things in the ideological way which is, to a greater extent, different from reality. Unlike representatives, a judge is not elected by people which diminishes the sense of accountability in  him. In this regard the views of Prof. Jeremy Waldron are of Great Significance. “judicial review is vulnerable to attack on two fronts. It does not, as is often claimed, provide a way for society to focus clearly on the real issues at stake when citizens disagree about rights….And it is politically illegitimate, so far as democratic values are concerned: by privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality”.[31]

It is illustrated in In S R Bommai v Union of India[32] laying down that the Presidential Proclamation dissolving a State Legislative Assembly is subject to judicial review and that if the court strikes down the proclamation, it has the power to restore the dismissed State Government to office. This is absolutely a case of overreaching the power provided in Constitution. This not only deviates us from the Democratic but also the Republic structure of our constitution

• Constitutional Limits of Judicial Review.

There are limitations to Judicial Review. However the power is used inappropriately the Apex court has recognized its limitations. In Tata Cellular v. Union of India[33],  the Supreme Court held that in the exercise of the power of judicial review the Court should observe the self-restraint and confine itself to the question of legality. Its concern should be whether a decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal would have reached, or abused its power.

• Procedure established by law

Article 22 of the Indian Constitution creates an exception to the fundamental rights by authorizing the National and State Legislatures to make laws providing for detention without charge or trial of individuals considered as a threat to security or order. In addition, to avoid the threat that substantive due process posed to the State’s regulatory power, the framers of the Indian Constitution purposely removed the ‘due process clause’ found in the Fifth and Fourteenth Amendments of the American Constitution. Instead, they replaced it with the bland guarantee that “no person shall be deprived of his life or personal liberty except according to the procedure established by law.”[34] The words ‘procedure established by law’ were specific and it was hoped that they would not give any scope for judicial veto against reforming legislation. While doing so, they unknowingly made the valuable fundamental right to life and liberty entirely dependent on the goodwill of the Legislature. In one of its earliest landmark cases, the Supreme Court dutifully followed the wording ‘procedure established by law’ in rejecting a substantive challenge to a preventive detention law allowing detention without trial.[35]

• Declaration of Emergency

Under emergency rule, the powers of the national government, and in particular the powers of the executive, over the state governments are drastically expanded. Article 358 provides that when the proclamation of emergency is made by the President under Article 352 the freedoms guaranteed by Article 19 are automatically suspended and would continue to be so far the period of emergency. The suspension of rights guaranteed by Article 19 thus removes restriction on the legislative and executive powers of the state imposed by the Constitution. Any law made by the state during this period cannot be challenged on the ground that they are inconsistent with the rights guaranteed by Article 19. However, such laws shall cease to have effect as soon as the proclamation ceases and then Article 19 is automatically revived and brings to operate. Article 358, however, makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over. Article 359 further empowers the President to suspend the right to move any court for the enforcement of rights conferred by Part III of the Constitution (expect Articles 20 and 21) during the continuance of emergency.[36]

In such cases the Judicial Review is non operative as the Fundamental Rights which are parameters to judge the constitutionality of any legislation are suspended, hence exercise of Judicial Review is restricted.

There are limitations to Judicial Review but they are continuously being ignored by the Judges. Striking down Constitutional Amendment is also alien to the purview of Judicial Review as it sometimes leads us towards judicial supremacy. These limits are violated grossly in past decades and the result thereof is the emergence of  unrestricted Judicial Adventurism.

• Judicial Review and Separation of Power.

Separation of Power means the division of powers between different organs of the state. In India we follow separation of functions and not Power. India’s is a written Constitution which clearly lays down the functions of all organs in well written and defined text. The function of law-making is vested with the Legislature in article 245 and the function of protecting the Fundamental Rights is vested with the Judiciary under article 13 and 32. The valid question here would be Whether the direction issued to central Government and the guidelines delivered in Vishakha vs. State of Rajasthan[37] have same enforceability as legislations.

Judicial Review basically means review and striking down of the Law which violates the basic structure of the Constitution. Article 141 of Indian Constitution gives enforceability to Judgments of supreme-court and thereby that judgment qualifies to be law. As Separation of power is the basic structure of the constitution, a question arises here is whether such Judgment can be subject to comparison with  constitution and can be deemed struck down if found inconsistent with constitution.  If it does then the Constitutional Supremacy is still maintained in India or otherwise the judiciary is supreme. In the very famous illustration of Indira Gandhi Nehru v. Raj Narain[38], where the dispute regarding P.M. election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise. So, the main ground on which the amendment was held ultra-vires was that when the constituent body declared that the election of P.M. won’t be void, it discharged a judicial function which according to the principle of separation it shouldn’t have done.

