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3

A Research Design 4
1 Judicial Review-Meaning 7
2 History and growth of Judicial Review 11
3 Concept of Judicial Review in various jurisdictions
across the globe
15
4 Origin and Need of Judicial Review in Indian
Governance system
20
5 Implication of Judicial Review in Indian Governance
system and the governance system across the globe
22
6 Judicial Review and Doctrine of Basic Structure 29
7 Judicial Activism 32
8 Criticism of Judicial Review 42
9 Conclusion and Recommendations 45
Bibliography 51
Table of Cases 54










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Research Area: Judicial Review
Title: ~Judicial Review and Indian Governance system -a comparative
Analysis with other governance system¨
Objectives:
1. To find out the trend of judicial review in various judicial system of the
world.
2. To find out the origin and growth of judicial review in Indian Governance
system.
3. To find out the impact of Judicial Review in Indian Governance system.
4. To find out the alternatives of Judicial review, if any.

Introduction:
Judicial review is the power of the judiciary to annul the acts of the executive or
the legislative where it finds them incompatible with a higher norm. Judicial
review is an example of the functioning of separation of powers in a modern legal
system. This principle is interpreted differently in different jurisdictions, which
also have differing views on the different hierarchy of legal norms. Marbury v.
Madison was the case which started the trend of judicial review. Since then the
judicial review has been a matter of debate.In india after Keshvanand Bharati`s
case the power of judicial review by the court has become the basic structure¨ of
the constitution. There arose many pros and cons to the system of judicial review
in India.
The scope of the research is to analyse the need and necessity of judicial review in
India.

Hypothesis:
Judicial Review is an essential element in all governance system across the
globe.
5


Research Questions:

1. Is judicial review required in Indian governance system?
2. How far judicial review has grown in Indian Governance system compared to
other governance system?
3. What is the trend of growth of judicial review system outside India
4. How far the judicial review has led to Judicial Activism across the state?
5. Are there any alternatives or checks on judicial review in Indian Governance
system?

Research Type:
The research will be doctrinal in nature, will be based on the secondary source
available from the library. Besides library, the online materials, articles and
journals will be consulted. The research will be qualitative in nature which will
analyse the principles established by law and suggest the better alternative, if any.
The research will compare various governance system with respect to Judicial
Review.

Tools:
1. Books
2. Journals
3. Articles
4. Internet

Chapter Plan :-
1. Judicial Review-Meaning
2. History and growth of Judicial Review
3. Concept of Judicial Review in various jurisdictions across the globe
4. Origin and Need of Judicial Review in Indian Governance system
5. Implication of Judicial Review in Indian Governance system and the
governance system across the globe
6

6. Judicial Review and Doctrine of Basic Structure
7. Judicial Activism
8. Criticism of Judicial Review
9. Conclusion and Recommendations
Bibliography
Table of Cases

References
1. http://en.wikipedia.org/wiki/Judicial_review
2. Marbury v. Madison [5 U.S. (1 Cranch) 137 (1803)]
3. Keshvanand Bharati`s case (AIR 1973 SC 1461)




















7

CHAPTER 1-
Judicial Review- Meaning

1.1 MEANING

Judicial Review can be defined as the function of the court to interpret and apply
the constitution to particular circumstances and legal issues, judicial review has
become a noteworthy expression of the power of the judiciary. Nearly 200 years
old, this seemingly simple doctrine has instigated a substantial amount of political
controversy and debate from which three individuals should be recognized for
their contributions.
Coming to the role that the idea of judicial review
1
plays in the non-derogable
basic structure of the Constitution, one needs to start with Keshavananda itself,
where Khanna J`s judgment is educative.
"...The power of judicial review is, however, confined not merely to deciding
whether in making the impugned laws the Central or State Legislatures have
acted within the four corners of the legislative lists earmarked for them, the
courts also deal with the question as to whether the laws are made in conformity
with and not in violation of the other provisions of the Constitution.... As long as
some fundamental rights exist and are a part of the Constitution, the power of
judicial review has also to be exercised with a view to see that the guarantees
afforded by those rights are not contravened.... review has thus become an
integral part of our constitutional system and a power has been vested in the High

1
www.goforthelaw.com/articles/fromlawstu/article62.htm - 49k -
8

Courts and the Supreme Court to decide about the constitutional validity of
provisions of statutes. If the provisions of the statute are found to be violative of
any article of the Constitution, which is the touchstone for the validity of all laws,
the Supreme Court and the High Courts are empowered to strike down the said
provisions."

Ronald Dworkin, a proponent of judicial activism, believes in leaving issues to
the court`s judgment¨ and investing our faith in their decisions (Dworkin 526).

Supporting Dworkin, John Arthur asserts that judicial review promotes
democracy, and more importantly, imposes safeguards against unauthorized
decisions made by the legislative branch.
The judges of the superior courts have been entrusted with the task of upholding
the Constitution and to this end, have been conferred the power to interpret it. It is
they who have to ensure that the balance of power envisaged by the Constitution
is maintained and that the legislature and the executive do not, in the discharge of
functions, transgress constitutional limitations. Thus, judicial review is a highly
complex and developing subject. It has its roots long back and its scope and
extent varies from case to case. It is considered to be the basic feature of the
Constitution.
1.2 TYPES:
9


1.2(a) Judicial review of administrative acts
2

Most modern legal systems allow the courts to review administrative acts, i.e.
individual decisions of public body, e.g. a decision to grant a subsidy or to
withdraw a residence permit. Certain governmental systems, most notably in
France and Germany, have implemented a system of administrative courts, that
are charged exclusively with deciding on disputes between the members of the
public and the administration. In other countries, e.g. the United Kingdom and the
Netherlands, judicial review is carried out by regular civil courts, although it may
be delegated to specialized panels within these courts, such as the Administrative
Court within the High Court of England and Wales. It is quite common that
before a request for judicial review of an administrative act is filed with a court,
certain preliminary conditions, such as a complaint to the authority itself must be
fulfilled. In most countries, the courts apply special procedures in administrative
cases
1.2(b) Judicial review of legislation
In American legal language, the term "judicial review" usually refers to the
review of the constitutionality of legislation by both federal and state courts, such
as the Supreme Court of the United States. However, many legal systems
specifically do not allow any review of primary legislation, passed by parliament.
In the United Kingdom, statutes cannot be set aside under the doctrine of
parliamentary sovereignty. Another example is the Netherlands, where the
Constitution expressly forbids the courts to rule on the question of
constitutionality of primary legislation.
[1]


2
http://en.wikipedia.org/wiki/Judicial_Review
JUDICIAL REVIEW
LEGISLATIVE
ADMINISTRATIVE
JUDICIAL
10

1.2(c) Judicial review of judicial decision
Judicial review of judicial decision is prescribed in the constitutions itself. The
judicial review of the judicial actions is a very rare concept. It is prevalent in the
constitution of India. Article 137 of Indian constitution states subject to the
provisions of any law made by the Parliament or any rules made under Article 145,
the Supreme Court shall have power to review any judgement pronounced or order
made by it¨.
Various facets of judicial review are discussed in the following chapters.





















11

CHAPTER 2- History and Growth of
Judicial Review


2.1 Emergence of Judicial Review in Marbury vs Madison
It all started with Marbury vs Madison in US. Then it worked leaps and bounds in
growth . for the purpose of better understanding the origin of Judicial review can
be divided into the concept in USA and the concept in united Kingdom.
Origin in United states
3

The U.S. Constitution does not mention judicial review. This power, however,
was used before 1787 by courts in several of the American states to overturn laws
conflicting with state constitutions. In 1789 the Congress of the United States
passed the Judiciary Act, which gave federal courts the power of judicial review
over acts of state government. This power was used for the first time by the U.S.
Supreme Court in Hylton v. Virginia (1796).
In 1803, the power of judicial review was used for the first time by the U.S.
Supreme Court to declare an act of Congress unconstitutional (Marbury v.
Madison). In his opinion for the Court in Marbury v. Madison, Chief Justice John
Marshall explained and justified the exercise of judicial review to strike down an
unconstitutional act of Congress. He wrote, "Certainly all those who have framed
written constitutions contemplate them as forming the fundamental and
paramount law of the nation, and consequently the theory of every such
government must be that an act of the legislature repugnant to the Constitution is
void. This theory... is consequently to be considered, by this court as one of the
fundamental principles of our society" (Patrick 2001, 206). Thus, an enduring
precedent was set that has been the foundation for the federal judicial branch's
power to declare unconstitutional any acts of coordinate branches of the federal
government, the legislative and the executive branches, which violate the
Constitution (Nelson 2000, 51-74).

