Judicial

This article has been written by Neha Parveen pursuing a Bank Law Officer Exam – Preparation Course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

The Constitution of India establishes an independent judiciary to uphold the rights of the citizens and to act as a guardian of the Constitution. It is one of the most important functions of the judiciary to ensure that the laws passed by the legislature and the actions of the executive align with the provisions of the Constitution. This process is known as judicial review.

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The power of judicial review over legislative and executive action has been held to be an integral feature, constituting part of the basic structure of the Constitution. It is said to be the duty of the court to test the laws of the land on the touchstone of the Constitution and to provide appropriate remedies if and when called upon to do so. However, invalidating an act of the legislature is a grave step and should never be taken lightly.

Judicial review: meaning

Judicial review means the power of the judiciary to review the constitutional validity of the acts of the government, i.e., the legislature or executive, and to declare whether they are void or not according to the Constitution of a country, which is the Supreme Law of the Land.

According to the Black’s Law Dictionary, “judicial review” means “the court’s power to review the actions of other branches of the government, especially the court’s power to invalidate legislative and executive actions as being unconstitutional.”

The principle of judicial review originated in the case of Marbury v. Madison, in which it was held that the American courts have the power to strike down the actions of or laws made by the government if they do not adhere to the provisions of the American Constitution. Chief Justice Marshall noted that while the American Constitution does not contain a specific clause about judicial review, the power of judicial review is implied in the US Constitution, as it states that the Constitution is the supreme law of the land and all laws must be made according to the provisions of the Constitution.

The power of a court to declare any law, order, or action of the government that is inconsistent or in conflict with the basic law of the land as unconstitutional and unenforceable is a great tool in the hands of the judges. The underlying object of judicial review is to ensure that the legislative or executive authority does not abuse their powers and that the citizens receive just and fair treatment, rather than ensuring that the authority comes to a conclusion that is correct in the eyes of the law.

The Apex Court in Government of Andhra Pradesh vs. P.L. Devi (2008), observed that since the power of invalidating a statute prevents the full play of the democratic process and that “invalidation of a statute made by the Legislature elected by the people is a grave step,” it should be exercised with rigorous self-restraint. That is, if two results are possible, one making the statute constitutionally valid and the other making it invalid, the former view must be preferred.

Constitutional provisions for judicial review

The Supreme Court and the High Courts enjoy a special power to review the acts of the Legislature and the Executive. This power of judicial review has been provided under different provisions of the Constitution of India. These are discussed below:

Article 13 provides for the judicial review of the laws, whether past or future. It is considered a charter for judicial review. It states that the court can declare the law unconstitutional if it is inconsistent with or violates the fundamental rights given under Part 3 of the Constitution.

Article 32 provides the right to move to the Supreme Court for the enforcement of fundamental rights. Under this Article, the Supreme Court has been provided with the power to declare any law or order passed by the government as unconstitutional if it violates the fundamental rights of the people. It is considered the cornerstone of the Constitution; without it, it would be a nullity.

Article 131 provides for the exclusive original jurisdiction of the Supreme Court in matters related to conflicts between Centre-State and between two or more states.

Article 132 provides for the appellate jurisdiction of the Supreme Court over the decisions of the High Courts if they involve any substantial question of law involving constitutional interpretation.

Article 133 provides for the appellate jurisdiction of the Supreme Court over the decisions of the high courts in civil cases involving substantial questions of law of general importance.

Article 134 provides for the appellate jurisdiction of the Supreme Court from the decision of the High Court in criminal cases.

Article 134A provides that the High Court shall grant a certificate for appeal to the Supreme Court.

Article 135 empowers the Supreme Court to exercise the jurisdiction and powers of the federal court under any pre-constitution law.

Article 136 confers discretion on the Supreme Court to grant special leave to appeal before itself from the decision of any court or tribunal in any cause or matter.

Article 226 confers a similar power of judicial review upon the High Courts but the writ jurisdiction provided to the High Courts is wider, as the High Courts can issue writs not only against the state and the statutory authority but against any person or body performing a public duty.

