This article is written by M.S.Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) from School of law, SASTRA. This is an exhaustive article which deals with the various salient features of the Indian Constitution.
The Constitution of India is a very dynamic creation of our lawmakers. The Constitution of India as we all know is a supreme law of the country and every citizen of our country has to abide by the constitution.
The Lengthiest Constitution of the World
The Indian Constitution is one of the lengthiest constitutions in the world and it is also very detailed. There are 12 schedules and 448 articles in our Constitution. The Indian Constitution has incorporated various articles by taking inspiration from the various constitutions around the world. As we all know, India is a very diverse country and it was necessary to draft a long Constitution incorporating various provisions in order to accommodate various differences. The parent document for drafting the Indian Constitution was the Government of India Act 1935, and that document itself was very lengthy. The Constitution makers found it necessary to incorporate various provisions to provide special attention to States like Assam, Mizoram, and Nagaland. Various provisions were also incorporated to uplift the Scheduled Castes and Scheduled Tribes.
Establishment of a Sovereign, Socialist, Secular, Democratic Republic
The Preamble of our Constitution provides India to be a Sovereign, Socialist, Secular, Democratic and Republic Country. There are also various other terms in the Preamble which ensure equality and protect people. The various other terms are Justice, Liberty, Equality, and Fraternity.
The term Sovereignty was incorporated in the Preamble to provide supreme power to the Government. The term Sovereignty is the backbone of our Indian Constitution that protects the authority of the people. Sovereignty is an essential factor of every State. The term “sovereignty” as applied to states implies ‘Supreme, absolute, and uncontrollable power by which any state is governed, and which resides within itself, whether residing in a single individual or a number of individuals, or in the whole body of the people’. The Sovereignty in India is of two types:
- Internal Sovereignty- The States have the power to govern themselves and make laws in certain matters.
- External Sovereignty- The Government is the supreme authority and can acquire or cede any part of the territory for proper reasons.
It is mandatory to incorporate this term to promote peace between various communities in our country. Secularism promotes the development and unity of various religions. The term “Secular” was added by the 42nd amendment in the Preamble. In the case of S.R Bommai v Union Of India, it was held that “in matters of State, religion has no place” and also said that secularism is one of the basic features of the Constitution. In the famous case of Indira Nehru Gandhi vs Shri Raj Narain & Anr, held that the State shall not discriminate against any citizen on the grounds of religion.
Democracy is an ancient concept that is followed by many south Indian rulers from time immemorial. Democracy provides people with the power to govern. The representative form of the Government is suitable for governing our country due to the huge population. In the case of Mohan Lal Tripathi vs District Magistrate, the meaning of the term “Democracy” was discussed and according to the case it was held that “Democracy is a concept, a political philosophy an ideal which is practised by many nations that is culturally advanced and politically mature via resorting to governance by representatives of the people elected directly or indirectly”. The main reason for incorporating democracy is to provide freedom to the people to choose their own representatives and to save them from the tyrant leaders.
The system of socialism promotes equality among people and ensures the welfare of people. The term “Socialist” was incorporated by the 42nd amendment. The term Socialist was discussed in the case of Samantha v State of Andhra Pradesh, and according to the case,” the term socialist is used to lessen the inequalities in income and status and to provide equality of opportunity and facilities”. Many leaders were interested in the concept of socialism, especially Jawaharlal Nehru was very much interested in this concept as he was inspired by the Russian Revolution. There were also other famous leaders like Jay Prakash Narayan who helped in the development of this concept. The concept of Socialism expels capitalism which is considered a threat to the economy. There were developments in economic policies to promote the concepts of Socialism.
The concept of “Republic” was borrowed from the Constitution of France. The term republic provides the people power to elect their own representatives. The term republic is the basis of our constitution as it ensures there would be no hereditary rulers and also ensures that the election would be happening in our country. The President of India is an elected head of the State for a fixed tenure.