3
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm
12


The decision in Marbury's case, written by Chief Justice John Marshall (the very
same John Marshall who affixed the seal to Marbury's commission--talk about a
conflict of interest!) established and justified the power of
judicial review. The plain words of Section 13 of the Judiciary Act indicate that
Marbury went to the wrong court or invoked the wrong statute (or both), but
Marshall proceeded as if the suit were authorized by Section 13 and then declared
the statute unconstitutional on the grounds that it purported to expand the Court's
original jurisdiction in violation of Article III. Marbury's suit was dismissed for
lack of jurisdiction. Marshall's decision--brilliant in its conception--allowed the
Court to brand Jefferson a violator of civil rights without issuing an order that the
President could have ignored.
The Court's first decision declaring Executive Branch action to be
unconstitutional was Little v Barreme (1804), called the Flying Fish case,
involved an order by President John Adams, issued in 1799 during our brief war
with France, authorizing the Navy to seize ships bound for French ports. The
president's order was inconsistent with an act of Congress declaring the
government to have no such authorization. After a Navy Captain in December
1799 seized the Danish vessel, the Flying Fish, pursuant to Adams's order, the
owners of the ship sued the captain for trespass in U. S. maritime court. On
appeal, C. J. Marshall rejected the captain's argument that he could not be sued
because he was just following presidential orders. The Court noted that
13

commanders "act at their own peril" when they obey invalid orders--and the
president's order was outside of his powers, given the congressional action.



2.2 Genesis of Judicial review in United Kingdom
The development of the principles of judicial review was slow and gradual.
Many of the principles which remained for years have undergone drastic changes.
The Wednesbury principles, laid down as early as 1947, continue to be of vital
importance. Earlier, the English Courts could interfere only with the decisions of
judicial and quasi- judicial authorities but not with administrative decisions. The
decision in Assac/ated Prar/nc/a/ P/ctare Haases Ltd. r Wednesbary
Carparat/an, altered this position. The facts of the case are very interesting to
note. The plaintiff-company was granted licence under the Cinematograph Act
subject to the condition that ¨no children nunder the age of 15 years shall
be admitted to any entertainments whether accompanied by an adult or
not'. This condition was challenged as unreasonable and the
provisions of Sunday Entertainments Act were also challenged. The
Court held that in considering whether an authority having so
unlimited power has acted unreasonably, the court is only entitled to
investigate the action of the authority with a view to seeing if it has taken into
14

account any matters that ought not to be or disregarded matters that ought to be
taken into account. The Court cannot interfere as an appellate
authority overriding the decisions of such authority but only as a
judicial authority concerned to see whether it has contravened the law by acting
in excess of its power. Lord Greene, who rendered the leading judgment,
dealt with the law in detail and enunciated -- principles of
reasonableness¨.

























15


CHAPTER 3- Concept of Judicial Review
across The Globe

3.1 Canada
Until 1982, Canada had parliamentary sovereignty like the United Kingdom,
wherein the SUPREME COURT OF CANADA could only overturn acts of
Parliament if those acts violated the division of powers between the federal and
provincial levels of government. With the introduction of the Charter of Rights
and Freedoms in 1982, Canadian courts gained the power to overturn primary
legislation, a change that would have sweeping effects on both the operation of
the Canadian government and on the relationship between the people and the
government. While the Constitution of Canada does have provisions that can
allow the government to ignore a judicial ruling, such as the Notwithstanding
Clause, such powers are rarely used, and in most cases they are politically very
unpopular.
3.2 Germany
The constitution of the Federal Republic of Germany establishes a separate
Federal Constitutional Court of Germany that is empowered with reviewing acts
of the Federal Republic Congress (the Bundestag) for their constitutionality.
Other countries also have a separate court for this purpose. These are separate
Supreme Courts that do not deal with appealate cases in civil and criminal law -
but rather, just in constitutional cases. The Federal Constitutional Court of
Germany can even review and reject constitutional amendments on the grounds
that they are contradictory to the rest of the Federal Republic Constitution. This
goes beyond even the powers of the Supreme Court of the United States, and the
Supreme Court of Canada.
3.3 The Hong Kong Special Administrative Region ('Hong Kong')
16

Hong Kong, formerly a British colony, became part of the Peoples' Republic of
China on 1 July 1997. The Basic Law, as agreed between the British and the
China Governments, became the constitutional document of Hong Kong. The
Basic Law provides that the previous law in force in Hong Kong, including
Common Law, will be preserved. Thus, Judicial Review, as part of the Common
Law, is also preserved. Article 35 of the Basic Law expressly provides the right of
citizen to review executive acts in the court of law. Under the Basic Law, the
court of Hong Kong is also delegated with the power to interprete the Basic Law.
Thus, it is recognised by the Hong Kong courts that they have jurisdiction to
check whether the executive or legislature are working within the boundaries of
the Basic Law.
Like the United States, Hong Kong courts also held that they may review as to
whether legislation passed by the legislature are in compliance with the Basic
Law. This is different from the situations in UK where the court may have no
such jurisdiction under the traditional doctrine of supremacy of parliament. The
Hong Kong courts observed that reviewing legislation is possible because the
legislature in Hong Kong is not, unlike its UK counterpart, supreme.
3.4 The Republic of Ireland
Judicial review in Ireland is way for the Supreme Court to supervise the
Oireachtas to make sure that legislation does not conflict with the Constitution.
3.5 The United Kingdom
England and Wales:
Judicial review is a procedure in English administrative law by which English
courts supervise the exercise of public power. A person who feels that an exercise
of such power by, say, a government minister, the local council or a statutory
tribunal, is unlawful, perhaps because it has violated his or her rights, may apply
to the Administrative Court (a division of the High Court) for judicial review of
17

the decision. If the application for judicial review is successful, the Court may set
aside (quash) the unlawful act. In certain limited circumstances, the claimant may
be able to obtain damages. A court may also make a mandatory or prohibitory
order or an injunction to compel the authority to act lawfully or to stop it from
acting unlawfully.
Unlike in the United States and some other jurisdictions, English law does not
recognize judicial review of primary legislation (laws passed by Parliament), save
in limited circumstances where primary legislation is contrary to EU law (see
Factortame). Although the Courts can review primary legislation to determine its
compatibility with the Human Rights Act 1998, they have no power to quash or
suspend the operation of an enactment which is found to be incompatible with the
European Convention of Human Rights - they can merely declare that they have
found the enactment to be incompatible.
3.6 Scotland
The power of judicial review of all actions of administrative bodies in Scotland
(including the Scottish Parliament) is held by the Court of Session. The procedure
is governed by Chapter 58 of the Rules of Court. There are no time limits on
seeking judicial review, although if proper administration is prejudiced by delay
on the part of the pursuer, the court may exercise its discretion and refuse to grant
a review. Despite the procedural differences, the substantive laws regarding the
grounds of judicial review in Scotland are the same as in England and Wales, with
decisions in one jurisdiction regarded as highly persuasive in the other. There is,
however, one substantial difference in Scotland since there is no distinction
between review of a public body and a private body, which is different from in
England, where review is only possible in the case of a public body or a quasi-
public body (West v. Secretary of State for Scotland). Readers are referred to
Judicial review in English Law for further detail on the grounds of review.
Generally, it is confined to purely procedural grounds (the official action was
illegal or improper), although the court will also sanction decisions which are, in
substance, so unreasonable that no reasonable decision-maker could have reached
18