Article 245 deals with the territorial jurisdiction of the Parliament and the State Legislature.

Article 246 provides for the subject matter upon which laws can be made by Parliament and by the state legislatures.

Articles 251 and 254 state that in cases of dispute between the laws made by the state legislature and the laws passed by the parliament, the central law shall prevail and the state law shall be considered void in such cases.

Article 372 provides that the pre-constitutional laws shall remain in force in India until they align with the provisions of the Constitution.

Limitations of judicial review

The power of judicial review provided to the judiciary is not absolute. It has certain limitations as well. These are discussed in detail below:

General limitations

Limited to procedural review

The primary focus of judicial review is to ensure that the procedure followed in making a decision is legal and constitutionally sound. However, courts generally do not assess the merits or effectiveness of the decision itself, which prevents them from substituting their judgment for that of the government on policy matters. This is because the judiciary lacks expertise in formulating policies and cannot substitute itself for the policymaking bodies. Therefore, despite having the ability to declare certain policies unconstitutional if they violate any fundamental rights, the judiciary cannot assess the efficacy or desirability of those policies. As Lord Brightman observed in Chief Constable of the North Wales Police vs. Evans, (1982), “Judicial review is concerned not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court, under the guise of preventing the abuse of power, will be itself guilty of usurping power.”

Designated only to the Supreme Court and the high courts

The power to declare any law, ordinance, order, bye-law, rule, regulation, notification, custom, or usage, that does not align with Part 3 of the Constitution of India, has been designated only to the Supreme Court of India and the High Courts of different States.

Article 246 of the Constitution of India, in conjunction with the 7th schedule, outlines a distinct boundary and intersection point between the Union Parliament’s and the various state legislatures’ legislative powers.

Consequently, only higher courts have the authority to decide cases related to legislative competence, especially matters concerned with the Center-State relations. Therefore, in India, the subordinate courts lack the authority to use the judicial review power.

Can reduce the faith of people in government

Judicial review plays a significant role by acting as a defence against the ‘tyranny of the majority’. It upholds the Constitution by protecting the rights of the people. However, repeated use of judicial review may weaken the trust of the public in the government’s efficacy, capability, and morality. Many times, the protection of the individual rights of the people involves conflicts with the legislature and the executive, which may result in diminishing the faith of the people in these organs of the government. However, a good strategy is needed to tackle this contradiction, striking a balance between upholding the public’s confidence in the government’s capacity to protect their rights and acting effectively and efficiently.

Fail to comply with the principle of separation of power

Whenever judicial review invalidates any law that is in force, it oversteps the limits provided under the Constitution on the use of power. In lieu of the principle of separation of powers, the principle of separation of functions is followed in India. ‘Separation of functions’ denotes that all three branches of the government perform their own roles while cooperating with each other. In India, the concept of checks and balances is followed instead of a strict division of powers. It is to prevent any one branch of the government from becoming overly dominant. Judicial review is also based on the concept of checks and balances, as it allows the judiciary to review the acts of the legislature and the executive and declare them void if found unconstitutional.

In the landmark case of P. Ramachandra Rao vs. State of Karnataka (2002), the Supreme Court of India made a significant pronouncement regarding the separation of powers between the judiciary and the legislature. The Court emphasised that while the judiciary plays a crucial role in interpreting laws and addressing legal issues, it must refrain from encroaching upon the legislative domain, which is primarily the responsibility of elected representatives.

The Court’s observation in this case highlights the delicate balance between the powers of the judiciary and the legislature in a democratic society. The judiciary is tasked with upholding the Constitution and ensuring that laws are applied fairly and impartially. However, the Court recognises that it should not overstep its boundaries and interfere with the legislative process, which is the function of the legislature.

The Court’s statement, “Court can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps, but they cannot entrench upon in the field of legislation, properly meant for the legislature,” encapsulates this principle. The Court acknowledges that it has the authority to interpret laws, clarify ambiguities, and address gaps in legislation. However, it emphasises that it cannot create new laws or usurp the legislative function.