The Preamble of the Constitution of India guarantees three types of justice to its citizens like:
- Social Justice- The concept of social justice promotes equal treatment of citizens and promotes the rule of law. This term ensures that there would be no discrimination among the citizens on different grounds. The fundamental rights also provided in Part 3 of our Constitution also ensures social justice.
- Economic Justice- The concept of economic justice avoids discrimination between genders, provides equal opportunity to work, and ensures the equal distribution of wealth.
- Political Justice- This term provides all citizens to participate in the political proceedings.
LIBERTY AND FRATERNITY
The term Liberty and Fraternity is provided in the Preamble of the Indian Constitution. The term liberty and fraternity was used in the French revolution.
Parliamentary form of Government
The Bicameral Legislature system is followed in our country. The Unicameral legislature system is followed in countries like Norway. The law making procedure is easy in the unicameral legislature but the bicameral legislature is effective as there would be a lot of discussions and deliberations before making legislation. Articles 74 and Article 75 is concerned with the Parliamentary system at the centre and Article 163 and Article 164 is concerned with the Parliamentary system at the states. Article 74 of the Indian Constitution provides that there should be a Council of Ministers with the Prime Minister and Council of Minister can aid and advise the President. Article 75 of the Indian Constitution deals with the other provisions relating to the appointment of Ministers.
Parliamentary v. Presidential System
The Presidential form of Government is followed in countries like the United States of America. The President is the head of the State in the Presidential System of Government. The Parliamentary system is preferred over the Presidential system as it ensures the equal distribution of power and also power is not within the hands of a single person. The drafters of our constitution did not prefer the presidential system as the executive and legislatures would become independent of each other. The makers felt that this would be an issue afterwards.
A unique blend of rigidity and flexibility
The Indian Constitution is neither rigid nor flexible, this is also one of the reasons for its length. The famous example of the rigid constitution is the Constitution of the U.S., and it is known as a rigid constitution as the amendment process is very difficult. The Indian Constitution is not very difficult to amend, as the Constitution of The U.S.A. It has gone through 103 amendments so far but there are certain steps to be satisfied before bringing in the amendment. Thus the Indian Constitution is a unique blend of rigidity and flexibility.
To know more about what is the Constitution and historical background of the Indian Constitution in brief, please refer to the video below:
Part III of the Indian Constitution deals with fundamental rights.
Article 14 of the Indian Constitution guarantees the right to equality. Article 14 is applicable not only to citizens but also to corporations and foreigners. According to this Article, it is the duty of the state not to deny any person equality before the eyes of the law and to provide them equal protection of laws within the territory of India. The term “Equal protection of laws” was discussed in the case of St.Stephen’s college vs. The University of Delhi, according to this case it was said that the state has to provide equal protection of laws to every citizen and non-citizen in this territory and no one should be denied such protection. In the case of Chiranjit lal Chowdri vs Union of India, it was said that “there is no doubt that Article 14 provides one of the most valuable and important guarantees in the Constitution which should not be allowed to be whittled down.” The concept of the rule of law is incorporated in this Article. The concept of rule of law was developed by Dicey. According to Dicey, there are three main aspects of this rule of law,
- Equality before the law.
- Absence of arbitrary power and discrimination.
- The importance is given to the rights of the individual.
Article 14 allows differentiation in certain situations when there is an intelligible differentia, that there should be a proper reason for differentiating. The differentia which has been applied in the classification should have an essential connection with the objective which is sought to be achieved by the classification. Article 14 does not permit any class legislation. The classification should be reasonable and the persons in the same situation cannot be treated differently. For example, the persons who are under 18 years of age are incompetent to vote is a reasonable differentiation. In a famous case, it was mentioned that the prisoners from India and prisoners from Europe who are in Indian Jails convicted for the same crime must be treated in the same manner.
Article 15 prohibits discrimination on the grounds of caste, race, religion, sex and place of birth. According to this article, there should not be any discrimination in:
- Accessing shops, public places, hotels and other public places of entertainment.
