Judicial Review in India
This article discussing the Scope of Judicial Review in India is written by Vikranta Pradeep Barsay a student of National Law University and Judicial Academy, Assam.
British trade commenced in India with the establishment of a factory in Surat in 1612 with the permission of the Mughal Emperor Jehangir; additionally, the British envoy to India, Sir Thomas Roe gained the exclusive permission to set up factories in other parts of India along the east and west coast of the country.
The East India Company faced hindrance from their local competitors, the Dutch and the Portuguese, wherein the British and the Portuguese clashed for the first time in the Battle of Suvali in November 1612 on the coasts of the village of Suvali, India.
The victories over the said competitors did not resolve the tensions between the Britishers and the local Mughal rulers who imprisoned the President of the East India Company in Surat for a bail-bond of £ 18,000; consequently, the British moved to southern India where the local Indian resistance was comparatively lesser. The primordial factory in southern India was set up in Masulipatam in 1611; however, the local emperor of Madras leased some land to the East India Company to built a larger factory in 1639, which later become Fort St. George.
In the year 1668, King Charles II of England leased the seven islands of Bombay to the East India Company for ten pounds a year that the former had received as a dowry from the Portuguese in its marriage to Catherine of Braganza. Job Charnock set up a factory at Suttanati in 1690, ergo, Calcutta was conceptualized in 1698 by acquiring the ownership of three districts: Suttanati, Kalikata and Govindpur; additionally, Fort William saw the light of day in 1700.
In the later years of the 17th century, an Admiralty Court was set up in the Bombay (1683) and Madras (1686) constituencies by the British East India Company to deal with civil and criminal cases of maritime and mercantile nature  King George I issued a charter in 1726 to establish Mayor Courts in Bombay, Madras and Calcutta, wherein the court was entrusted with the adjudication of civil suits within their respective jurisdictions; additionally, the court acted as a channel to subsume the principles of English Common Law and Equity as the lex loci of the presidencies. The imposition of English Common Law over the Indian customs caused some unrest among the locals.
The legal structure between the three presidencies was not uniform since the Mayor Courts heard cases restricted to the Britishers and other non-natives in their respective jurisdictional presidency, wherein the presidencies of Madras and Calcutta had separate Choultry and Zamindars’ Courts to adjudicate civil matters between native Indians while the Bombay presidency’s Mayor Court did not differentiate between natives and non-natives.
It is worth noting that the Indian High Courts Act, 1861, established High Courts of Judicature in the provinces of Calcutta (July 01, 1862), Bombay (August 14, 1862) and Madras (August 15, 1862) by abolishing the Supreme Courts of Judicature and the respective provincial Sadr Diwani Adalats and Sadr Nizamat Adalats.
The jurisdiction of the High Courts of Judicature was an amalgamation of the preceding Supreme Courts of Judicature (Original Jurisdiction) and the Sadr Diwani/ Nizamat Adalats (Appellate Jurisdiction); additionally, the said High Courts were empowered with the authority of administrative supervision.
The rationale behind establishing a High Court was two-tiered: a) Creating a uniform legal system within their respective presidency, and b) Issuing prerogative writs to keep a check on the other organs of the government (Judicial Review). It is worth mentioning that the aforementioned underlying rationale has survived for 150+ years in the form of Judicial Review under Article 13 of the Indian Constitution in post-independence India.
Do visit- Governor: A Titular Head?
What is Judicial Review?
One of the oldest rulings about Judicial Review comes from the case of Marbury v. Madison (1803) 5 U. S. 137, wherein Chief Justice John Marshall was deciding the constitutional validity of Section 13 of the Judiciary Act, 1789, against Article 3, Section 2 of the Constitution of the United States of America.
The latter provision limits the scope of original jurisdiction of the Supreme Court to cases where either the United States of America is a party or the foreign ambassadors, ministers and public consuls are involved; however, the former provisions expanded the original jurisdiction of the Supreme Court to allow them to issue the writ of Mandamus to any person holding a public office under the authority of the United States of America.