There are numerous illustrations which show the bad facets of the Judicial Review and question India’s approach to remove them. Judicial Review should go hand in hand with the written and democratic Constitution but Its overreach has violated the Constitution  more than its absence.

Chapter V : Conclusion

Judicial Review is developed on the ideological foundations of Constitutional Supremacy. However its inappropriate use and recent versions such as Judicial Interpretation has leaded its failure. This concept was evolved to protect the basic natural and civil rights of the citizens from the tyranny of Legislature and limit the parliamentary sovereignty. The recent striking down of the various legislations and new trend of making laws by Supreme Court has left many debates endless.

When Judges start thinking they can solve all the problems in society and start performing legislative and executive functions (because the legislature and executive have in their perception failed in their duties), all kinds of problems are bound to arise. Judges can no doubt intervene in some extreme cases, but otherwise they neither have the expertise nor resources to solve major problems in society. Also, such encroachment by the judiciary into the domain of the legislature or executive will almost invariably have a strong reaction from politicians and others.

Thus the Paper conclusively propose that there is a dire need to reconsider the concept of Judicial Review and Judicial Activism.

[1] Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L. J. 1346, 1354 (2006).

[2] (1952) SCR 597 (1952)SCJ 253, AIR 1952 SC 196.

[3] http://www.yourarticlelibrary.com/essay/judicial-review-in-india-meaning-features-and-other-details/40369/

[4] Marbury v. Madison (5 U.S. 137 [1803])

[5] For general discussion of the graphe paranomon procedure, see M.J. SUNDAHL, THE USE OF STATUTES IN THE SEVEN EXTANT GRAPHE PARANOMON AND GRAPHE NOMON ME EPITEDEION THEINAI SPEECHES, Unpublished Ph.D. Dissertation (Brown University 2000.

[6] Thomas Bonham v College of Physicians, (1610) 77 Eng. Rep. 646,652. Coke’s statement was subsequently

cited with approval in Day v. Savage, (1614) 80 Eng. Rep. 235,237,

[7] Gray, Mass. Repts, 51 469 (1761)

[8] Cortez, A.M.,Ewing & Jewell Cass Phillips, Essentials of American Government, American

Book Co., New York, 1962, p. 242.

[9] Marbury v. Madison (5 U.S. 137 [1803])

[10]Schwzarts, Bernard, The Reins of Power, A Constitutional History of the United States, Hill & Mong, New York, 1963, p. 51.

[11] (1878) ILR 3 Cal 64.

 [12]  Sarkar, R.C.S., op.cit., p. 353.

[13] Sunil Kumar Bose And Ors. vs The Chief Secretary, 54 CWN 394

[14] AIR 1951 SC 455

[15] AIR 1965 SC 845, 1965 SCR (1) 933

[16] AIR 1967 SC 1463.

[17] AIR 1973 SC 1461

[18] (1997) 3 SCC 261

[19] AIR 1980 SC 1042 at 1050.

[20]1980 AIR 1042, 1980 SCR (2) 924.

[21] Constitutional Assembly Debates, vol. 7, p. 953.

[22] AIR 1973 SC 1461.

[23] Ramesh Thaper v. Chaman Lal, AIR 1976 SC 1654.

[24] Tirupati Balaji Developers Private Ltd. v. State of Bihar, AIR 2004 SC 2351.

[25] According to Article 132, for the purpose of this Article, the expression ‘final order’ includes an order deciding

an issue that -if decided in favor of the appellant- would be sufficient for the final disposal of the case.

[26]For example, the Revenue proceedings, Tax Matters, Service and Electoral Matters.

[27] 319 US 624 (1943)

[28] (Hindustan Times, June 15, 2007):

[29] (1986) 4SCC 632

[30] (2007) 1 SCC 408

[31] Waldron, p. 1353

[32] [1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1)

[33] AIR 1996 SC 11.

[34] The Constitution of India, Art. 21. For a discussion of the Constituent Assembly debates, see Dhavan, supra note 424, p. 17.

[35] A. K. Gopalan v. State of Madras, AIR 1950 SC 27.

[36] It is to be noted that while under Article 358 of the rights conferred by Article 19 are automatically suspended, the suspension under Article 359 can only be brought about by an order of the President. Sathe, p. 56.

[37] (AIR 1997 SUPREME COURT 3011)