it (so-called Wednesbury unreasonableness). A more rigorous standard of
substantive review is applied where the matter complained of touches upon the
pursuer's rights in terms of the Human Rights Act 1998. About six hundred
judicial review cases are raised every year, but most are settled by agreement with
only a small minority having to be decided by the court.
3.7 The United States
Judicial review in the United States refers to the power of a court to review the
actions of public sector bodies in terms of their lawfulness, or to review the
constitutionality of a statute or treaty, or to review an administrative regulation for
consistency with either a statute, a treaty, or the Constitution itself. At the federal
level, there is no judicial review explicit in the United States Constitution, but the
doctrine has been inferred from that document. At the time of the 1787
Constitutional Convention, five of the thirteen States included some form of
judicial review or judicial veto in their state Constitutions. Delegates at 1787's
Constitutional Convention, including South Carolina's Charles Pinckney, spoke
out against the doctrine of judicial review. The Constitution states in Article III:
"The judicial power of the United States, shall be vested in one Supreme Court,
and in such inferior courts as the Congress may from time to time ordain and
establish....The judicial power shall extend to all cases, in law and equity, arising
under this Constitution, the laws of the United States, and treaties made, or which
shall be made, under their authority....In all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be party, the
Supreme Court shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such regulations as the Congress shall
make."
Opponents of judicial review have charged that the Supreme Court's power to
invalidate Federal and state laws or actions has no counterpart in common or civil
law, and has no textual basis in the United States Constitution. The law of the
19

United States derives in great part from the common law traditions the colonies
inherited from Britain, which arguably have vested the power of judicial review in
the people since the signing of the Magna Carta in 1215.

















20


CHAPTER 4- Origin and Growth of Judicial
Review in India


The contradiction between the principles of parliamentary sovereignty and
judicial review that is embedded in India's constitution has been a source of major
controversy over the years. After the courts overturned state laws redistributing
land from zamindar (see Glossary) estates on the grounds that the laws violated
the zamindars' Fundamental Rights, Parliament passed the first (1951), fourth
(1955), and seventeenth amendments (1964) to protect its authority to implement
land redistribution. The Supreme Court countered these amendments in 1967
when it ruled in the Golaknath v State of Punjab case that Parliament did not have
the power to abrogate the Fundamental Rights, including the provisions on private
property. On February 1, 1970, the Supreme Court invalidated the government-
sponsored Bank Nationalization Bill that had been passed by Parliament in
August 1969. The Supreme Court also rejected as unconstitutional a presidential
order of September 7, 1970, that abolished the titles, privileges, and privy purses
of the former rulers of India's old princely states.
In reaction to Supreme Court decisions, in 1971 Parliament passed the Twenty-
fourth Amendment empowering it to amend any provision of the constitution,
including the Fundamental Rights; the Twenty-fifth Amendment, making
legislative decisions concerning proper land compensation nonjusticiable; and the
Twenty-sixth Amendment, which added a constitutional article abolishing
princely privileges and privy purses. On April 24, 1973, the Supreme Court
responded to the parliamentary offensive by ruling in the Keshavananda Bharati v
the State of Kerala case that although these amendments were constitutional, the
court still reserved for itself the discretion to reject any constitutional amendments
passed by Parliament by declaring that the amendments cannot change the
constitution's "basic structure."
21

During the 1975-77 Emergency, Parliament passed the Forty-second Amendment
in January 1977, which essentially abrogated the Keshavananda ruling by
preventing the Supreme Court from reviewing any constitutional amendment with
the exception of procedural issues concerning ratification. The Forty-second
Amendment's fifty-nine clauses stripped the Supreme Court of many of its powers
and moved the political system toward parliamentary sovereignty. However, the
Forty-third and Forty-fourth amendments, passed by the Janata government after
the defeat of Indira Gandhi in March 1977, reversed these changes. In the
Minerva Mills case of 1980, the Supreme Court reaffirmed its authority to protect
the basic structure of the constitution. However, in the Judges Transfer case on
December 31, 1981, the Supreme Court upheld the government's authority to
dismiss temporary judges and transfer high court justices without the consent of
the chief justice.
Since then, Judicial Review has acted as an aid to protect the basic structure of the
constitution from the whims and fancies of the legislature though with lots of ups
and downs. This proposition was affirmed in recent Judgement of Supreme Court
dated 11.01.2007 rendered in the case in I R Coelho (Dead) by LRs vs. State of
Tamil Nadu and Others, unanimously by all the judges.
The role model for governance and decision taken thereon should manifest
equity, fair play and justice. The cardinal principle of governance in a civilized
society based on rule of law not only has to base on transparency but also must
create an impression that the decision-making was motivated on the consideration
of probity. The government has to rise above the nexus of vested interests and
nepotism and eschew window-dressing. The act of governance has to withstand
the test of judiciousness and impartiality and avoid arbitrary or capricious actions.
Therefore, the principle of governance has to be tested on the touchstone of
justice, equity and fair play.



22


Chapter 5- Implications of Judicial Review in Indian
Governance system and Governance System across the Globe

The judges of the superior courts have been entrusted with the task of upholding
the Constitution and to this end, have been conferred the power to interpret it. It is
they who have to ensure that the balance of power envisaged by the Constitution
is maintained and that the legislature and the executive do not, in the discharge of
functions, transgress constitutional limitations. Thus, judicial review is a highly
complex and developing subject.
In U.O.I r K.M.Shankarappa the Supreme Court held that the provision for
revision by Central Government of decisions of the Appellant Tribunal under
Section 6(1) of the Cinematograph Act, 1952 is unconstitutional. The Supreme
Court observed:
The Government has chosen to establish a quasi-judicial body which has been
given the powers, inter alia, to decide the effect of the film on the public. Once a
quasi-judicial body like the Appellate Tribunal gives its decision, that decision
would be final and binding so far as the executive and the government is
concerned. To permit the executive to review or revise that decision would
amount to interference with the exercise of judicial functions by a quasi-judicial
board. It would amount to subjecting the decision of a quasi-judicial body to the
scrutiny of the executive. Under the Indian Constitution, the executives have to
obey the judicial orders. Thus, Section 6(2) is a travesty of the rule of law, which
is one of the basic structures of the Constitution. The legislature may, in certain
cases, nullify a judicial or executive decision by enacting an appropriate
legislation. However, without enacting an appropriate legislation, the executive or
the legislature cannot set at naught a judicial order. The executive cannot sit in an
appeal or review or revise a judicial order. At the highest, the government may
23

apply to the Tribunal itself for a review, if circumstances so warrant. But the
government would be bound by the ultimate decision of the Tribunal¨.
In the landmark judgment of P.U.C.L r U.O.I Justice Shah observed: The
legislature in this country has no power to ask the instrumentalities of the State to
disobey or disregard the decisions given by the courts. The legislature may
remove the defect, which is the cause for invalidating the law by the court by
appropriate legislation if it has power over the subject matter and competent to do
so under the Constitution. The primary duty of the judiciary is to uphold the
Constitution and the laws without fear or favour, without being biased by political
ideology or economic theory. Interpretation should be in consonance with the
constitutional provisions, which envisage a republic democracy. Survival of
democracy depends upon free and fair election. It is true that political parties fight
elections, yet elections would be farce if the voters were unaware of antecedents
of candidates contesting elections. Such election would be neither free nor fair¨.
These bold words of Justice Shah reflect the status, which the Indian judiciary is
holding in the Indian Constitutional set up. The constitution makers have reposed
great confidence and trust in Indian judiciary by conferring on it such powers as
have made it one of the most powerful judiciary in the world. The Supreme Court
has from time to time indulged in genuine and needful judicial activism and
judicial review. It gave birth to the famous and most needed Doctrine of basic
Structure¨. The need of the changing society encouraged it to formulate and
incorporate various theories, which originated outside India. One of such theory,
which has great practical and social significance in India, is the Doctrine of
proportionality¨. The said doctrine originated as far back as in the 19
th
century in
Russia and was later adopted by Germany, France and other European countries.
By proportionality, it is meant that the question whether while regulating the
exercise of fundamental rights, the appropriate or least restrictive choice of
measures has been made by the legislature or the administrator so as to achieve
the object of the legislation or the purpose of the administrative order, as the case
may be. Under the principle, the court will see that the legislature and the
24