- The use of places of public resort-like wells and shops that are maintained wholly or partly out of State funds or dedicated to the use of the general public.
There are certain exceptions to this Article provided in clauses 15(3) and 15(4). They are:
- The State can make special laws for women and children and those provisions should be for their betterment;
- This Article will not prevent the state anyway from making special provisions for the advancement of any socially or educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
The Hon’ble Supreme Court, in the case of G.M. Southern Railways v. Rangachari, held that Article 15(4) of the Indian Constitution to be an exception to Article 15(1) and nothing provided in the Article15(1) will affect the State from making any special laws for the improvement of backward classes of citizens. In the case of Dasaratha Rama Rao vs State of Andhra Pradesh, it was held that Article 15 is a particular application of the general right of equality provided for in Article 14. The concept of gender equality provided under Article 15 was also discussed in a case like Vishaka vs the State of Rajasthan.
Article 16 of the Indian Constitution guarantees equality of opportunity in matters of public employment. In the case of J.K v Triloki Nath Khosa, it was held that even though Article 16 provides equality of opportunity, the state can prescribe all the necessary qualifications and tests that are necessary for providing employment. In the case of M.R.Balaji vs Mysore, the Court put a 50% limit on reservations in almost all states except Tamil Nadu and Rajasthan.
Article 16(4) is a very important provision that allows the state to make reservations of appointments for the development of backward classes if they are not adequately represented by the services of the state. The case of Devadasan v Union of India is a landmark judgment which discussed the scope of this Article. In this case, the validity of the “carry forward rule” made by the government that is used to regulate the reservation of employment was discussed. The Supreme Court held that the carry forward rule is not valid as reservation exceeds over 50 percent because of this carry forward rule and it affects the other classes of society.
Article 17 of the Indian Constitution abolishes untouchability and practising it in any form is forbidden. In Shastri Yagnapurushdasji and Ors. v. Muldas Bhundardas Vaishya and Anr., it was held that ‘untouchability is founded by superstition, ignorance, complete misunderstanding of the true teachings of Hindu religion’. In the famous case of the State of Karnataka vs Appa Balu Ingale, it was noted that,
- Abolition of Untouchability is the arch of the Constitution to make the preamble meaningful and to integrate the Dalits in the national main-stream;
- The practice of untouchability is the root cause for social segregation, denial of opportunities for Dalits in the educational, economic and cultural pursuits;
- All customs, usages, practices directly or indirectly recognizing or encouraging the practice of untouchability in any form is void, as it is opposed to public policy;
- The new Act “The Protection of civil rights 1955” was brought out and it was said that the Act is an instrument to enhance the civil, social, cultural, economic and constitutional rights of the Dalits in addition to the rights provided in the Constitutional provisions.
Article 18 of the Indian Constitution abolishes the titles. According to this Article, no Indian citizen can accept the titles from any foreign states. The provision was brought out to prevent discrimination. The awards like Bharat Ratna and Padma Vibhushan awarded by the Indian Government do not come under the titles so they can be accepted. The aristocratic classes like Khan Bahadurs created by the British were abolished under this Article.
Article 19 of the Indian Constitution guarantees various freedom like:
- Freedom of speech and expression;
- To assemble peaceably and without arms;
- To form associations or unions or co-operative societies;
- To move freely throughout the territory of India;
- To reside and settle in any part of the territory of India;
- To practice any profession, or to carry on any occupation, trade or business.
The freedom of speech under Article 19(1)(a) includes the right to express one’s opinions on any issue through various ways like pictures and films. It includes the freedom of communication and the right to provide or publish opinions and this right is subject to reasonable restrictions being imposed under Article 19(2). In the case of Romesh Thapar vs the State of Madras, it was held that freedom of expression also includes the freedom of publication and propagation. In the case of Government of India v. Cricket Association of Bengal, it was held that freedom of speech and expression also includes the right to acquire information. There are also certain reasonable restrictions provided for the freedom of speech and expression guaranteed under Article 19(1). Article 19(2) provides those restrictions. They are,
- The statements made should not be defamatory.
