INTRODUCTION:

Indian constitution is the blend of American and British Constitutions. Indian Parliament is not a sovereign law-making body like its English counterpart. It is owing to this reason that our constitutional system “wonderfully adopt the via media between the American system of judicial supremacy and the English principles of parliamentary supremacy”. Judicial Review is one of the cardinal features of Indian constitutional system. India has constitutional and limited democracy which imposes limitations on the power of the government and banks on majority rule to avoid tyranny and arbitrariness. The Preamble of the Indian Constitution has promised equality and justice to all citizens of India and have the laws of India are liable to be tested judicially.

The majority rules though the best rule, is found generally to be addicted to tyranny. This is why the existence of some impartial body is essential for the maintenance of democracy.

The two-princial basis of judicial review are “Theory of Limited Government” and “Supremacy of constitution with the requirement that ordinary law must confirm to the Constitutional law.” Judicial Review is a mechanism and therefore the Concept of Judicial Activism is a part of this mechanism. So far as the, Indian constitution has created an independent judiciary which is vested with the power of judicial review to determine the legality of any validity of law and any executive action. Supreme Court of India formulated various doctrines on the basis of Judicial Review like “Doctrine of Severability, Doctrine of Eclipse, Doctrine of Prospective Overruling” etc. In India Judicial Review based on three important dimensions, these are” Judicial Review of Constitutional Amendments”, Judicial Review of Legislative Actions, “Judicial Review of Administrative Actions”. It is the duty of the judiciary to keep different organs of the state within the limits power conferred upon them by the constitution. The legitimacy of judicial review is based in the Rule of Law, and the need for public bodies to act according to law. Judicial review is a means to hold those who exercise public power accountable for the manner of its exercise, especially when decisions lie outside the effective control of the political process. Judicial Review is a great weapon through which arbitrary, unjust harassing and unconstitutional laws are checked.

The Constitution makers of India very wisely incorporated in the Constitution itself, the provisions of Judicial Review so as to maintain the balance of federalism, to protect the fundamental rights guaranteed to the citizens and to afford a useful weapon for equality, liberty and freedom. So observed Patanjali Sastri, J., in State of Madras v. V.G. Rao, 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”. The Constitution of India explicitly establishes the doctrine of Judicial Review in several Articles, such as 13, 32, 131, 136, 143, 226 and 246. Art. 13(2) says that “the State shall not make any law which takes away or abridges the right conferred by this part and any law made in contraventions of this clause shall, to the extent of the contravention, be void”.

Under U.S. Constitution:

The concept of Judicial Review is basically originated in USA in the historic landmark case Marbury vs. Madison¹ But originally Lord Coke decision in, Dr. Bonham vs. Cambridge University had rooted the scope of judicial review first time in 1610 in England. The US Constitution doesn’t provide power of judicial review expressly but Article III of the U.S. Constitution as "the judicial power of the United States which includes original, appellate jurisdiction and also matter arising under law and equity jurisdiction incorporates judicial power of Court. Art. VI of the Constitution provides” All powers of government are exercisable.

Only by on the authority of the organ established by the Constitution. Thus Art VI incorporates “Constitution of USA is the supreme law of the land”. Judicial review is not expressly provided in the US Constitution, but it is the formulation by the Court. Supreme Court of US has power to check the action of Congress and State Legislatures from delegating the essential legislative function to the executive. The principle “due process of law” creates a democratic balance in US by declaring the arbitrary and illegal laws.

Objects Of Judicial Review in USA:

The main objectives of Judicial Review in USA are as follows:

1. To declare the laws unconstitutional if they are contrary to the Constitution.

2. To defend the valid laws which are challenged to be unconstitutional.

3. To protect and uphold the Supremacy of the Constitution by interpreting its provision.

4. To save the legislative function of Congress being encroached by other departments of the Government.

Under UK Constitution:

in UK, there is no written constitution. Earlier, there was no scope of judicial revie in UK. The principle of “Parliamentary Sovereignty” dominated to Constitutional democracy in United Kingdom. There is Parliament Supremacy UK which incorporates the will of the people and Courts cannot scrutinize the actions of Parliament. In UK, Parliament prevents the scope of Judicial Review to Primary legislation (legislation enacted by Parliament) except in few cases related to Human Rights and individual freedom, therefore Primary legislation is outside the purview of judicial review. But, as regards to Secondary legislation (rules, regulation, act of Ministries) are subject to Judicial Review. Court can review the actions of administrative and executive actions in UK. Judicial Review in UK is basically on procedural grounds which is largely related to administrative actions.