Chief Justice John Marshall held that the Judiciary is dutifully bound to void any legislative statute, which dissociates itself from the principles of the supreme written law of the land (The paramount Constitution of the United States of America); this authority of the Judiciary to keep a check on the actions of the Legislative to uphold the superiority of the Constitution is known as Judicial Review per Chief Justice John Marshall.
It is worth noting that the Judiciary acts as the guardian and the custodian of the Constitution of India, wherein it employs Judicial Review to protect the rights and liberties of individuals (including the citizens of India and the aliens to the State) against arbitrary discrimination of the State, i.e. Judicial Review is a constitutional defence against the tyranny of the Legislative and the Executive.
Judicial Review and India
The provisions of Judicial Review entered India with the introduction of the Government of India Act, 1935, wherein the British Parliament divided subjects between the Federal Parliament (Union List) and the Provincial Government (Provincial List), such that each body has exclusive rights to make laws regarding their subjects; additionally, a Federal Court was established to adjudicate the disputes between the Union and the Provinces. The Federal Court was entrusted with the authority to check the adherence of the legislative statutes with incumbent laws using Judicial Review.
The Constitution of India envisages the power of Judicial Review within Article 13, wherein the court of law is empowered to nullify any ordinance/ bye-law/ order/ rule/ regulation/ notification of the State (under Article 12 of the Indian Constitution) if and only if the aforementioned legislation violates the provisions within Part III of the Indian Constitution (Fundamental Rights) under Article 13, Section 2. It is worth noting that the Supreme Court of India derives its authority of Judicial Review from Article 32 of the Indian Constitution while the respective High Courts derive their authority under Article 226.
Although the Doctrine of Separation of Powers in any democratic nation like Canada, Australia and India allows each organ of the democratic society (the Legislative, the Executive and the Judiciary) to function independently without any interference from the other organs, the authority of Judicial Review protects the citizens of India against the wrongs of the Legislative and the Executive while seeking accountability from persons who wield public power.
It is worth mentioning that the ambit of Judicial Review bars the court of law from suggesting any novel policies to the Executive and the Legislative (including the Union Parliament and the State Legislative Assembly) under Article 32 and Article 226 of the Indian Constitution; however, the said Court is empowered to void any statute of the Union Parliament/ State Legislative Assembly that fulfils either one of the following conditions: a) The said statute defies certain provisions of the Constitution of India, and b) The said statute violates the basic structure of the Constitution (including the Fundamental Rights of the citizens of India).
A five-judge constitutional bench (Justice M. P. Sastri, Justice M. C. Mahajan, Justice B. K. Mukherjea, Justice S. R. Das and Justice N. C. Aiyar) in the case of The State of Madras v. V. G. Row & Ors. (1952) SCR 597, held that the Court of Law (either the Supreme Court of India or the High Court) must avoid using Judicial Review as a tool to crusade against the authority of the Legislative; however, the bench added that the Judiciary must fulfil its constitutional duty to check the constitutionality of a disputed statute whilst giving weight to the Legislative’s authoritative judgement.
In a nutshell, the appropriate court of law conducts a judicial assessment to check if the Legislative statutes conform to the values of the Constitution of India while adhering to the mandated limitations in the Constitution. For example, Justice S. F. Ali quashed Section 7, Sub-Section 1, Clause C of the East Punjab Public Safety Act, 1949, for unreasonably and arbitrarily restricting the fundamental freedom of speech and expression under Article 19, Section 1, Clause A of the Indian Constitution.
Judicial Review stands on two cardinal doctrines: a) The Doctrine of Eclipse and b) The Doctrine of Severability under Article 13 of the Indian Constitution. The Constitution of India was enforced on January 26, 1950.