This distinction is essential to maintaining the separation of powers and preventing the judiciary from becoming a law-making body. The legislature, through its elected representatives, is directly accountable to the people and has the mandate to enact laws that reflect the needs and aspirations of society. The judiciary, on the other hand, is responsible for interpreting and applying those laws in a fair and impartial manner.

The Court’s observation in P. Ramachandra Rao vs. State of Karnataka serves as a reminder that the judiciary must exercise restraint and respect the boundaries between different branches of government. By adhering to this principle, the judiciary can maintain its integrity and ensure that the legislative process remains responsive to the will of the people.

Judicial activism versus judicial self restraint

Judicial activism and judicial restraint are two opposite concepts that guide judges in performing their functions and duties. Activist judges, motivated by social progress, may depart from tradition to address public grievances and promote new policies, even overruling existing laws. On the other hand, judges in favour of judicial restraint are of the opinion that the judiciary shall not interfere in the policies of the government; rather, the judges should be encouraged to interpret and uphold the existing laws instead of remaking a new policy itself. In judicial activism, the judges are encouraged to use their power to rectify any injustice or unfairness, especially when the other branches of the government are not acting within the limits of the constitution. Whereas judicial restraint limits the power of the judges to strike down an existing law. This highlights the ongoing debate about the appropriate balance between judicial power and its potential for overreach.

Doctrine of strict necessity

According to the doctrine of “strict necessity,”  judges shouldn’t decide on the issue of constitutionality unless it is completely necessary. Therefore, for deciding any question on constitutionality, strict or unavoidable necessity is required. Judges should act cautiously while addressing constitutional questions and they must limit their decision-making power to the facts of the respective case only. Thus, questions involving constitutionality are only addressed when any law violates any fundamental rights of an individual and there is a substantial reason to do so.

The Court is restricted from using its power of judicial review by the doctrine of “strict necessity.” It states that a law can only be declared unconstitutional when there is no remedy available or it is unredeemable.

In the landmark case of Sunil Kumar Shabukumar Gupta (Dr.) vs. State of Maharashtra (2010), the Indian Supreme Court laid down a fundamental principle of constitutional interpretation. The Court held that when interpreting a statute, if two possible interpretations are available, one that renders the statute constitutional and the other that renders it unconstitutional, the former interpretation must always be preferred.

This principle is based on the fundamental assumption that the legislature intends to enact laws that are consistent with the Constitution. As such, when faced with a statute that could potentially be interpreted in a way that violates constitutional principles, courts should strive to find an interpretation that upholds the constitutionality of the statute.

The rationale behind this principle is twofold. Firstly, it ensures that the legislature’s intent is respected and upheld. By presuming that the legislature intended to enact a constitutional law, courts give effect to the legislature’s purpose and avoid the unintended consequences of declaring a statute unconstitutional.

Secondly, this principle promotes judicial restraint and deference to the legislative branch. By refraining from striking down a statute as unconstitutional unless there is no other viable interpretation, courts acknowledge that the legislature is primarily responsible for making laws and that judicial review is a limited power that should be exercised only when necessary.

The principle established in Sunil Kumar Shabukumar Gupta (Dr.) vs. State of Maharashtra (2010) has been consistently applied by Indian courts in subsequent cases. It has played a crucial role in upholding the constitutionality of numerous statutes and has helped to maintain a balance between the legislative and judicial branches of government.

Central laws can not be challenged by the states

The laws made by the central government may be challenged for their constitutional validity by any individual whose rights have been infringed, but they cannot be challenged for their validity by the state government. The Hon’ble Supreme Court observed that “challenging the validity of a central law by the state government would be against the federal structure woven under the Constitution.”