Judicial Review in India:

“Supremacy of the law is the spirit of the Indian Constitution. In India, the “DOCTRINE OF JUDICIAL REVIEW “is the basic feature of the Constitution. It is the concept of Rule of Law and it is the touchstone of Constitution India. The most prominent object of judicial review to ensure that the authority does not abuse its power and the individual receives just and fair treatment. The ostensible purpose of judicial review is to vindicate some alleged right of one parties to litigation and thus grant relief to the aggrieved party by declaring an enactment void, if in law it is void, in the judgment of the court. But the real purpose is something higher i.e., no statute which is repugnant to the constitution should be enforced by courts of law.

Important Doctrines Formulated by Courts through Judicial Interpretations: Art. 13 of constitution incorporates “Judicial Review of Post constitution and Pre-constitutional laws”. This Article inherited most important doctrines of judicial review like Doctrine of Severability, Doctrine of Eclipse. Article 13 provides for the “judicial review” of all the legislations in India, past as well as future. This power has been conferred on the High Courts and the Supreme Court of India under Art. 226 and 32 which can be declare a law unconstitutional if it is inconsistent with any of the provisions of PART 3 of the Constitution. Some other doctrines are formulated by courts using the power of judicial review are Doctrine of Pith and Substance, Doctrine of Colorable legislation. These doctrines are originated by Supreme Court by using power of judicial review through interpreting various Articles.

Doctrine of Severablity:

Art. 13 of the Indian constitution incorporates this doctrine. In, Art. 13 the word” to the extent of contravention” are the basis of Doctrine of Severability. This doctrine enumerates that the court can separate the offending part unconstitutional of the impugned legislation from the rest of its legislation. Other parts of the legislation shall remain operative, if that is possible. This doctrine has been considerations of equity and prudence. It the valid and invalid parts are so inextricably mixed up that they cannot be separated the entire provision is to be void. This is known as “doctrine of severability” In A.K Gopalan vs. State of Madras², case section 14 of Prevention Detention Act was found out to be in violation of Article 14 of the constitution. It was held by the Supreme Court that it is Section 14 of the Act which is to be struck down not the act as a whole. It was also held that the omission of Section 14 of the Act will not change the object of the Act and hence it is severable. Supreme court by applying doctrine of severability invalidate the impugned law.

Doctrine of Eclipse:

This doctrine applies to a case of a pre constitution statute. Under Art. 13(1) of the constitution, all pre constitution statutes which are inconsistent to part 3 of the constitution become unenforceable and unconstitutional after the enactment of the constitution. Thus, when such statutes were enacted, they were fully valid and operative. They become eclipsed on account of Art. 13 and lost their validity. This is called “Doctrine of Eclipse”. If the constitutional ban is removed, the statute becomes free from eclipse, and becomes enforceable again.

In Bhikaji Narain Dharkras vs. State of M.P.³ an existing State law authorized the State Govt to exclude all the private motor transport operators from the field of transport business. After these parts of this law became void on the commencement of the constitution as it infringed the provisions of Art. 19(1)(g) and could not be justified under the provisions of Art.19(6) of the constitution. First Amendment Act, 1951 amended the Art. 19(6) and due to this Amendment permitted the Government to monopolize any business. The Supreme Court held that after the Amendment of clause (6) of Art. 19, the constitutional impediment was removed and the impugned Act ceased to be unconstitutional and became operative and enforceable.