Article 13, Section 1 of the Indian Constitution invalidates every pre-1950 Legislative statute that was in force within the territory of India if and only if the said statute violates any provision within Part III of the Indian Constitution; thus, the once valid and operative statutes become eclipsed in its enforceability owing to Article 13 (Doctrine of Eclipse).
The Motor Vehicles (Amendment) Act, 1947 provided extensive powers to the State Governments in the area of monopolizing the motor transport business; subsequently, the State of Madhya Pradesh decided to bar private motor transport operators from entering the motor transport business of the state.
It was contended that the amended statute infringed on the fundamental freedom under Article 19, Section 1, Clause G of the Indian Constitution whilst escaping the ambit of reasonableness under Article 19, Section 6, wherein the statute was declared unconstitutional under Article 13; however, the Constitution (First Amendment) Act, 1951, amended Article 19, Section 6 that allowed the State to monopolize any business. Justice S. R. Das upheld the disputed statute since the constitutional amendment of 1951 removed the enforcement eclipse that existed over the said statute due to the pre-amendment version of Article 19, Section 6.
The phrase “to the extent of the contravention” in Article 13, Section 2 elucidates the Doctrine of Severability, wherein the competent court of law can remove a certain unconstitutional portion from a disputed Legislative statute, such that the remaining provisions of the said statute become constitutionally enforceable; however, if the constitutional and the unconstitutional provisions within a statute are pervasively interwoven, then the entire statute becomes unconstitutional and void.
In the case of The State of Bombay & Anr. v. F. N. Balsara (1951) SCR 682, a five-judge constitutional bench (Justice S. F. Ali, Justice M. P. Sastri, Justice B. K. Mukherjea, Justice S. R. Das and Justice V. Bose) severed Section 136, Sub-Section 1 and Sub-Section 2, Clauses B, C, E and F due to its infringement with Article 19 of the Indian Constitution, wherein the bench did not invalidate the whole statute.
A five-judge constitutional bench (Justice M. N. Venkatachalliah, Justice L. M. Sharma, Justice J. S. Verma, Justice K. J. Reddy and Justice S. C. Agrawal) in the case of Kihoto Hollohan v. Zachillhu & Ors. (1992) 1 SCR 686, held that paragraph 7 of the Schedule X of the Indian Constitution inserted by the Constitution (Fifty-Second Amendment) Act, 1985, is invalid due to its clash with Article 368, Section 2 of the Indian Constitution.
If the abrogation of the constitutionally invalid component from a given Legislative statute results in the invalidation of the entire statute, then the court of law is allowed to abrogate the whole statute due to the interwoven nature of the valid and the invalid components.
also read- Independence of the Judiciary
Forms of Judicial Review
The ambit of Judicial Review is spread over three domains: a) Judicial Review to correct the decisions of the Judiciary in previous cases (including the Judicial Review of constitutional amendments), b) Judicial Review to enforce a discipline of Constitutionality over the actions of the administrative agencies, and c) Judicial Review of Legislative actions and statutes.
- Judicial Review of Constitutional Amendments:
The Constitution of India is neither rigid nor flexible, wherein certain provisions of the Constitution can be amended with a simple majority (passing the Amendment Bill by a House of the Parliament by an approval vote of no less than 66.66 per cent (two-thirds) of the Members of the Parliament who are present and voting) while some provisions require a special majority (additional ratification by a minimum of 50 per cent of all State Legislative Assemblies). It is worth noting that the power to amend the Constitution rests with the Union Parliament under Article 368, Sections 1 and 2 of the Indian Constitution.
Article 13, Section 4 and Article 368, Section 3 expounds on the fact the Constitutional Amendments under Article 368 are immune from the scrutiny of Judicial Review.
The tussle between the Judiciary and the Legislative regarding the aforementioned question began with the case of Shankari Prasad Singh Deo v. The Union of India & Anr. (1952) SCR 89, wherein Justice M. P Sastri dismissed the disputed infringement of the petitioner’s fundamental right to property (Article 31 of the Indian Constitution) by the Constitution (First Amendment) Act, 1951, on the grounds of a narrow interpretation of Article 13, Section 2 of the Indian Constitution.
