This article has been written by Ms. Sonakshi Singla, a student of Army Institute of Law, Mohali
Hobbes gave the theory of Social Contract under which people have given up on their rights and entered into a contract with the government in return of which the government gave them protection against the wrong. But law without proper justice might become arbitrary and unjust. This was the reason judicial review was adopted by the government.
The principle of judicial review became an important feature of written Constitutions of various countries. Seervai in his book Constitutional Law of India noted that the principle of judicial review is a familiar feature of the Constitutions of Canada, Australia and India, though the doctrine of Separation of Powers has no place in strict sense in Indian Constitution, but the functions of various organs of the govt are sufficiently differentiated, in order that one organ of the govt couldn’t usurp the functions of another. We have adopted this feature from the US Constitution. But it took tons of years to repair this feature in our constitution. Judiciary has played a crucial role during this regard.
JUDICIAL REVIEW IN INDIA
It is generally believed that the power of judicial review of the Supreme Court of India is traceable to article 13(1) and (2) and article 32(I) and of the High Courts to article 226.
Article 13 which appears in part III of the Constitution dealing with the fundamental rights it’s clause 1 provides as follows:
(1) All laws in force in the territory of India immediately before the commencement of this Constitution in thus 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.
Article 32 clause 1 provides:
The right to maneuver the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
Article 226 clause 1 confers on the various High Courts the ability to enforce “any of the rights conferred by Part III and for the other purpose.”
It is often seen from the above provisions that the review of the Supreme Court is confined to declaring as unconstitutional and null and void the laws made by Parliament and therefore the state legislatures if they deduct or abridge any of the fundamental rights conferred by part III. There is no other express provisions conferring similar power on the Supreme Court with regard to legislation contravening provisions of the Constitution other than those contained in part III. On the other hand, article 226 confers on the High Courts the ability to strike down laws contravening not only the provisions of that part but also “for any other purpose.” Thus the High Courts’ power of review extends not only to part III but also to the rest of the Constitution. The necessary consequence of the above position would be that the Supreme Court’s power of review within the exercise of its original jurisdiction under article 32 is confined to part III whereas in its appellate jurisdiction the Supreme Court can exercise this power over the whole Constitution.
WHAT ARE THE POWERS OF JUDICIAL REVIEW WITH THE SUPEREME COURT AND HIGH COURT ?
Consequently the Supreme Court of India and the High Courts are bestowed with the power of review altogether its three aspects so as far generally understood, i.e.,
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- Firstly, the review means the power of the courts to review delegated or subordinate legislation and therefore the acts of the chief in terms of their compatibility with the parent Acts. This has come to be known as the ‘ultra vires’ doctrine and this power is exercised by the courts in England, USA and in India.
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- Secondly under federal Constitutions the courts have the facility to enforce the scheme of distribution of legislative powers between the Central Government and therefore the provincial governments. This judicial function is inherent in a written federal Constitution irrespective of whether such power is expressly conferred or necessarily inferred. Judicial review in this sense is peculiar to federal Constitutions, like that of the USA and India and hence is not found under the English Constitution which is unitary and unwritten.
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- Thirdly, judicial review in its third and most commonly used sense means the power of the courts to declare the Acts of the legislature as unconstitutional if such a legislation is repugnant to the Constitution which is the fundamental law of the country. This was in essence what was propounded by Chief Justice Marshall in Marbury v. Maddison and this power is also exercisable by the courts in the USA and India and not in the United Kingdom.
IS JUDICIAL REVIEW AN ABSOLUTE POWER ?
As we know that the citizens have the basic fundamental rights guaranteed to them by the constitution and the judiciary has the responsibililty to safeguard them. What if the government tries to make any law which violates , abridges or contravene these fundamental rights of the citizens but in the back of its mind the government knows that there is the jusiciary which has to power of judicial review and hence cannot do so.
So can the government try and altogether take away this power of judicial review from the judiciary by passing a law?
To answer this let’s look at some of the important cases :
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- KESAVANANDA BHARTI V. STATE OF KERALA 1973
The doctrine of judicial review has been taken to its pinnacle of glory in the famous Kesavananda Bharati v. State of Kerala. In that historic and momentous judgment, the Supreme Court held that while the amending power under article 368 is comprehensive enough to cover the amendment of any part of the Constitution including the fundamental rights, the power could not be exercised so as to destroy those features of the Constitution which constitute its basic structure.
· MINERVA MILLS V. UNION OF INDIA 1980
In this case, further Judicial Review was added to the list of Basic Structure of the constitution along with the balance between Fundamental Rights and Directive Principles.
· I.R. COELHO V. STATE OF TAMIL NADU,2008
In this case the court held that any act inserted in Schedule 9 can be judicially scrutinized but only those enactments which are inserted after 24th April 1973(the date when the Kesavananda Bharati verdict was declared)
Judicial review is hence an absolute power because it cannot be violated ,abridged and contravene.
GROUND OF JUDICIAL REVIEW
Trends of judicial decisions shows that the courts do not interfere in the admininstrative decisions unless thses contravene the constitution or law or are arbitrary or malafide.
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- SIDHESHWAR SAHAKARI SAKHAR KARKHANA LTD. V. UOI, 2005
The apex court opined that normally the judiciary do not interfere in the policy matters which is within the preview of the government unless it is contrary to the law or against the provisions of the constitution
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- MOHAN DAS HEDGE V. STATE OF KARNATAKA, 2005
Supreme court laid down that even a wrong decision of a business corporation cannot be challenged unless it is malafide.
The mechanism of judicial review of administrative action can be divided into two categories
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- Public law review– Under article 32 supreme court &under article 226 high court have power to issue writs in the nature of habeas corpus , mandamus, certiorari, prohibition & quo warranto. Article 136 states that supreme court may in its discretion grant special leave to appeal from any judgement or order in any matter passed by any court or tribunial except the court or tribunal constituted under any law relating to armed forces.
Article 227 confers power of superintendence upon a high court over the courts & tribunals throughout the territories in relation to which it excersises jurisdiction. The power of interference is limited to seeing that the tribunals functions within the limits of its authority.
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- Private law review- This is exercised through
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- Injunction- It is a court’s order that compels a party to do or refrain from doing any act.
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- Declaratory relief – Under this court determines the rights of the parties without offering anything to be done or awarding damages.
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- Action for damages- If a person is aggrevied he can file a civil suit under sec 80 of cpc for damages.
CONCLUSION
In India, we have the concept of judicial review embedded in the basic structure of the constitution. It helps the courts to keep a check and balance upon the other two organs of government so that they don’t misuse their power and work in accordance with the constitution. The growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action have all resulted in the increasing significance of the role of the judiciary.
REFRENCES