- The statements should not affect the interest of sovereignty and integrity of India.
- The statements should not affect any friendly relations with the foreign states.
- The statements should not affect public offence, decency and morality.
- The statements should not be in relation to the contempt of court.
Article 20 provides protection in respect of conviction for offences. According to this Article:
- No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act considered as an offence, should not be subjected to a penalty which is greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
- No person shall be prosecuted and punished for the same offence more than once.(Double jeopardy).
- No person accused of any offence shall be compelled to be a witness against himself(Self-incrimination).
Article 20(1) provides protection against ex post facto laws or retroactive laws. According to this provision, no person can be punished for any offence that was not considered as an offence when it was committed, and no person can be awarded greater punishment. In the case of State Bank of India vs T.J Paul, an employee working in Bank Of Cochin was served with charge sheet but the bank was amalgamated with the State Bank of India after a certain time, and it was held that the person cannot be convicted with the rules of State Bank and only the rules of Bank of Cochin is applicable to him.
Article 20(2) provides the doctrine of double jeopardy which means no person can be prosecuted and convicted twice for the same offence. This principle is related to a legal maxim “Nemo debet bis vexari” which means no person can be put twice in peril for the same offence.
Article 20(3) provides protection against self-incrimination and no accused can be compelled to be a witness against himself.
Article 21 of the Indian Constitution guarantees the protection of life and liberty. Article 21 is an important right that protects citizens and non-citizens. In the case of Maneka Gandhi vs Union of India, it was stated that Article 21 also includes the right to live with human dignity. In the case Peoples Union for Democratic Rights v. Union of India, famously known as Asiad Workers Case, it was held that non-payment of minimum wages to the workers employed affects their right to life and their human dignity and it is violative of Article 21. In the case of State of Maharastra vs Public Concern for Governance trust, it was held that the right to maintain a good reputation also comes under the ambit of Article 21. In the case of Hussainara Khatoon vs the State of Bihar, the right to a speedy trial also comes under the ambit of Article 21.
Article 21A guarantees the right to free and compulsory education to children aged 6 to 14 years. This provision was added in the year 2002 by the Eighty-sixth amendment.
Article 22 provides protection against detention in certain cases. According to this Article:
- No person who is arrested shall be detained in custody without being informed of the grounds for his arrest.
- No person arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice.
- Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
Article 23 provides the prohibition of traffic in human beings and forced labour. Human trafficking is the illegal trade of humans for the purposes of forced labour and sexual slavery. In the Asiad workers case, it was held that the persons working with low wages also come under the ambit of forced labor. The offences mentioned in Article 23 have been laid out in various enactments the Bonded Labour Abolition Act of 1976 and the Child Labour (Prohibition and Regulation) Act 1986. In the case of State of Gujarat and Anr vs Honorable court of Gujarat, it was held that Article 23 must be always provided with a purposive interpretation.
Article 24 prohibits the employment of children below fourteen years of age in factories, mines or any other hazardous form of employment. This provision is also enforced under various legislations like the Factories Act as it is necessary to protect young children from exploitation and to provide them with proper education.
Article 25 provides the Freedom of conscience and free profession, practice and propagation of religion. The concept of the secular state provided under the Preamble is supported by this Article. In the case of Javed vs the State of Haryana, while discussing the marriage practices like polygamy it was mentioned that what was protected under Article 25 was the religious faith and not a practice which may run counter to public order, health or morality. Polygamy was not an integral part of religion and monogamy was a reform within the power of the State under Article 25. The Supreme Court in M.P. Gopalakrishnan Nair and Anr. v. State of Kerala and Ors. held that management of the temple primarily is a secular act, even though the State cannot interfere with the freedom of a person to profess, practice and propagate his religion, the secular matters can only be controlled by the State.