Justice M. P. Sastri held that the ambit of Judicial Review to ‘Ordinary Laws’ and not Constitutional Amendments, i.e. a Constitutional Amendment may abrogate the fundamental rights of an individual. A similar interpretation of conferring the Legislative with the authority to amend any provision within the Indian Constitution under Article 368 was held by a five-judge constitutional bench of Justice P. B. Gajendragadkar, Justice K. N. Wanchoo, Justice M. Hidayatullah, Justice R. Dayal and Justice J. R. Mudholkar in the case of Sajjan Singh v. The State of Rajasthan (1965) 1 SCR 933.
The landmark case that included Constitutional Amendments within the scope of Judicial Review, is the case of I. C. Golaknath & Ors. v. The State of Punjab & Anr. (1967) 2 SCR 762 where an eleven-judge constitutional bench (Justice K. S. Rao, Justice K. N. Wanchoo, Justice M. Hidayatullah, Justice J. C. Shah, Justice S. M. Sikri, Justice R. S. Bachawat, Justice V. Ramaswami, Justice J. M. Shelat, Justice V. Bhargava, Justice G. K. Mitter and Justice C. A. Vaidyialingam) held that the definition of “law” under Article 13, Section 2 of the Indian Constitution includes not only Statutory laws but also Constitutional Amendments within Judicial Review.
The bench added that Article 368 must be not be subsumed as an absolute power of the Legislative, but must be read as a legislative procedure to amend the Constitution, which is under the scanner of Article 13. Although the creation of Schedule IX with the Constitution (First Amendment) Act, 1951, provides a supposed immunity to the statutes placed within the schedule from Judicial Review, any law within Schedule IX that disturbs the fundamental rights within Part III of the Indian Constitution will face the Doctrine of Eclipse and the Doctrine of Severability under Judicial Review.
The ultimate debate between Article 13 and Article 368 culminated into the case of Kesavananda Bharati Sripadagalvaru & Ors. v. The State of Kerala & Anr. (1973) SC 1461 where a thirteen-judge constitutional bench (Justice S. M. Sikri, Justice J. M. Shelat, Justice K. S. Hegde, Justice A. N. Grover, Justice A. N. ray, Justice P. J. Reddy, Justice D. G. Palekar, Justice H. R. Khanna, Justice K. K. Matthew, Justice M. H. Beg, Justice S. N. Dwivedi, Justice B. K. Mukerjea and Justice Y. V. Chandrachud) held with a 7:6 split decision that no provision of the Constitution of India, including Part III was immune from the amending authority of the Legislative under Article 368.
The bench postulated the Doctrine of Basic Structure, wherein the Judiciary must weigh the Basic Structure of the Indian Constitution on a case-by-case basis to quash any Legislative statute that emasculates the said Basic Structure, i.e. Basic Structure of the Constitution is safeguarded against any Legislative infringement.
The bench included an eight-lateral Basic Structure: a) Supremacy of the Constitution, b) Republican and Democratic Form of the Government, c) Secular Nature of the Constitution, d) The Provisions of Separation of Powers between the Judiciary, the Legislative and the Executive, e) Federal Nature of the Indian Constitution, f) The Spirit of Sovereignty, Unity and Integrity of India, and g) The Dignity and Freedom of the Citizen of India.
It is worth noting that the concept of Judicial Review and the reasonable balance between Fundamental Rights and Directive Principles of State Policy are included in the ambit of the Basic Structure. The spirit of Socialism and Social Justice was added to the Basic Structure in the case of S. R. Bommai v. The Union of India (1994) 3 SCC 1.
In the case of I. R. Coelho v. The State of Tamil Nadu & Ors. (2007) CA. 1344-45/ 1976, the court observed that the arbitrary insertion of statutes in Schedule IX of the Indian Constitution by means of an ill-defined mechanism nullified the whole/ part of Part III of the Constitution; this results in an unlimited power of the Legislative to nullify Part III of the Constitution without constitutional control.