administrative authority maintain a proper balance between the adverse effects
which the legislation or the administrative order may have on the rights, liberties
or interests of persons keeping in mind the purpose for which they were intended
to serve.
The court as far back as in 1952 in State af Madras r V.G.Raw observed: The
test of reasonableness, wherever prescribed, should be applied to each individual
statute impugned, and no abstract standard, or general pattern of reasonableness
can be laid down as applicable to all the cases. The nature of right alleged to have
been infringed, the underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at that time, should all enter the judicial
verdict. In evaluating such elusive factors and forming their own conceptions of
what is reasonable, in all the circumstances of a given case, it is inevitable that the
social philosophy and the scale of values of the judge participating in the decision
would play an important part, and limit to their interference with legislative
judgment in such cases can only be dictated by their sense of responsibility and
self-restraint and the sobering reflection that the Constitution is meant not only for
people of their way of thinking but for all, and the majority of the elected
representatives of the people have, in authorizing the imposition of the
restrictions, considered them to be reasonable¨.
Ever since 1952, the principle of proportionality has been applied vigorously to
legislative and administrative action in India. Thus, administrative action in India
affecting the fundamental rights has always been tested on the anvil of the
proportionality in the last 50 years even though it has not been expressly stated
that the principle that is applied is the proportionality principle.
In Om Kamar r U.O.I, however, the Apex Court evolved the principle of primary
and secondary review. The doctrine of primary review was held to be applicable
in relation to the statutes, statutory rules, or any order, which has force of statute.
The secondary review was held to be applicable inter alia in relation to the action
in a case where the executive is guilty of acting arbitrarily. In such a case Article
25

14 of the Constitution of India would be attracted. In relation to other
administrative actions, as for example punishment in a departmental proceeding,
the doctrine of proportionality was equated with Wednesbury's unreasonable.
In Ðe/h/ Ðere/apment Aathar/ty r M/S UEE E/ectr/ca/s Engg.P.Ltd the
Supreme Court dealt with the judicial review of administrative action in detail.
The court observed: One can conveniently classify under three heads the grounds
on which administrative action is subject to control by judicial review. The first
ground is illegality¨, the second irrationality¨, and the third procedural
impropriety¨. Courts are slow to interfere in matters relating to administrative
functions unless decision is tainted by any vulnerability such as, lack of fairness
in the procedure, illegality and irrationality. Whether action falls in any of the
categories has to be established. Mere assertion in this regard would not be
sufficient. The law is settled that in considering challenge to administrative
decisions courts will not interfere as if they are sitting in appeal over the decision.
He who seeks to invalidate or nullify any act or order must establish the charge of
bad faith, an abuse or a misuse by the authority of its powers. It cannot be
overlooked that burden of establishing mala fides is very heavy on the person who
alleges it. The allegations of mala fides are often more easily made than proved,
and the very seriousness of such allegations demands proof of a high order of
credibility¨.
The administrative orders must also satisfy the rigorous tests of the doctrine of
legitimate expectation¨. The principle of legitimate expectation is at the root of
the rule of law and requires regularity, predictability and certainty in
government`s dealings with the public. For a legitimate expectation to arise, the
decisions of the administrative authority must affect the person by depriving him
of some benefit or advantage which either:
(i) he had in the past been permitted by the decision maker to enjoy and which he
can legitimately expect to be permitted to continue to do until there has been
communicated to him some rationale grounds for withdrawing it or where he has
been given an opportunity to comment; or
26

(ii) he has received assurance from the decision maker that they will not be
withdrawn without giving him first an opportunity of advancing reasons for
contending that they should not be withdrawn.
The procedural part of it relates to a representation that a hearing or other
appropriate procedure will be afforded before the decision is made. The
substantive part of the principle is that if a representation is made than a benefit of
substantive nature will be granted or if the person is already in receipt of the
benefit than it will be continued and not be substantially varied, then the same
could be enforced. An exception could be based on an express promise or
representation or by established past action or settled conduct. The representation
must be clear and unambiguous. It could be a representation to an individual or to
a class of persons¨.
Another effective tool in the hands of judiciary, to test the validity of legislation,
is to invoke the principle of reading down¨. The rule of reading down a
provision of the law is now well established and recognized. It is a rule of
harmonious construction in a different name. It is resorted to smoothen the
crudities or ironing the creases found in a statute to make it workable. In the garb
of reading down, however, it is not open to read words or expressions not found
in it and thus venture into a kind of judicial legislation. The rule of reading down
is to be used for the limited purpose of making a particular provision workable
and to bring it in harmony with other provisions of the statute. It is to be used
keeping in view the scheme of the statute and to fulfill its purposes.
In B.R.Enterpr/ses r State af U.P the Supreme Court observed: First attempt
should be made by the courts to uphold the charged provisions and not to
invalidate it merely because one of the possible interpretation leads to such a
result, howsoever attractive it may be. Thus, where there are two possible
interpretations, one invalidating the law and the other upholding, the latter should
be adopted. For this, the courts have been endeavoring, sometimes to give
restrictive or expansive meaning keeping in view the nature of the legislation.
Cumulatively, it is to sub serve the object of the legislation. Old golden rule is of
27

respecting the wisdom of the legislature, that they are aware of the law and would
never have intended for an invalid legislation. This also keeps the courts within
their track and checks. Yet inspite of this, if the impugned legislation cannot be
saved, the courts shall not hesitate to strike it down. Here the courts have to play a
cautious role of weeding out the wild from the crop, of course, without infringing
the Constitution. The principle of reading down, however, will not be available
where the plain and literal meaning from a bare reading of any impugned of any
impugned provision clearly shows that it confers arbitrary or unbridled
power¨
It must be appreciated that a statute carries with it a presumption of
constitutionality. Such a presumption extends also in relation to a law, which has
been enacted for imposing reasonable restrictions on the fundamental rights. A
further presumption may also be drawn that the statutory authority would not
exercise the power arbitrarily. Further, where a power is conferred upon a higher
authority, a presumption can be raised that he would be conscious of his duties
and therefore will act accordingly. These presumptions have to be rebutted before
an allegation of unconstitutionality of a statute can be sustained.
THE USES OF JUDICIAL REVIEW IN U.S. CONSTITUTIONAL
GOVERNMENT
4
.
Judges use their power of judicial review only in cases brought before them in a
court of law. They do not make hypothetical decisions about the constitutionality
of government actions. And they do not offer advice to government officials
about the constitutionality of their actions outside the proceedings in courts of
law.
Throughout United States history, the Supreme Court has used its power of
judicial review to overturn as unconstitutional more than 150 acts of Congress and
more than 1,000 state laws. The great majority of these invalidation's have
involved civil liberties and rights guaranteed by the U.S. Constitution. Thus, the

4
http://www.ericdigests.org/2003-4/judicial-review.html
28

Supreme Court has protected the rights of individuals in the minority against
abuses by the federal or state governments (Patrick 2001, 182).
In his opinion for the Court in West Virginia v. Barnette (1943), Justice Robert
Jackson explained why judicial review is used to protect minorities against the
possible tyranny of majority rule. He wrote, "The very purpose of a Bill of Rights
was to withdraw certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials and to establish them as
legal principles to be applied by the courts. One's right to life, liberty, and
property, to free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the outcome of
no elections" (Patrick 2001, 364). When their constitutionally guaranteed rights
are violated by the federal or state governments, individuals may appeal to the
Court for relief through its power of judicial review.

