Implied limitations

Locus standi

In the Indian legal system, the traditional concept of “locus standi” limited access to being able to challenge government acts. In other words, only a person who was directly affected could file a writ under Article 32 of the Constitution. This, however, was overcome by the novel concept of Public Interest Litigation (PIL). PIL allows anyone to file a petition on the ground of public interest, which theoretically means that even if someone has not been personally injured by a government act, if the scope of the act can harm a large group of people, the law cannot impose locus standi to shield “patently bad” decisions from being challenged in a court of law. This, in turn, strengthens the role of the judiciary in protecting the fundamental rights of the people.

Res judicata

The principle of Res Judicata states that the ruling of the courts, having appropriate jurisdiction, should be final and the parties to the dispute should not be vexed twice for the same matter. It is a civil law principle found in Section 11 of the Code of Civil Procedure, 1908.

It has been held in many cases by the Supreme Court of India that the principle of res judicata applies to writ petitions filed under Article 32. The rule of Res Judicata is not a technical rule of procedure; it is based on the principle of public policy.

In Direct Recruit Class II Eng. Officers Association vs. State of Maharashtra (1990), it has been held that “the binding character of judgements of courts of competent jurisdiction is an essential part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgement of the High Court under Article 226 passed after a hearing on the merits of the case must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be evaded by a petition under Article 32”.

But an exception to the rule of Res Judicata has been accepted in the case of Gulam

In the landmark case of Sarwar vs. Union of India (1967), the Supreme Court of India addressed the important issue of the interplay between the High Court’s order and the fundamental right to move the Supreme Court under Article 32 of the Indian Constitution. The Court’s decision in this case has had significant implications for the interpretation of res judicata and the protection of fundamental rights in India.

The facts of the case involved a petitioner, Mr. Sarwar, who had filed a petition in the High Court challenging the validity of a government order. The High Court dismissed Mr. Sarwar’s petition, and he subsequently filed a petition under Article 32 of the Constitution directly to the Supreme Court. The government argued that the High Court’s order operated as res judicata, meaning that the matter had already been decided and could not be relitigated.

However, the Supreme Court disagreed with the government’s contention. In its judgment, the Court held that the High Court’s order did not operate as res judicata because the petitioner’s fundamental right to move the Supreme Court under Article 32 could not be barred by the High Court’s order. The Court emphasised that Article 32 provides a direct and unfettered access to the Supreme Court for the enforcement of fundamental rights, and it cannot be curtailed or restricted by any other court’s order.

The Court further clarified that the doctrine of res judicata, which prevents the relitigation of matters that have already been decided, does not apply to proceedings under Article 32. This is because Article 32 is a constitutional provision that guarantees the fundamental right to approach the Supreme Court for the enforcement of fundamental rights, and it cannot be overridden by any other law or rule.

The Court’s decision in Sarwar vs. Union of India has been cited in numerous subsequent cases and has become a foundational precedent for the interpretation of res judicata and the protection of fundamental rights in India. It has ensured that individuals can directly approach the Supreme Court under Article 32 without being bound by adverse orders from lower courts, thus strengthening the constitutional safeguards for fundamental rights in India.

Unreasonable delay or laches

One of the keystones of the administration of justice is that people who are aware of their rights and do not take them for granted will receive assistance from the courts. Laches or inordinate delay by the petitioner may disentitle him from filing a writ petition under Article 32 to get a remedy for the violation of his fundamental rights.

The general rule is that the court should not examine stale cases and that it should help the vigilant and the indolent. However, it is a rule of judicial prudence and has to be applied with caution.

In the landmark case of K. Prasad vs. Union of India (1988), the Supreme Court of India established a significant principle regarding the consideration of delay in legal proceedings. The court held that while delay can be a factor in determining whether to entertain a petition, it is not an absolute rule that automatically disqualifies a petition from being heard.

The court recognised that there may be various reasons for delay, and each case must be evaluated based on its unique facts and circumstances. The court emphasised that a rigid approach to dismissing petitions solely due to delay would undermine the principles of justice and equity.