The court gave a bilateral decision to the case:
- The Legislative statutes placed in Schedule IX before the judgement date of Kesavananda Bharati Sripadagalvaru & Ors. v. The State of Kerala & Anr. (1973) SC 1461 (April 24, 1973) will be upheld by the Supreme Court of India without challenging any part of the said statute.
- The Legislative statutes placed in Schedule IX after April 24, 1973, that violate the rights under Part III of the Constitution shall be scrutinized by the court of law since it violates the Basic Structure of the Constitution, wherein the court of law must determine if the extent of the invasion of the Basic Structure was justified, necessary, fair and reasonable.
- Judicial Review of Actions of Administrative Agencies:
The concept of Judicial Review of Administrative Actions has been borrowed from Britain where the Judicial Review aims at protecting its citizens against any dishonest and unreasonable abuse of power by an organ of the State, which may fail to abide by the rules of the law.
Although the Doctrine of Separation of Powers frowns upon the interference of the Judiciary in the discretionary administration matters, the court of law will intervene in the discretion of the Administrative Agencies on two cardinal grounds: a) Failure of the agency to exercise its discretion in accordance with the rule of law, and b) Abuse of discretion by the Administrative Agency.
In a nutshell, Judicial Review can be exercised by a competent court of law on any of the following grounds:
- Illegality: The decisions and actions of an Administrative Agency must not violate the existing rule of law, which regulates the functioning of the said agency.
- Irrationality: An administration action is irrational if it defies either logic or the accepted moral standards of the society, wherein no individual of sound mind can arrive at such a decision.
- Procedural Impropriety: Lord Diplock in the case of Council of Civil Service Unions v. Minister of the Civil Service (1984) 3 All ER 935, held that the procedure for taking an administrative action must be fair, reasonable and just.
- Proportionality: An administrative action must be proportional to the desired end of such an action; additionally, the Administrative Agency must establish that its decision is in proportion to the object/ purpose of the discretionary power conferred over the said agency.
- Unreasonableness: If the facts of a situation do not support the conclusive decision of the Administrative Agency, then the said decision is unreasonable since it is partial and unequal in its operation, wherein the Administrative Agency is said to have decided its actions in bad faith.
In the case of Ajay Hasia Etc. v. Khalid Mujib Sehravardi & Ors, (1981) 2 SCR 79, a five-judge constitutional bench (Justice Y. V. Chandrachud, Justice P. N. Bhagwati, Justice V. R. Krishnaiyer, Justice S. M. Fazalali and Justice A. D. Koshal) quashed the allocation of one-third of the total marks required to qualify the entrance examination of the Jammu & Kashmir Regional Engineering College, Srinagar, to a formal interview of two to three minutes, which included questions about the parentage and place of residence of the candidate, rather than academic-related questions. The bench added that the allocation of 33 per cent marks to an interview is arbitrary and unreasonable.
It is worth noting that the court of law is barred from examining the merits of the clemency powers of not only the President of India (Article 72 of the Indian Constitution) but also the Governor of a state (Article 161); however, the court of law may examine the material and relevant facts applied by the aforementioned individuals before taking its decision within the ambit of its clemency powers.
If the said material is found to be either extraneous and arbitrary or of mala fide intent, then the competent court of law is allowed to intervene using Judicial Review since the decision has been taken without sound application of mind to the relevant factors.
In a nutshell, the court of law is not an expert to question the merits of an administrative/ quasi-administrative decision due to the Doctrine of the Separation of Powers; however, the competent court of law can work within its ambit of Judicial Review to examine the arbitrariness, reasonableness, fairness and justification of the not only the administrative decision but also the relevant facts to the said decision.