Article 26 provides the freedom to manage its own religious affairs. The various rights provided under the article are:
- to establish and maintain institutions for religious and charitable purposes;
- to manage its own affairs in matters of religion;
- to own and acquire movable and immovable property;
- to administer such property in accordance with the law.
In the case of Sri Adi Visheshwara of Kashi Vishwanath Temple’s case, the Supreme Court held that right to manage the temple or endowment is not integral to religion or religious practice and it is known that administration, management and governance of the religious institution or endowments are secular activities and State could regulate them by appropriate legislation.
Article 27 guarantees the freedom as to payment of taxes for promotion of any particular religion.
Article 28 guarantees the freedom as to attendance at religious instruction or religious worship in certain educational institutions. According to this section, any person attending any educational institution that is recognized by the State or receiving aid out of State funds cannot be forced to be a part in any religious instruction that may be provided in such an institution and cannot be forced to attend any religious worship that may be conducted in such institution or in any premises attached without the consent of that person.
Article 29 protects the interest of minorities. The minorities who have a distinct language, script or culture of their own have all rights to protect their identity. The minorities cannot be denied admission in any educational institution that is maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Article 30 provides minorities with the right to establish their own educational institutions and the State shall not discriminate against any such minority institution while providing grants.
Article 31A of the Indian constitution guarantees the person, right to have a property and no person shall be deprived of this right.
Article 32 guarantees the right to constitutional remedies. There are various constitutional remedies allowed under this Article in the form of writs. If there is any violation of fundamental rights, the aggravated person can approach the Supreme Court under the rights provided by this Article. The rights provided under this Article cannot be suspended. The Constitution of India under Article 32 confers power on the Supreme court to issue direction, award or writs. There are five types of writs, that is appropriate to provide relief and for enforcing fundamental rights.
- Habeas corpus- The term habeas corpus literally means “bring the body”.This writ prevents unlawful detention without any justification. The persons who are affected can file an application in the Supreme Court under Article 32 and the court after verifying all the documents will issue a writ of Habeas corpus which will mandate the authorities to produce the persons before the Court.
- Mandamus- The term Mandamus means “We command”. The Court issues mandamus to any public authority and commands them to do their duty or sometimes mandamus is issued in order to refrain them from doing certain acts which they are not authorized to do.
- Prohibition- The writ of Prohibition is issued by the Supreme Court in order to prohibit or stop the proceedings in the inferior courts when the matter does not come under their jurisdiction.
- Quo warranto- The term Quo warranto means ‘What is your authority?’ and as the name suggests this writ is issued to question the authority of the officer doing certain acts.
- Certiorari- The term Certiorari means to “to certify” and this writ is issued when there is any illegality in the judgments passed by the inferior courts.
Directive Principles of State Policy
Part IV of the Indian Constitution deals with the Directive Principles of State Policy. It is the duty of every State to apply these principles while making any new legislation. The Directive Principles of State Policy is similar to the ‘Instrument of Instructions’ that is in the Government of India Act 1935. They are basically instructions to the legislature and executive that has to be followed while framing new legislation by the State. There are various directive principles like,
- The State shall promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
- The state should ensure that the citizens should have adequate means of livelihood.
- The state should make sure that the ownership and control of material resources are equally distributed among citizens.
- The state should provide equal pay for equal work irrespective of gender.
- The state must also take care of the operation of the economic system and should make sure it does not lead to concentration of wealth.
- The State shall provide free legal aid shall secure that the operation of the legal system in order to promote justice.
- The State shall take steps to organise village panchayats and should encourage self-governance in villages.
- The State shall make provision for providing just and humane conditions of work and for maternity relief.
- The State shall develop the educational and economic interests of the weaker sections of the people like the Scheduled Castes and the Scheduled Tribes, and can save them from social injustice and all kinds of exploitation.
