Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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SYNOPSIS

This article is a reflexive piece that would be dealing with judicial review. The article deals with a judicial review from its origin to its usage and application in the current scenario. Major judicial verdicts whereby the power of judicial review is exercised by courts are also discussed in brief.

INTRODUCTION

The doctrine of judicial review originated and developed in the US. It was propounded for the first time in the landmark case of Marbury v. Madison in the year 1803 by John Marshall, the then chief justice of the American Supreme Court. In India, the Supreme Court of India as well as High Courts have the power of judicial review.

THE POWER OF JUDICIAL REVIEW

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts, and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the basic structure of the Constitution. The power of judicial review is enshrined in the Constitution and the Constitution can be amended by the legislature, so technically the power of judicial review can also be amended or taken away. However, it is not the case since the Supreme Court has categorically identified and declared the power of judicial review as a part of the basic structure of the Constitution which can not be amended in any circumstance. Therefore, the High Courts and the Supreme Court can also judicially review Constitutional amendments.

RELEVANT LEGAL PROVISIONS

Related articles for the judicial review for Supreme court are Article 32(Right to Constitutional Remedy) and Article 136(Special leave to appeal by the Supreme Court), for High Court, the relevant Articles are Article 226(Power of High Courts to issue certain writs.) and Article 227(Power of superintendence over all courts by the High Court) of the Indian Constitution.

Article 32: Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

Article 136: Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces

Article 226: Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories about which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs like habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction about the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterward on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32

Article 227: Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction

(2) Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries, and accounts shall be kept by the officers of any such courts

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and attorneys, advocates, and pleaders practicing therein: Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces

Apart from these, Article 13 of the Constitution provides for nullity of laws inconsistent with Fundamental Rights.

Article 13: 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

GROUNDS OF JUDICIAL REVIEW

There are three main grounds of judicial review: illegality, procedural unfairness, and irrationality.  

A decision can be overturned on the ground of illegality if the decision-maker did not have the legal power to make that decision, for instance, because Parliament gave them less discretion than they thought.

A decision can be overturned on the ground of procedural unfairness if the process leading up to the decision was improper. This might, for instance, be because a decision-maker who is supposed to be impartial was biased. Or it might be because a decision-maker who is supposed to give someone the chance to make representations before deciding on their case failed to do so.

A decision can be overturned on the ground of irrationality if it is so unreasonable that no reasonable person, acting reasonably, could have made it. This is a very high bar to get over, and it is rare for the courts to grant judicial review on this basis.  

Besides, a decision can be overturned if a public authority has acted in a way which is incompatible with human rights that are given effect by the Human Rights Act 1998. There is one exception to this, though: if the public authority is merely doing what parliament told it to do, then it is not acting unlawfully even if it does act incompatibly with one of those rights. A judge cannot quash or declare unlawful a government decision merely on the basis that the judge would have made a different decision, or that the decision was wrong.  

CLASSIFICATION OF JUDICIAL REVIEW

Justice Syed Shah Mohamed Quadri has classified judicial review into three categories:

  1. Judicial review of constitutional amendments;
  2. Judicial review of legislation of the parliament and the State legislatures and subordinate legislation;
  3. Judicial review of administrative action or executive action of the Union and the State and Authorities under the State.

We can classify judicial review into three major categories:

1. Review of legislative actions:

This review implies the power to ensure that laws passed by the legislative compliance with the provisions of the constitution.

2. Review of Administrative Actions:

This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.

3. Review of judicial decisions:

This is seen in the Golakhnath case, Bank Nationalisation case, Minerva Mills case, Privy Purse abolition case, etcetera.

LANDMARK CASES IN WHICH THE COURT EXERCISED THE POWER OF JUDICIAL REVIEW

1. Golaknath case 1967

Facts- The family of Henry and William Golak Nath held over 500 acres of farmland in Jalandhar. In the phase of the 1953 Punjab Security and Land Tenures Act, the state government held that the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared 'surplus'. This was challenged in SC.

Held- The power to amend Fundamental Rights rests with the constituent assembly and the Parliament cannot amend the same beyond a certain limit. The right to property back then was a Fundamental Right.

2. Bank Nationalisation case 1970

Facts- Mr. Cooper, who was not only the then Director of the Central Bank of India Ltd. but also held shares in Central Bank of India, Bank of Baroda Ltd. and Bank of India Ltd., filed a Writ Petition under Article 32 stating that his Fundamental Rights had been violated by the promulgation of the Ordinance for the nationalization of 14 major banks.