- Judicial Review of Legislative Actions:
Articles 245 and 246 of the Indian Constitution provide Legislative powers to the Union Parliament (Article 246, Section 1) and the State Legislative Assembly (Article 246, Section 3) to make laws from the headings in List I of Schedule VII (Union List) and the List II of Schedule VII (State List) respectively in the whole/ any part of the territory of India and the territory of the state (Article 245, Section 1) respectively; additionally, the two legislative bodies are empowered to jointly make laws from the headings in List III of Schedule VII (Concurrent List) under Article 2646, Section 2 of the Indian Constitution.
A meticulous read of Article 246 of the Indian Constitution tells one that the Legislative statutes are limited by the provisions of the Constitution, wherein the competent court of law is empowered to check the adherence of the Legislative statute with the provisions of the Constitution. A Legislative statute must be neither arbitrary nor irrationally discriminatory, wherein it must have a reasonable nexus with the object it seeks to uphold without contravention of any constitutional provision.
A Legislative statute must be reasonable and fair, wherein the statute must not be in bad faith (mala fide); additionally, the competent court of law is entrusted with interfering with statutes that are prima facie mala fide.
In the case of R. K. Garg & Ors. v. The Union of India & Ors. (1981) 4 SCC 675, a five-judge constitutional bench (Justice Y. Chandrachud, Justice A. Gupta, justice A. Sen, Justice P. Bhagwati and Justice S. M. Ali) pulled the Legislative statutes on economic matters (ex: Special Bearer Bonds (Immunities and Exemptions) Act, 1981, etcetera) from the purview of strict Judicial Review since the bench believed that legislation on economic matters is based on experimental trial and error, wherein it may imprudent to not only anticipate all possibilities of abuse and distortions of the legislation by those subject to the statute but also place the said legislation in the conformity of Judicial Review.
The bench added that the legislation on economic matters must be adjudicated by the court of law without thinking about any possibilities of the aforementioned abuse, rather the constitutional validity of such legislation must be done by scrutinizing the generality of the provisions of the said statute.
The establishment of the High Courts of Judicature in the presidencies of Calcutta, Bombay and Madras in 1862 with the usurpation of the powers of original jurisdiction (from the preceding Supreme Courts of Judicature) and appellate jurisdiction (from the preceding Sadr Diwani/ Nizamat Adalats) led to the creation of India’s first uniform legal system where the Judiciary was empowered to check the actions of the other organs of the British government in India.
The term ‘Judicial Review; was indirectly coined in the case of Marbury v. Madison (1803) 5 U. S. 137, where Chief Justice John Marshall indirectly defined Judicial Review as an authoritative power of the Judiciary to check the adherence of the Legislative statutes of the State with the provisions of the supreme law of the land, the Constitution.
Although the ambit of Judicial Review entered pre-independence India with the Government of India Act, 1935, where the newly established Federal Court was entrusted with not only adjudicating the disputes between the Union and the Provinces but also checking the adherence of their statutes with the incumbent laws, the concept of Judicial Review was institutionalized under Article 13 of the Indian Constitution in post-Independence India.
Judicial Review exists in three forms in India: a) Judicial Review of Constitutional Amendments, b) Judicial Review of the Administrative Agencies, and c) Judicial Review of Legislative Actions, wherein the core belief of Judicial Review stands on the principle of the absolute supremacy of the Basic Structure of the Indian Constitution, such that the Legislative and the Executive is barred from acting in any way that either harms the said Basic Structure or construes as arbitrary, unreasonable, unjust, unfair and unjustified to not only the rule of the law but also the accepted moral standards of the nation.
It is worth mentioning that the several judicial interpretations have expanded the scope of Judicial Review to every organ of the Democratic society, wherein no Legislative statute (including the statutes in Schedule IX) and Executive action is immune from the scrutiny of Judicial Review by the Supreme Court of India (Article 32) and the High Courts of the state (Article 226) as long as the question of violation of the Basic Structure is asked in reference to the said statute and action.
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