- The State shall regard the raising of the level of nutrition and the standard of living of its people in order to bring improvement in public health.
- The State shall bring out new scientific developments in the field of agriculture and animal husbandry.
A Federation with a strong centralising tendency
The famous salient feature of our Indian Constitution is that it is a federation with a strong centralising tendency. The constitution of India is neither federal nor unitary. The reasons for calling the Indian Government unitary is that,
- The division of powers is not equal. The centre has more powers than the state that is evident from the fact that the Union list contains more matters than the State list.
- The federations like the U.S.A have rights to frame their own constitution, which is not possible in India as the entire country follows the Single constitution.
- During the time of emergency, the states come under the control of the Centre.
- There is a single system of Courts which enforces both the Central and State laws.
- There is no equal representation of States in the houses of Parliament which is not the same in federations like the U.S.A.
The Indian Constitution is considered as federal for various reasons like:
- There is a written Constitution which is an essential feature of every country following the federal system.
- The supremacy of the constitution is always protected.
Thus the Indian Constitution can be described as quasi-federal or a federation with a strong centralizing tendency.
The concept of Adult suffrage allows every citizen of our country who is above eighteen years has the right to vote in the elections. Any adult who is eligible to vote should not be discriminated on any basis like gender, caste and religion. This provision was added in the sixty-first amendment which is also known as the Constitution Act, 1988. The accepted age for voting was twenty-one before this amendment afterwards it was changed to 18 years of age. Article 326 of the Indian Constitution guarantees this right. There are also certain disqualifications provided under Article like:
- Unsound mind;
- Criminals who are indulged in the corrupt and illegal practice.
The persons with these disqualifications are not accepted as a registered voter and they are not allowed to cast votes in the election.
An Independent Judiciary
The Judiciary ensures the proper functioning of the constitution and the enforcement of various provisions of the Constitution. The Constitution makers ensured that Judiciary has to be independent so that it will not be biased. The Supreme court is considered as the watchdog of democracy. There are various provisions in the Article which ensures the independence of the judiciary,
- The appointment of Judges is independent and there is no involvement of any executive authorities;
- The tenure of Judges is secured;
- The removal of judges from the tenure must be also based on the constitutional provisions.
A Secular State
The term Secular State means that there is no separate religion for the State and every religion is respected equally in the State. The Preamble of the Indian Constitution itself states that India has to be a secular state. The Fundamental rights provide the citizens’ freedom to follow their own religion and religious practices and no one can be forced to follow any religion. The proposal of developing a uniform civil code is also provided in the directive principles of State policy in order to resolve the differences between various religions, though it is not implemented still. Article 26 also provides the right to manage their own religion in order to prevent any intrusion. The Supreme Court has also held that various religious denominations like Anandmargi though they are not considered as separate religion will also enjoy protection under Article 26.
There is no separate citizenship for the States and the Centre like in various federal countries like the U.S.A. There is single citizenship provided to our citizens. Part 2 of the Indian Constitution, i.e. Article 5 to Article 11 of the Indian Constitution deals with citizenship. The Citizenship Act, 1955 which was amended recently in 2019 also deals with citizenship. Single citizenship allows the persons to enjoy equal rights in various aspects across the country. According to Article 5, it is clearly mentioned that the persons will be considered as citizens of the territory of India, which ensures that there would be only single citizenship. The citizenship of Indians is largely determined by the principle of jus sanguinis ( i.e. the citizenship is based on the citizenship of the parents).
Article 51A of the Indian Constitution provides various fundamental duties. There are no specific provisions to enforce fundamental duties in the Courts like the fundamental rights but it is also necessary to follow the fundamental duties. In the case of AIIMS Student Union vs AIIMS, it was held that the fundamental duties are equally important as the fundamental rights. There are various duties provided to a citizen like:
- To respect the Constitution and its ideals and to abide by the provisions of the Constitution.
- To cherish and follow the noble ideals which inspired our national struggle for freedom.