Doctrine of Prospective Overrulling:

The basic meaning of prospective overruling is to construe an earlier decision in a way so as to suit the present-day needs, but in such a way that it does not create a binding effect upon the parties to the original case or other parties bound by the precedent. The use of this doctrine overrules an earlier laid down precedent with effect limited to future cases and all the events that occurred before it are bound by the old precedent itself. In simpler terms it means that the court is laying down a new law for the future. This doctrine was propounded in India in the case of Golak Nath vs. State of Punjab⁴ In this case the court overruled the decisions laid down in Sajjan Singh 83 and Shankari Prasad. s84 cases and propounded Doctrine of Prospective Overruling. The Judges of Supreme Court of India laid down its view on this doctrine in a very substantive way, by saying "The doctrine of prospective overruling is a modern doctrine suitable for a fast-moving society.” The Supreme Court applied the doctrine of prospective overruling and held that this decision will have only prospective operation and therefore, the first, fourth and nineteenth Amendment will continue to be valid. Our Indian Constitution, Judicial Review is explicitly provided in three dimensions such as “Judicial Review of Constitutional Amendments”, Judicial Review of Parliament and State Legislation and also Judicial Review of Administrative actions of Executives.

Judicial Review of Constitutional Amendments:

In India, constitutional amendments are very rigid in nature. Although supreme court of India is the guardian of Indian Constitution, therefore supreme court time to time scrutinize the validity of constitutional amendment laws, parliament has the supreme power to amend the constitution but cannot abrogate the basic structure of the constitution. But there was a conflict between Court and Parliament regarding Constitutional Amendment that whether fundamental rights are amendable under Art. 368 or not? The question whether fundamental rights can be amended under Art. 368 came for consideration of the Supreme Court in Shankari Prasad v. Union of India⁵. The first case on amendability of the constitution the validity of the constitution (1st Amendment) Act, 1951, curtailing the “Right to Property” guaranteed by Art. 31 was challenge .The argument against the validity of ( 1st Amendment) was that Art. 13 prohibits enactment of a law infringing an abrogating the fundamental rights, that the word ‘law’ in Art 13 would include” any law”, then a law amending the constitution and therefore, the validity of such a law could be judged and scrutinized with reference to the fundamental rights which it could not infringe. It was argued that the “State in Article 12 included Parliament and the word “law” in Art. 13(2), therefore, must include constitutional amendment””. The Supreme Court, however, rejected the above argument and held that the power to amend the constitution including the fundamental rights is contained in Art. 368, and that the word ‘law’ in Art. 13(2) includes only an ordinary law made in exercise of the legislative powers and does not include constitutional amendment which is made in exercise of constituent power. Therefore, a constitutional amendment will be valid even if it abridges or takes any of the fundamental rights. Again, In 1964 Sajjan Singh v. Rajasthan⁶ the same question was raised when the validity of the Constitution (Seventeenth Amendment) Act, 1964, was called in question and once again the court revised its earlier view that constitutional amendments, made under Art. 368 are outside the purview of Judicial Review of the Courts. In this case the Constitution (17^th Amendment) Act, 1964 was challenged an upheld. After two years, after the decision of Sajjan Singh, in 1967 in Golak Nath vs. State of Punjab the same question regarding constitutional amendment was raised. In this case the inclusion of the Punjab Security of Land Tenures Act,1953 in the Ninth schedule was challenged on the ground that the Seventeenth Amendment by which it was so included as well as the First and the Fourth Amendments abridged the fundamental rights were unconstitutional. The Supreme Court overruled the decision of Shankari Prasad and Sajjan singh’s case. The Supreme Court observed that “An amendment is a ‘law’ within the meaning of Art. 13(2) included every kind of law, “statutory as well as constitutional law” and hence a constitutional amendment which contravened Art. 13(2) will be declared void.” Court further observed that “The power of Parliament to amend the constitution is derived from Art.245, read with Entry 97 of list 1 of the Constitution and not from Art.368. Art. 368 only lays down the procedure for amendment of Constitution. Amendment is a legislative process.”86. Twenty Fifth and Twenty Ninth Amendment in the famous case Keshavananda Bharti vs. State of kerela⁷ which is also known as “Fundamental Rights Case”. The petitioner was challenged the validity of Twenty Fourth, Twenty Fifth, and Twenty Ninth Amendment to the Constitution and also the question was involved was as to what extent of the amending power conferred by Art. 368 of the Constitution? The Supreme Court overruled the Golak Nath’s case and held that” Under Art. 368 Parliament can amend the fundamental rights but cannot take or abridges the Basic Structure of the Constitution”. According to this judgment of largest bench in the constitutional history propounded the “Theory of Basic Structure: A Limitation on Amending Power.” This theory formulated By Supreme court through Doctrine of Judicial Review.