29

CHAPTER 6- Doctrine of Basic Structure and
Judicial Review



Doctrine of basic structure was propounded in Keshvanand Bharti`s case. The
majority held that article 368 even before the 24th Amendment contained the
power as well as the procedure of amendment. The Supreme Court declared that
Article 368 did not enable Parliament to alter the basic structure or framework of
the Constitution and parliament could not use its amending powers under Article
368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic
structure' or framework of the constitution. This decision is not just a landmark in
the evolution of constitutional law, but a turning point in constitutional history.
Doctrine of basic structure gave power to Supreme Court to protect the basic
framework of the constitution. Since then, Judicial Review has acted as an aid to
protect the basic structure of the constitution from the whims and fancies of the
legislature. This proposition was affirmed in recent Judgement of Supreme Court
dated 11.01.2007 rendered in the case in I R Coelho (Dead) by LRs vs. State of
Tamil Nadu and Others, unanimously by all the judges.
For years we had been told that the basic structure of the constitution cannot be
amended. The answer to this question becomes clear with a reading of the First
Amendment. The first amendment was brought about by Pandit Jawaharlal Nehru,
on 10th May 1951 to address judicial decisions and pronouncements, especially in
regard to the chapter on fundamental rights. Nehru was also very clear on the
purpose behind the first amendment. The state wanted to pursue nationalisation,
take away lands from the zamindars and re-distribute them and make special
provisions for the socially and economically backward.
Since the First Amendment, the Ninth Schedule has been relied upon to amend
the constitution multiple times over. The 4th amendment inserted six acts to the
9th schedule. The 17th amendment added 44 more acts. The 29th amendment
30

brought in 2 acts from Kerala. The 34th amendment in 1974 added 20 more land
tenure and land reforms laws enacted by the states. In 1975, Indira Gandhi`s
infamous abuse of executive power leading upto emergency saw the 39th
amendment adding certain central enactments. 1976 saw the 40th amendment
even more to the 9th schedule. The 47th amendment in 1984 added more, and
then in 1990 the 66th amendment gave more protection to land ceiling acts. This
then brings us to the present dispute of altering of basic structure.
The 76th amendment tried to accommodate Tamil Nadu Government`s legislation
to provide for reservations to the level of 69 percent for SC/ST and OBCs. Since
then we have had laws from Sugarcane supporting price to the New Delhi Urban
Zoning Laws all clamoring for an exalted spot in the much abused Ninth
Schedule.
It was the Keshavanand Bharathi case when the Supreme Court for the first time
defined the concept of the basic structure of the constitution. Also if you look at
the acts prior to 1973 in the 9th schedule they were primarily agrarian reforms.
Most of the executive abuse started with Indira Gandhi`s actions prior to
emergency and subsequent vote bank politics that saw absurd laws making their
way to the 9th schedule violating freedom and imposing restrictions.
The judicial review will be an aid to protect the doctrine of basic structure and
provide a fear to the legislature to work on their whims and fancies in following
two ways
CURB THE INVISIBLE AMENDMENTS BY LEGISLATURE:
All Laws passed; even if they are kept in IX Schedule of the Constitution has to
pass through the Basic Structure Doctrine. By making 24th April 1973 as cutoff
date, judiciary admits introduction of a new Chapter called Basic Structure to the
Constitution, to be a touchstone, to test the state action and it is in the nature of an
invisible amendment without inserting any letter to the Constitution.
THEORY OF CHECKS AND BALANCES:
31

Theory of checks and balances are referred to at paragraphs 24 and 75 of the
Judgment and Separation of powers is referred to at Paragraph 35.
The Legislature is also accountable for the actions of the Executive, since
virtually the party in power controls the Executive. But there are no Checks and
Balance on the Judiciary and the theory of Checks and Balance does not cover
equally vital wing. No doubt, the Higher Judiciary may be amenable for
impeachment which is seldom resorted.
Such real issues have to be addressed by the society with open mind. The real
issue lies in political system, which necessitates constant appeasing of vote banks
and unless the same is addressed, the political clan will continue to upload Ninth
schedule or find such other ways and means to outwit.
Basic Structure Doctrine is the reply to the dubious steps adopted to misuse the
Ninth Schedule and the judgment as a whole is laudable.
















32


CHAPTER 7- Judicial Activism



7.1 MEANING:
The term judicial activism is explained in Black`s law Dictionary, Sixty Edition,
[Centennial Edition (1891-1991)] thus, Judicial philosophy which motives
judges to depart from strict adherence to judicial precedent in favour of
progressive and new social policies which are not always consistent with the
restraint expected of appellate Judges. It is commonly marked by decisions calling
for social engineering and occasionally these decisions represent
intrusions in the legislative and executive matters.¨

7.2 DEVLOPMENT OF JUDICIAL ACTIVISM:
The concept of judicial activism which is another name for innovative
interpretation was not of the recent past; it was born in 1804 when Chief Justice
Marshall, the greatest Judge of the English-speaking world, decided Marbury v.
Madison1. Marbury was appointed Judge under the Judiciary Act of 1789 by the
U.S. Federal Government. Though the warrant of appointment was signed it could
not be delivered. Marbury brought an action for issue of a writ of mandamus. By
then, Marshall became the Chief Justice of the Supreme Court having been
appointed by the outgoing President, who lost the election. Justice Marshall faced
the imminent prospect of the Government not obeying the judicial fiat if the claim
of Marbury was to be upheld. In a rare display of judicial statesmanship asserting
the power of the Court to review the actions of the Congress and the Executive,
Chief Justice Marshall declined the relief on the ground that Section 13 of the
Judiciary Act of 1789, which was the foundation for the claim made by Marbury,
was unconstitutional since it conferred in violation of the American Constitution,
original jurisdiction on the Supreme Court to issue writs of mandamus. He
observed that the Constitution was the fundamental and paramount law of the
33

nation and "it is for the court to say what the law is". He concluded that the
particular phraseology of the Constitution of the United States confirms and
strengthens the principle supposed to be essential to all written Constitutions. That
a law repugnant to the Constitution is void and that the courts as well as other
departments are bound by that instrument. If there was conflict between a law
made by the Congress and the provisions in the Constitution, it was the duty of
the court to enforce the Constitution and ignore the law. The twin concepts of
judicial review and judicial activism were thus born.
Judicial creativity may yield good results if it is the result of principled activism
but if it is propelled by partisanship, it may result in catastrophic consequences
generating conflicts which may result in social change. In 1857 when the
American Supreme Court headed by Chief Justice Taney ruled in Dred Scott v.
Sandford that negros were not equal to whites and the rights guaranteed under the
Constitution were not available to them, the decision had accelerated the civil war
between the Northern and Southern States ultimately resulting in the abolition of
slavery and strengthening of the Union.
The function of the American Judiciary was intended to be proscriptive to block
the enforcement of an unjust law or action instead of being prescriptive giving
directions as to how remedial actions should be taken by the Executive. The Fifth
Amendment to the American Constitution mandating inter alia that no one shall
be deprived of life, liberty or property without due process of law was in the
beginning understood as applicable only to the Union. It however was extended
by the Fourteenth Amendment to the States also. As a result of this decision, the
responsibility of the American Supreme Court to interpret the legislative and
executive actions in the light of the due process clause became very great.
The next important development in judicial activism in the United States was
noticed in the first and second Brown cases, when the Court, under the leadership
of Chief Justice Earl Warren, disallowed racial segregation in public schools and
extended that prohibition to all public facilities. The earlier position taken in
Plessy v. Ferguson that blacks could be treated as a separate class but must be
34