The ruling in K. Prasad vs. Union of India highlighted the importance of judicial discretion in assessing the impact of delay on a petition. The court stated that it is a “rule of practice based on sound and proper exercise of discretion.” This means that judges have the responsibility to carefully consider all relevant factors, including the reasons for the delay, the nature of the case, and the potential consequences of denying the petition.

The court’s decision in K. Prasad vs. Union of India has had a significant impact on subsequent cases involving delay. It has established a balanced approach that recognizes the need for both fairness and efficiency in the judicial process.

In practice, courts often consider various factors when assessing the impact of delay. These factors may include:

  1. The length of the delay: Courts may consider the duration of the delay and whether it was reasonable or excessive.
  2. The reasons for the delay: Courts may inquire into the circumstances surrounding the delay to determine if it was caused by factors beyond the petitioner’s control.
  3. The prejudice caused by the delay: Courts may evaluate whether the delay has resulted in substantial harm or prejudice to the opposing party or to the overall administration of justice.
  4. The merits of the petition: Courts may consider the strength of the petitioner’s case and whether there are compelling reasons for granting the petition despite the delay.

By taking a holistic approach to delay, courts can ensure that justice is served in a fair and equitable manner, balancing the interests of all parties involved.

Exhaustion of alternative remedies

In the case of K.K. Kochuni vs. State of Madras, the Supreme Court ruled that while the availability of a sufficient legal remedy should be taken into account while granting prerogative writs, this was not a conclusive reason to deny a writ under Article 32, as the Supreme Court’s powers under this Article are way broader and did not limit its authority to prerogative writ matters exclusively. Therefore, the availability of an alternative remedy does not serve as justification for rejecting a remedy request made under Article 32. However, the Supreme Court typically maintains that the alternative remedy be sought unless the petitioner finds it to be ineffective or the circumstances are really serious.

The Apex Court, in Avinash Chand Gupta vs. State of U.P. (2004), dismissed a writ petition filed under Article 32 of the Constitution of India. The petitioners sought a direction against the demolition of an unauthorised construction by the state. The Court held that the petitioners had an efficacious remedy available under Article 226 of the Constitution, which provides for the issuance of writs by the High Courts to enforce fundamental rights and other legal rights.

The Court noted that the petitioners had not exhausted their alternative remedies before approaching the Supreme Court under Article 32. They had not filed a writ petition in the High Court under Article 226, which was the appropriate forum for challenging the demolition of the unauthorised construction. The Court also observed that the petitioners had not shown that they would suffer irreparable injury if the demolition was not stayed.

The Court’s decision in Avinash Chand Gupta vs. State of U.P. (2004) is significant because it reiterates the principle that the Supreme Court should not entertain writ petitions under Article 32 when an efficacious alternative remedy is available to the petitioners. This principle helps to prevent the Supreme Court from being overburdened with cases that could be more appropriately handled by the High Courts.

Additionally, the Court’s decision highlights the importance of exhausting all available remedies before approaching the Supreme Court. This requirement ensures that the Supreme Court is only called upon to adjudicate on matters of national importance or where there is a compelling reason to bypass the lower courts.

Constitutional limitations

Immunities and privileges for the President, governors, and judges of high courts and Supreme Court

The President, Governors, and Judges of the Supreme Court and High Courts have been provided with certain immunities and privileges by the Constitution of India. Unless they have acted in their individual capacity, the courts cannot inquire into the acts of these individuals. The president’s and the governor’s immunity extends to official acts performed within the scope of their duties, which is essential to preserving the independence of the executive branch. Judges have been granted absolute immunity while performing judicial tasks from the very beginning so that it could not limit their efficacies while performing their duties, but the extent of this immunity is not explicitly provided in the Indian Constitution.

Article 361 of the Indian Constitution provides for immunities for the President and the governors of the States. According to this, they are not answerable to any court for the actions taken in the exercise of their powers and duties.

Also, Article 72 of the Indian Constitution provides the President of India with the pardoning power, in which the President can grant pardons and “suspend, remit or commute” sentences in certain cases. Similarly, Article 161 of the Indian Constitution enumerates the pardoning power of the governor of the states.