Held- If any Act of the Legislature, even at a remote stage, violated the Fundamental Rights of the citizens, then, it was liable to be struck down.

3. Privy Purse Abolition case 1971

Facts- The instruments of a merger with the Dominion if India during independence provided for the integration of the States and guaranteed to the Rulers the Privy Purse, succession according to law and custom to the gaddi of the State, and personal rights, privileges, dignities, and titles. The President promulgated an order abolishing privy purse. Certain rulers challenged the order of the President “derecognizing” them as unconstitutional, ultra vires, and void.

Held- The Court declared the Order of the President regarding the abolition of the privy purse as unconstitutional and ultra vires and therefore inoperative.

4. Kesavananda Bharti case 1973

Facts- Kesavananda Bharti challenged the Kerala government's attempts, under two land reform Acts, to impose restrictions on the management of its property. He filed a petition under Article 26, concerning the right to manage religiously owned property without government interference.

Held- The laws and rules which violate the basic structure of the Indian Constitution may be declared null and void by the judiciary i.e. the Supreme Court or the High Courts.

5. Minerva Mills case 1980

Facts- The gravamens of the challenge in Minerva Mills, were Sections 4 and 55 of the 42nd Amendment Act, 1976. Minerva Mills was a textile company which had been nationalized and taken over by the Government on account of being grossly mismanaged. The petitioners had also challenged the constitutional validity of the Sick Textile Undertakings (Nationalisation) Act, 1974.

Held- The power of the parliament to amend the constitution is limited by the constitution. Hence the parliament cannot exercise this limited power to grant itself unlimited power. It is the function of the judges, may their duty to pronounce upon the validity of laws.

6.  In 2015, the SC declared the 99th Conditional Amendment Act also known as the NGAC Act unconstitutional and thereby null and void since the executive was given more power in the appointment of judges in Supreme Court and High Courts in comparison to the judiciary.

IMPORTANCE OF JUDICIAL REVIEW

1. To uphold the principle of the supremacy of the Indian Constitution

In India, it is the constitution that is supreme and that a statute law to be valid must conform with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not. The constitution is supreme lex, the permanent law of the land, and there is no branch of government above it. Every organ of government, be it the executive or the legislature of the Judiciary, derives its authority from the constitution and it has to act within the limits of its authority.

2. To maintain federal equilibrium (balance between the center and the states)

The founding fathers very wisely, therefore. Incorporated in the constitution itself the provisions of judicial review to maintain the balance of federalism, to protect the fundamental rights and fundamental freedoms guaranteed to the citizens, and to afford a useful weapon for availability, availment, and enjoyment of equity, liberty, and fundamental freedom and to help to create a healthy nationalism.

3. To protect the Fundamental Rights of citizens

As long as fundamental rights exist and are a part of the constitution, the power of judicial review has also to be exercised to see that the guarantees by these rights are not contravened. It is the function of the judges, may their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled.

STATEMENTS BY JUSTICES concerning POWER OF JUDICIAL REVIEW

1.Chief justice Kaniya in the case of A. k. Gopalan v. State of Madras, 1950 said, in India, it is the Constitution which is supreme, and for a statute law to be valid, it must conform with the Constitutional requirements. And it is upon the judiciary to decide what is in conformity and what is not.

2. Chief justice Patanjali Shastri in the case of State of Madras v. V. G. Row, 1952 said that our Constitution contains an express provision for judicial review of legislation as to its conformity with the Constitution. This is especially true as regards the Fundamental Rights to which the court has been assigned the role of a guard.

3.  Justice Khanna said in the case of Kesavananda Bharti in 1973 that as long as she Fundamental Rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with the view to see that the guarantees afforded by the rights are not contravened.

4. Chief Justice DY Chandrachud has said in the case of Minerva Mills that if courts are totally deprived of their power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. The controlled Constitution will then become uncontrolled and lead to dictatorial and totalitarian establishments.

5. Justice P. N. Bhagwati has said in the case of Rajasthan v. Union of India, that the Constitution is the supreme lex, the permanent law of the land, and there is no branch of government above it.

CONCLUSION

Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The power of judicial review has to be exercised by the courts with great caution as to not unnecessarily interfere and encroach upon the powers of the legislatures and parliament.


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