provided with equal facilities - separate but equal - founded on racial
discrimination was rejected by the Supreme Court at the risk of disturbing the
institutional comity and delicate balance between the three organs of the State -
the Legislature, the Executive and the Judiciary.
These decisions highlight the judicial statesmanship of Chief Justice Earl Warren,
who declared that his appointment to the Supreme Court was "a mission to do
justice".
After the American Government adopted the policy of affirmative action in order
to improve the economic conditions of the blacks and also remove the sense of
injustice blacks as a group had nurtured, the Supreme Court sustained the
legislative measures enacted in this regard. In H. Earl Fullilove v. Philip M.
Klutzniok a provision in the Public Works Employment Act, 1977 requiring States
to procure services or supplies from businesses owned by minority group
members was upheld declaring that it is a necessary step to effectuate the
constitutional mandate for equality of economic opportunity.
This progressive trend appeared to have received a setback in the very next year,
i.e., 1978 in the Regents of the University of California v. Allen Bakke. Allen
Bakke, a white, who failed to secure admission to the University of California
Medical School challenged a provision by which 16% of the seats were reserved
in favour of disadvantaged members of certain minority races as violative of the
equality clause. The Court although accepted the principle that race-conscious
admission programmes for the purpose of remedying the effects of past
discrimination were legally permissible, sustained the challenge and granted a
declaratory relief. This decision indicates the anxiety of the Supreme Court to
retain its progressive image by not departing from the earlier precedents but at the
same time trying to effectively set at naught the beneficial measures intended for
the advancement of the disabled sections. This was achieved by the court by
putting the blame on the University that it could not produce evidence to
demonstrate that the preferential qualification in favour of the disadvantaged
sections was either needed or geared to promote the stated goal of delivering
35

health care services to the communities currently underserved. Both these cases
are examples of judicial activism: one to render substantive justice and the other
formal justice. Fortunately, this trend came to a halt in 1989 when the Supreme
Court sustained an ordinance adopted by the Virginia City Council under which
non-minority contractors were required to give sub-contracts at least to the extent
of 30% to one or more of the minority business enterprises.
7.3 CONCEPT OF JUDICIAL ACTIVISM: THE VARIOUS THEORIES

As far as the origin and evolution of judicial activism go, there are two theories
behind the whole concept. They are: (i) Theory of Vacuum Filling and (ii) Theory
of Social Want.

Theory of Vacuum Filling

The Theory of Vacuum Filling states that a power vacuum is created in the
governance system due to the inaction and laziness of any one organ. When such
a vacuum is formed, it is against the good being of the nation and may cause
disaster to the democratic set up of the country. Hence, nature does not permit this
vacuum to continue and other organs of governance expand their horizons and
take up this vacuum. In this case, the vacuum is created by the inactivity,
incompetence, disregard of law, negligence, corruption, utter indiscipline and lack
of character among the two organs of governance viz. the legislature and the
executive (Subhash C. Kashyap, 1997). Hence the remaining
organ of the governance system i.e. the judiciary is left with no other alternative
but to expand its horizons and fill up the vacuums created by the executive and
the legislature. Thus according to this
theory, the so-called hyper-activism of the judiciary is a result of filling up of the
vacuum or the void created by the non-activism of the legislature and the
executive.

Theory of Social Want
36


The Theory of Social Want states that judicial activism emerged due to the failure
of the existing legislations to cope up with the existing situations and problems in
the country. When the existing legislations failed to provide any pathway, it
became incumbent upon the judiciary to take on itself the problems of the
oppressed and to find a way to solve them. The only way left to them within the
framework of governance to achieve this end was to provide non-conventional
interpretations to the existing legislations, so as to apply them for greater good.
Hence emerged judicial activism. The supporters of this theory opine that
judicial activism plays a vital role in bringing in the societal transformation. It is
the judicial wing of the state that injects life into law and supplies the missing
links in the legislation. Having been armed with the power of review, the
judiciary comes to acquire the status of a catalyst on change.¨ (Shailja Chander,
1998)
7.4 METHODS
The methods by which judges may engage in judicial activism:
 Overturning legislation passed by an elected legislature, using an interpretation of
the constitution that is not clearly mandated or implied by the constitutional text;
 Ruling against the text or intent of a statute, using an incorrect or overreaching
interpretation;
 Ruling against judicial precedent in a way that is a radical or unjustified departure
from accepted interpretation;
 Holding legislation unconstitutional based on flawed precedent;
 Selectively using obscure case law or foreign law, in preference to what more
pertinent case law or statutory law; and
 Use by state courts of a single subject rule to nullify legislation or state
constitutional amendments, in a questionable manner.

37

7.5 JUDICIAL ACTIVISM IN INDIA:
Judicial activism was made possible in India, thanks to PIL (Public Interest
Litigation). Generally speaking before the court takes up a matter for
adjudication, it must be satisfied that the person who approaches it has sufficient
interest in the matter. Stated differently, the test is whether the petitioner has locus
standi to maintain the action? This is intended to avoid unnecessary litigation. The
legal doctrine 'Jus tertii' implying that no one except the affected person can
approach a court for a legal remedy was holding the field both in respect of
private and public law adjudications until it was overthrown by the PIL wave.
PIL, a manifestation of judicial activism, has introduced a new dimension
regarding judiciary's involvement in public administration. The sanctity of locus
standi and the procedural complexities are totally side-tracked in the causes
brought before the courts through PIL. In the beginning, the application of PIL
was confined only to improving the lot of the disadvantaged sections of the
society who by reason of their poverty and ignorance were not in a position to
seek justice from the courts and, therefore, any member of the public was
permitted to maintain an application for appropriate directions.
After the Constitution (Twenty fifth Amendment) Act, 1971, by which primacy
was accorded to a limited extent to the Directive Principles vis-...-vis the
Fundamental Rights making the former enforceable rights, the expectations of the
public soared high and the demands on the courts to improve the administration
by giving appropriate directions for ensuring compliance with statutory and
constitutional prescriptions have increased. Beginning with the Ratlam
Municipality case the sweep of PIL had encompassed a variety of causes.
Ensuring green belts and open spaces for maintaining ecological balance;
forbidding stone-crushing activities near residential complexes; earmarking a part
of the reserved forest for Adivasis to ensure their habitat and means of livelihood;
compelling the municipal authorities of the Delhi Municipal Corporation to
perform their statutory obligations for protecting the health of the community;
38

compelling the industrial units to set up effluent treatment plants; directing
installation of air-pollution-controlling devices for preventing air pollution;
directing closure of recalcitrant factories in order to save the community from the
hazards of environmental pollution and quashing of a warrant of appointment for
the office of Judge, High Court of Assam and Guwahati are some of the later
significant cases displaying judicial activism.
A five-member Bench of the Andhra Pradesh High Court in D. Satyanarayana v.
N.T. Rama Rao has gone to the extent of laying down the proposition that the
executive is accountable to the public through the instrumentality of the judiciary.
Consistency in adhering to earlier views despite the amendment of the law is an
aspect - though not a brighter one - of judicial activism. Illustrative of this in the
Indian context is the decision of the Supreme Court in Bela Banerjee case in
which even after the Constitution (Fourth Amendment) Act, 1955 specifically
injuncting that no law concerning acquisition of property for a public purpose
shall be called in question on the ground that the compensation provided by that
law is not adequate, the Supreme Court reiterated its earlier view expressed in
Subodh Gopal and Dwarkadas cases to the effect that compensation is a
justiciable issue and that what is provided by way of compensation must be "a just
equivalent of what the owner has been deprived of". Golak Nath case is also an
example of judicial activism in that the Supreme Court for the first time by a
majority of 6 against 5, despite the earlier holding that Parliament in exercise of
its constituent power can amend any provision of the Constitution, declared that
the fundamental rights as enshrined in Part III of the Constitution are immutable
and so beyond the reach of the amendatory process. The doctrine of "prospective
overruling", a feature of the American Constitutional Law, was invoked by the
Supreme Court to avoid unsettling matters which attained finality because of the
earlier amendments to the Constitution. The declaration of law by the Supreme
Court that in future, Indian Parliament has no power to amend any of the
provisions of Part III of the Constitution became the subject-matter of very
animated discussion.
39