Judicial Review of Administrative Actions:

The Doctrine of Judicial Review is embodied in the Constitution and the subject can approach High Court and Supreme Court for the enforcement of fundamental right guaranteed under the Constitution. If the executive or the Government abuses the power vested in it or if the action id mala fide, the same can be quashed by the ordinary courts of law. All the rule, regulations, ordinances, bye-laws, notifications, customs and usages are “laws” within the meaning of Art.13 of the Constitution and if they are inconsistent with or contrary to any of the provisions thereof, they can be declared ultra vires by the Supreme Court and by the High Courts. Judicial review of administrative action aims to protect citizens from abuse of power by any branch of State. “When the legislature confers discretion on a court of law or on an administrative authority, it also imposes responsibility that such discretion is exercised honestly, properly and reasonably” This view of “DE Smith” clearly point out that discretion of administrative action should be used with care and caution. So, the abusive discretionary power of administrative action must be review by judiciary. If judiciary founds any ground of illegality of any administrative action, it is the duty of the judiciary to maintain check and balance.

Grounds of Judicial Review of Administrative action:

The judicial review of administrative action can be exercised on the following grounds:

1. Illegality:

Means that the decision maker must correctly understand the law that regulates his decision-making power and must give effect to it.

2. Irrationality:

Means that the decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person could have arrived at such a decision.

3. Procedural impropriety:

Means that the procedure for taking administrative decision and action must be fair, reasonable and just.

4. Proportionality:

Means in any administrative decision and action the end and means relationship must be rational.

5. Unreasonableness:

Means that either the facts do not warrant the conclusion reached by the authority or the authority or by the decision is partial and unequal in its operation. But in the famous case Council of Civil Service Unions vs. Minister for the Civil Service, Lord Diplock highlighted the grounds by his observations “Judicial review has I think developed to a stage by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, second ‘irrationality’ and the third ‘procedural impropriety’.

Judicial Review of Parliamentary and state Legislative Actions:

Art. 245 and 246 of the Indian constitution gives legislatives powers to Parliament and State Legislatures. Art. 245 (1) provides “subject to the provisions of the constitution, the parliament may make any laws for the whole and any part of the territory of India and a State Legislature may make a law for whole of the state and any part thereof”. The word “subject to the provisions of the constitution” are imposed limitations to the Parliament and State Legislature to make legislation. These words are the essence of Judicial Review of legislative actions in India. It ensure that legislation should be within the limitations of constitutional provision. These words provides power to the Courts to scrutinize the validity of legislation. The Supreme Court have supreme power under Art. 141 which incorporates “Doctrine of Precedent” to implement its own view regarding any conflicted issue and it’s also have binding force. Supreme Court gives us some relevant observations through judicial decisions regarding the legislative actions of Parliament and State Legislatures.