- To value the rich heritage of our country.
- To defend our country when there is a necessity and to render national service when called upon.
- To protect the environment and carry out measures to improve them.
- To safeguard the public property.
- To promote harmony and the spirit of a common brotherhood.
Landmark Judgements on Fundamental Duties
In the case of Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, the court banned all the mining activities in the Mussoorie hills as it was affecting the environment and ecological balance, as it is one the fundamental duty provided in Article 51 A.
- In the case of Mumbai Kamgar Sabha v. Abdulbhai, where the court held that if the constitutionality of the Act is challenged then the fundamental duties under Article 51 A can be taken into consideration.
- In the case of Ram Prasad v. State of Uttar Pradesh, the fundamental duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity provided under Article 51A was discussed.
The concept of judicial review is an essential feature of the Constitution which helps the constitution to work properly. The judiciary is considered to be the guardian of the constitution, thus it is the duty of the judiciary to check the actions that are violative of various articles in the Constitution. The actions of various organs of the government like executive and legislature can be questioned by the judiciary using the judicial review. The judicial review is an important check and balances in the separation of powers. The court that is authorized with the power of judicial review can invalidate any act that is violative of the various basic features of the Constitution. Article 32 and Article 136 of the Indian Constitution are the articles related to the Judicial review in the Supreme Court. Article 226 and Article 227 are related to the judicial review in the High Court. The scope of judicial review is limited to three grounds:
- Unreasonableness and irrationality;
- Procedural impropriety.
It is also a settled principle that there should be no judicial review in policy matters, that the policy decision taken by the State or its authorities is beyond the scope of judicial review unless the decision is found to be arbitrary, unreasonable or it is in contravention of the statutory provisions or if it violates the rights of individuals guaranteed under the statute. The policy decision cannot be in contravention of the statutory provisions because if the Legislature in its knowledge provides for a particular right, the authority making a decision regarding the policy cannot nullify the same. The same principle was also stated in the case of Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation. In this case, it was said that the court will not interfere in the matter of administrative action or changes.
Landmark Judgements on Judicial Review
- In the case of Marbury v. Madison, the U.S Supreme Court in the year 1803 declared that the legislative actions can also be questioned by the judiciary even though there is no separate provision in the constitution of the U.S.A providing the power of judicial review.
- In the case of Kesavananda Bharati vs. the State of Kerala, even though the court after agreeing that the Parliament is not restricted to amend the Constitution, also put a caveat of the doctrine of the basic structure. The Court observed that the constitutional amendments have to be made only after considering the basic structure of the Constitution.
- In the case of A.K. Gopalan v. the State of Madras, it was held that the law of preventive detention is subject to such limited judicial review.
- In the case of State of Madras v. V.G. Row, while discussing the importance of judicial review held that judicial review, itself is a limitation on the supremacy of the legislature, and it is a fundamental part of our constitutional scheme and it is the duty of the court to declare an enactment void if is in contravention to the provisions of the Constitution.
- In the case of Binoy Viswam v. Union of India, the scope of judicial review of the legislative action was discussed in detail.
- In the case of Shayara Bano v. Union of India, it was said that the Judicial review must be exercised with insight into social values and to supplement the changing social needs.
- In the case of L.Chandra Kumar v. Union of India held that the power of judicial review of the High Court under Article 226 could not be excluded even by a Constitutional Amendment.
- In the case of Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors, there was a judicial review of subordinate legislation and the Court said that subordinate legislation does not carry the same degree of immunity that is provided for a statute passed by a competent legislature.
- In the case of State of Tamil Nadu v. P. Krishnamoorthy, the court laid down various conditions for the judicial review of subordinate legislation.
The Indian Constitution has a lot of salient features which makes it special. The lawmakers have taken all the factors into consideration and have tried to accommodate all the differences in our Country. The Constitution and various rights provided in the Constitution acts as a guardian to our citizens.
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