7.6 ACCOUNTABILITY OF JUDICIARY:
To whom the judiciary is accountable is the next question. The answer to this is
found in the Constitution itself. A judge of the Supreme Court or a High Court
can be impeached on the ground of proved misbehaviour or incapacity and the
power in this regard is vested in Parliament vide Articles 124(4) and 217(1)(b).
When a judge is impeached, Parliament acts as a judicial body and its members
must decide the guilt or otherwise of the judge facing the indictment objectively
uninfluenced by extraneous considerations. When such a judicial function is
discharged by Parliament, it is highly debatable whether political parties can issue
whips directing their members to vote in a particular manner. An interesting case
study in this regard is the impeachment proceedings against Shri Justice V.
Ramaswamy which ended unsuccessfully.
Judicial creativity even when it takes the form of judicial activism should not
result in rewriting of the Constitution or any legislative enactments.
Reconciliation of the permanent values embodied in the Constitution with the
transitional and changing requirements of the society must not result in
undermining the integrity of the Constitution. Any attempt leading to such a
consequence would destroy the very structure of the constitutional institutions.
Conscious of the primordial fact that the Constitution is the supreme document,
the mechanism under which laws must be made and governance of the country
carried on, the judiciary must play its activist role. No constitutional value
propounded by the judiciary should run counter to any explicitly stated
constitutional obligations or rights. In the name of doing justice and taking shelter
under institutional self-righteousness, the judiciary cannot act in a manner
disturbing the delicate balance between the three wings of the State.
7.7 JUDICIAL ACTIVISM AND LEGISLATIVE ACTIVISM:
Judicial activism can be compared with legislative activism. The latter is of two
types: (i) activist law-making; and (ii) dynamic law-making. Activist law-making
implies the legislature taking the existing ideas from the consensus prevailing in
40

the society. Dynamic law-making surfaces when the legislature creates an idea
outside the consensus and before it is formulated, propagates it. Dynamic law-
making always ordinarily carries with it legitimacy because it is the creation of
the legislators who have the popular mandate. Judges cannot play such a dynamic
role; no idea alien to the constitutional objectives can be metamorphosed by
judicial interpretation into a binding constitutional principle.
Without resorting to a preference in favour of any particular value choice and
thereby inviting criticism of entering into the constitutionally forbidden area of
judicial activism, the court can always draw lines at new angles by dexterously
resorting to innovative interpretative processes.
7.8 CRITICISM:
A common criticism we hear about judicial activism is that in the name of
interpreting the provisions of the Constitution and legislative enactments, the
judiciary often rewrites them without explicitly stating so and in this process,
some of the personal opinions of the judges metamorphose into legal principles
and constitutional values. One other facet of this line of criticism is that in the
name of judicial activism, the theory of separation of powers is overthrown and
the judiciary is undermining the authority of the legislature and the executive by
encroaching upon the spheres reserved for them. Critics openly assert that the
Constitution provides for checks and balances in order to pre-empt concentration
of power by any branch not confided in it by the Constitution.
Every Judge must play an active role in the discharge of his duties as "adjudicator
of disputes". His role as an interpreter of law and dispenser of justice according to
law should not be allowed to be diminished either because of the perceived
notions of the other two wings of the State - the legislature and the executive or
any section of the public. But this cannot be termed judicial activism.
Judges cannot be legislators - they have neither the mandate of the people nor the
practical wisdom to gauge the needs of different sections of society. They are
41

forbidden from assuming the role of administrators. Governmental machinery
cannot be run by the judges. Any populist views aired by judges would undermine
their authority and disturb the institutional balance.
7.9 CONCLUSION:
The new jurisprudence that has emerged in the recent times has undoubtedly
contributed in a great measure to the well-being of the society. People, in general,
now firmly believe that if any institution or authority acts in a manner not
permitted by the Constitution, the judiciary will step in to set right the wrong.
Judicial activism characterised by moderation and self-restraint is bound to restore
the faith of the people in the efficacy of the democratic institutions which alone,
in turn, will activate the executive and the legislature to function effectively under
the vigilant eye of the judiciary as ordained by the Constitution.










42


Chapter 8- Criticism of Judicial Review


It is true that the courts have wide powers of judicial review of Constitutional and
statutory provisions. These powers, however, must be exercised with great
caution and self-control. The courts should not step out of the limits of their
legitimate powers of judicial review. The parameters of judicial review of
Constitutional provisions and statutory provisions are totally different. In
J.P.Bansa/ r State af Rajasthan the Supreme Court observed: It is true that this
court in interpreting the Constitution enjoys a freedom which is not available in
interpreting a statute. It endangers continued public interest in the impartiality of
the judiciary, which is essential to the continuance of rule of law, if judges, under
guise of interpretation, provide their own preferred amendments to statutes which
experience of their operation has shown to have had consequences that members
of the court before whom the matters come consider to be injurious to public
interest. Where the words are clear, there is no obscurity, there is no ambiguity
and the intention of the legislature is clearly conveyed, there is no scope for the
court to innovate or to take upon itself the task of amending or altering the
statutory provisions. In that situation the judge should not proclaim that they are
playing the role of lawmaker merely for an exhibition of judicial valour. They
have to remember that there is a line, though thin, which separates adjudication
from legislation. That line should not be crossed or erased. This can be
vouchsafed by an alert recognition of the necessity not to cross it and instinctive,
as well as trained reluctance to do so¨.
If case the court forgets to appreciate this judicial wisdom, it would undermine the
constitutional mandate and will disturb the equilibrium between the three
sovereign organs of the Constitution. In State (Gart af NCT af Ðe/h/) r Prem Raj
43

the Supreme Court took a serious note of this disturbing exercise when the High
Court commuted the sentence by transgressing its limits. The court observed:
The power of commutation exclusively vests with the appropriate government.
The appropriate government means the Central government in cases where the
sentence or order relates to a matter to which the executive power of the Union
extends, and the state government in other cases. Thus, the order of the high Court
is set aside¨.
Similarly, in Syed T.A. Haqshband/ r State af J&K the Supreme Court observe:
Judicial review is permissible only to the extent of finding whether the process in
reaching the decision has been observed correctly and not the decision itself, as
such. Critical or independent analysis or appraisal of the materials by the court
exercising powers of judicial review unlike the case of an appellate court would
neither be permissible nor conducive to the interests of either the officer
concerned or the system and institutions. Grievances must be sufficiently
substantiated to have firm or concrete basis on properly established facts and
further proved to be well justified in law, for being countenanced by the court in
exercise of its powers of judicial review. Unless the exercise of power is shown to
violate any other provision of the Constitution of India or any of the statutory
rules, the same cannot be challenged by making it a justiciable issue before the
court¨.
The courts are further required not to interfere in policy matters and political
questions unless it is absolutely essential to do so. Even then also the courts can
interfere on selective grounds only. In P.U.C.L r U.O.I the Supreme Court
observed: This court cannot go into and examine the need of Prevention of
Terrorism Act. It is a matter of policy. Once legislation is passed, the government
has an obligation to exercise all available options to prevent terrorism within the
bounds of the Constitution. Moreover, mere possibility of abuse cannot be
counted as a ground for denying the vesting of powers or for declaring a statute
unconstitutional¨.
44

Similarly, in U.O.I. r Internat/ana/ Trad/ng Ca the Supreme Court observed:
Article 14 of the Constitution applies also to matters of government policy and if
the policy or any action of the government, even in contractual matters, fails to
satisfy the test of reasonableness, it would be unconstitutional. While the
discretion to change the policy in exercise of the executive power, when not
trammeled by any statute or rule is wide enough, what is imperative and implicit
in terms of Article 14 is that a change in policy must be made fairly and should
not give the impression that it was so done arbitrarily or by any other ulterior
criteria. The wide sweep of Article 14 and the requirement of every state action
qualifying for its validity on this touchstone, irrespective of the field of activity of
the state, is an accepted tenet. The basic requirement of Article 14 is fairness in
action by the state, and non-arbitrariness in essence and substance is the heartbeat
of fair play. Every state action must be informed by reason and it follows that an
act uninformed by reason is per se arbitrary¨.
Similarly, where a political question is involved, the courts normally should not
interfere. It is also equally settled law that the court should not shrink its duty
from performing its functions merely because it has political thicket. Thus, merely
because the question has a political complexion that by itself is no ground why the
court should shrink from performing its duty under the constitution if it raises an
issue of constitutional determination. Every constitutional question concerns the
allocation and exercise of governmental power and no constitutional question can,
therefore, fail to be political. So large as a question arises whether an authority
under the Constitution has acted within the limits of its power or exceeded it, it
can certainly be decided by the court. Indeed it would be its constitutional
obligation to do so.
In B.R.Kapar r State af T.N the Supreme Court held that it is the duty of
the court to interpret the Constitution. It must perform the duty regardless of the
fact that the answer to the question would have a political effect.