In SP Sampat kumar vs. Union of India⁸ the constitutional validity of Administrative Tribunal Act, 1985, was challenged on the ground that that the impugned Act by excluding the jurisdiction of the High Courts under Art. 226 and 227 in service matters had destroyed the judicial review which was an essential feature of the constitution. The Supreme Court held that though the Act has excluded the judicial review exercised by the High Courts in service matters, but it has not excluded it wholly as the jurisdiction of the Supreme Court under Art. 32 and 136. Further held that” a law passed under Art. 323-A providing for the exclusion of the jurisdiction of the High Courts must provide an effective alternative institutional mechanism of authority of judicial review. The judicial review which is an essential features of the constitution can be taken away from the particular area only if an alternative effective institutional mechanism or authority is provided.” Again, in L Chandra vs. Union of India⁹, clause 2(d) of Art. 323-A and clause 3(d) of Art.323-B was challenged on the ground that these clauses excludes the jurisdiction of High Courts in service matters. The Constitutional Bench unanimously held that “these provisions are to the extent they exclude the jurisdiction of the High Courts and Supreme Courts under Art.226/227 and 32 of the constitution are unconstitutional as they damage the power of judicial review. The power of judicial review over Legislative Actions vested in the High Courts and Supreme Court under Art. 226/227 and Art.32 is an integral part and it also formed part of its basic structure.” Then, in the recent scenario, I.R. Coelho vs. State of Tamil Nadu¹⁰, the petitioner had challenged the various Central and State laws put in the Ninth Schedule including the Tamil Nadu Reservation Act. The Nine Judges Bench held that “any law placed in the Ninth Schedule after April 24, 1973 when Keshvananda Bharati’s case judgment was delivered will open to challenge, the court said that the validity of any Ninth Schedule law has been upheld by the Supreme Court and it would not be open to challenge it again , but if a law is held to be violation of fundamental rights incorporated in Ninth Schedule after the judgment date of Keshvanand Bharati‘s case, such a violation shall be open to challenge on the ground that it destroy or damages the basic structure of constitution”. The Supreme court observed that “Judicial Review of legislative actions on the touchstone of the basic structure of the constitution”

CONCLUSION:

Separation of power is the concept which correlated with all the organs, and it is the duty of the Court to maintain check and balance. But in India, Courts have no power to take cognizance suo moto and to declare the law void, courts can initiate only when matter comes before the courts. Courts cannot questioned to any political matter, but it cannot mean that the court would avoid giving its decision under a shelter of political question, its is not the duty of the court. Sometimes it seems to be that court evolves judicial legislations but it may not be correct in India. Parliament has authority to make law in India, but in USA and UK courts evolving judicial legislation. Judicial review checks the legislative power from delegating its essential functions and also sometimes discourages the legislature from enacting void and unconstitutional legislation. In India and US, there are various constitutional limitations implicitly and also explicitly, which incorporates limitations to the law making power of Legislature, such as legislature cannot go beyond its power to make law, it cannot make law against the Principles of Natural Justice. Legislation cannot violate the fundamental rights which is the basic structure of the Constitution.

One organ should be accountable to some other organ in any manner, but it cannot encroaches its limits. It establishes the concept of Rule of Law. As Justice P.N. Bhagwati in his minority judgment in Minerva Mills case observed “It is for the judiciary to uphold the Constitutional values and to enforce the Constitutional limitations, that is the essence the Rule of law, which inter alia requires that the exercise of powers by the Government whether it be the legislative or the executive or any other authority be conditioned by the Constitution and the law” It enables the court to maintaining harmony in the State. By declaring invalid laws, court protects individual as well as collective rights also. The basic feature is to protect the individual rights, therefore there is a need of expansion of judicial review. To strengthen judicial review will become strengthen the liberty and freedom of individual. The concept of judicial review are also criticized. By the strict behavior of the Courts, sometimes it is criticized in the political corridors. It should not be happen in any manner, because Supremacy of law prevails in the interpretations of the Courts, we the people cannot questioned to the actions of judiciary because Supreme Court performing as the guardian of the Law of the land.

REFERENCE:

1. 5 U.S. 137 (1803)

2. 1950 AIR 27, 1950 SCR 88

3. 1955 AIR 781, 1955 SCR (2) 589

4. 1967 AIR 1643, 1967 SCR (2) 762

5. 1951 AIR 458, 1952 SCR 89

6. 1965 AIR 845, 1965 SCR (1) 933

7. (1973) 4 SCC 225; AIR 1973 SC 1461

8. 1987 AIR 386, 1987 SCR (1) 435

9. 1997 (2) SCR 1186

10. (2007) 2 SCC1: AIR 2007 SC 861

Received on 12.02.2021 Modified on 27.02.2021

Int. J. Ad. Social Sciences. 2021; 9(2): 87-92.

DOI: 10.52711/2454-2679.2021.00006