Hence, the court cannot review the merits of the decision of these dignitaries other than in instances of malice aforethought, arbitrariness, or ignorance of some important information.

Emergency rules

As per Article 358 of the Indian Constitution, when a national emergency is declared, the six fundamental rights guaranteed under Article 19 are automatically suspended.

Article 19 of the Indian Constitution provides six fundamental rights to citizens:

  1. The right to freedom of speech and expression.
  2. The right to assemble peacefully and without arms.
  3. The right to form associations and unions.
  4. The right to move freely throughout the territory of India.
  5. The right to reside and settle in any part of India.
  6. The right to practice any profession, or to carry on any occupation, trade, or business.

These fundamental rights are essential for a democratic society, as they allow citizens to express themselves freely, participate in political and social activities, and pursue their chosen careers.

However, during a national emergency, the government may need to take extraordinary measures to protect the security of the nation. This may include suspending certain fundamental rights, such as the right to freedom of speech and assembly.

The suspension of fundamental rights during a national emergency is not absolute. The government can only suspend those rights that are necessary to protect the security of the nation. Additionally, the suspension of fundamental rights must be proportionate to the threat that the nation faces.

Once the national emergency ends, Article 19 is automatically restored. This means that the six fundamental rights guaranteed by Article 19 are once again fully enforceable.

The suspension of fundamental rights during a national emergency is a necessary evil. It allows the government to take the necessary steps to protect the security of the nation. However, it is important to ensure that the suspension of fundamental rights is only temporary and that it does not become a permanent feature of Indian democracy.

According to Article 359, in the event of a national emergency, the President may suspend, by order, the ability to file a petition in any court to enforce the fundamental rights.

The declaration of a national emergency was exempt from judicial review under the 38th Amendment Act of 1975. However, the 44th Amendment Act of 1978 later repealed this provision. 

In the landmark case of Minerva Mills vs. Union of India, the Supreme Court of India ruled that the judicial review of the legality of the President’s proclamation of emergency under Article 352(1) of the Indian Constitution remains unaffected. This means that the courts have the authority to examine and assess the validity of the President’s actions when imposing an emergency.

The court’s role in this context is limited to determining whether the restrictions imposed by the Constitution have been adhered to. This includes scrutinising the President’s satisfaction, which is a crucial factor in the decision-making process for an emergency proclamation.

The court emphasised that the President’s satisfaction must be genuine and based on relevant and honest grounds. If the satisfaction is found to be malafide, irrelevant, or dishonest, it will be deemed invalid, and the emergency proclamation may be subject to judicial intervention.

This judicial review serves as an important check and balance on the executive’s power to impose an emergency. It ensures that the President’s actions are in accordance with the constitutional framework and that individual rights and freedoms are not arbitrarily curtailed.

The Minerva Mills case established a precedent for judicial oversight of emergency proclamations in India. It affirmed the judiciary’s role as an impartial arbiter, upholding the rule of law and safeguarding the fundamental rights of citizens in exceptional circumstances.

Since the Minerva Mills case, there have been several other instances where the courts have exercised their power of judicial review in emergency-related matters. These cases have further clarified the scope and limitations of the President’s emergency powers and the judiciary’s role in ensuring that these powers are not misused or abused.

Conclusion

In India, a system of checks and balances has been woven into the Constitution in such a way that the judiciary has been empowered to keep an eye on the acts of the legislature and the executive and to ensure that they are working in accordance with the provisions of the Constitution. Judicial review empowers the courts to declare any act of the government null and void if it is not in consonance with the provisions of the Constitution. However, there are certain limitations on the exercise of this power by the courts. The judiciary cannot interfere in the matters and policies of the government. Hence, the role of the judiciary is only to ascertain whether the procedure followed in reaching the decision is constitutionally valid or not. It does not have the authority to re-make the decision being challenged or to inquire into the merits of that decision by the government.

References

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