45

Chapter 9 Canc/as/an and
Recammendat/ans
Judicial review is essential for all the governance system as we have seen that it is
an essential tool to check the unscrupulous activities of the administration and the
legislature. It is the tool which has given rise to dynamic element of Judicial
Activism. It is further that the law although may be constitutional when enacted
but with passage of time the same may be held to be unconstitutional in view of
the changed situation. These changed circumstances may also create a vacuum in
the legal system, which has to be suitably filled up by the legislature. If the
legislature fails to meet the need of the hour, the courts may interfere and fill-in
the vacuum by giving proper directions. These directions would be binding and
enforceable in law until suitable legislation is enacted to occupy the field. Thus,
directions given by the court will operate only till the law is made by the
legislature and in that sense temporary in nature. Once legislation is made, the
court has to make an independent assessment of it. In embarking on this exercise,
the points of disclosure indicated by this court, even if they be tentative or ad hoc
in nature, should be given due weight and substantial departure there from cannot
be countenanced. The courts may also rely upon International treaties and
conventions for the effective enforcement of the municipal laws provided they are
not in derogation with municipal laws.
According to English law the Judicial review is done on the grounds mentioned
below and the following procedure are followed: Council of Civil Service Unions
v Minister for the Civil Service[1985] AC 374 Lord Diplock summarised the
grounds for reversing an administrative decision by way of judicial rewiew as
follows:
 Illegality
 Irrationality
 Procedural impropriety
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The first two grounds are known as substantive grounds of judicial review
because they relate to the substance of the disputed decision. Procedural
impropriety is a procedural ground because it aims at the decision-making
procedure rather than the content of the decision itself. The three grounds are
mere indications: the same set of facts may give rise to two or all three grounds
for judicial review.
(A) Illegality
In Lord Diplock's words, this ground means that the decision maker "must
understand correctly the law that regulates his decision-making power and must
give effect to it."
A decision may be illegal for many different reasons. The examples are:
1. The decision is taken by the wrong person (unlawful sub-delegation)
If the law empowers a particular authority, e.g. a minister, to take certain
decisions, the Minister cannot subdelegate this power to another authority, e.g. an
executive officer or a committee.
2. The powers used for the purpose different from the one envisaged by the law
under which they were granted.
3. Error of law or error of fact
The court will quash a decision where the authority has misunderstood a legal
term or incorrectly evaluated a fact that is essential for deciding whether or not it
has certain powers. However, where a term to be evaluated by the authority so
broad and vague that reasonable people may reasonably disagree about its
meaning, it is generally for the authority to evaluate its meaning. So, in R v
Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484, the local authority
had to provide homeless persons with accommodation. The applicants were a
married couple, who lived with her two children in one room and applied to the
local authority for aid. The local authority refused aid because it considered that
the Pulhofers were not homeless and the House of Lords upheld this decision
because whether the applicants had accommodation was a question of fact for the
authority to determine.
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4. Ignoring relevant considerations or taking irrelevant considerations into
account. An example of this can be seen in Wheeler v Leicester City Council,
where the City Council banned a rugby club from using its ground because three
of the club's members went on a tour in South Africa at the time of apartheid
5. Fettering discretion
An authority will be acting unreasonably were it refuses to hear applications or
takes certain decisions without taking individual circumstances into account by
reference to a certain policy.
(B) Irrationality
Under Lord Diplock's classification, a decision is irrational if it is "so outrageous
in its defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question could have arrived at it." This standard is
also known as Wednesbury unreasonableness, after the decision in Associated
Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first
imposed.
(C ) Procedural impropriety
A decision suffers from procedural impropriety if in the process of its making the
procedures prescribed by statute have not been followed or if the 'rules of natural
justice' have not been adhered to.
1. Statutory procedures
An Act of Parliament may subject the making of a certain decision to a procedure,
such as the holding of a public hearing or inquiry, or a consultation with an
external adviser.
[
Some decisions may be subject to approval by a higher body.
Courts distinguish between "mandatory" requirements and "directory"
requirements. A breach of mandatory procedural requirements will lead to a
decision being set aside for procedural impropriety.
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2. Breach of Natural Justice
The rules of natural justice require that the decision maker approaches the
decision making process with 'fairness'.
The rule against bias (nemo judex in re sua) the first basic rule of natural
justice is that nobody may be a judge in his own case.
The right to a fair hearing (audi alteram partem) Whether or not a person
was given a fair hearing of his case will depend on the circumstances and
the type of the decision to be made.
Judicial review in the United States refers to the power of a court to review the
actions of public sector bodies in terms of their lawfulness, or to review the
constitutionality of a statute or treaty, or to review an administrative regulation for
consistency with either a statute, a treaty, or the Constitution itself. At the federal
level, there is no judicial review explicit in the United States Constitution, but the
doctrine has been inferred from that document. At the time of the 1787
Constitutional Convention, five of the thirteen States included some form of
judicial review or judicial veto in their state Constitutions. Delegates at 1787's
Constitutional Convention, including South Carolina's Charles Pinckney, spoke
out against the doctrine of judicial review. The Constitution states in Article III:
"The judicial power of the United States, shall be vested in one Supreme Court,
and in such inferior courts as the Congress may from time to time ordain and
establish....The judicial power shall extend to all cases, in law and equity, arising
under this Constitution, the laws of the United States, and treaties made, or which
shall be made, under their authority....In all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be party, the
Supreme Court shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such regulations as the Congress shall
make."
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Under Indian governance system the judicial review can be done for all the three
administrative, judicial and legislative decisions. Thus it can be seen the
modalities of the judicial review is different in all the three countries. The judicial
review in India is absolutely essential and not undemocratic because the judiciary
while interpreting the constitution or other statutes is expressing the will of the
people of India as a whole who have reposed absolute faith and confidence in the
Indian judiciary. If the judiciary interprets the Constitution in its true spirit and the
same goes against the ideology and notions of the ruling political party, then we
must not forget that the Constitution of India reflects the will of the people of
India at large as against the will of the people who are represented for the time
being by the ruling party. If we can appreciate this reality, then all arguments
against the democratic nature of the judicial review would vanish. The judicial
review would be undemocratic only if the judiciary ignores the concept of
separation of powers and indulges in unnecessary and undeserving judicial
activism¨. The judiciary must not forget its role of being an interpreter and should
not undertake and venture into the task of lawmaking, unless the situation
demands so. The judiciary must also not ignore the self-imposed restrictions,
which have now acquired a status of prudent judicial norm and behaviour¨. If the
Indian judiciary takes these two precautions¨, then it has the privilege of being
the most democratic judicial institution of the world, representing the biggest
democracy of the world¨. A common criticism we hear about judicial activism is
that in the name of interpreting the provisions of the Constitution and legislative
enactments, the judiciary often rewrites them without explicitly stating so and in
this process, some of the personal opinions of the judges metamorphose into legal
principles and constitutional values. One other facet of this line of criticism is that
in the name of judicial activism, the theory of separation of powers is overthrown
and the judiciary is undermining the authority of the legislature and the executive
by encroaching upon the spheres reserved for them. Critics openly assert that the
Constitution provides for checks and balances in order to pre-empt concentration
of power by any branch not confided in it by the Constitution.
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But this can be controlled by effective deliberation by all the sectors of the
governance and make judicial review the best alternative from the better
alternative.

















51


BIBLIOGRAPHY
BOOKS
1. Paul O. Carrese, The Cloaking of Power Montesquieu, Blackstone,
and the Rise of Judicial Activism..: (Chicago: University of Chicago
Press 2003)

2. Duncan Kennedy,. A Critique of Adjudication (Cambridge, MA:
Harvard University Press 1998).

3. Carrol D. Kilgore, Judicial Tyranny: An Inquiry into the Integrity of
the Federal Judiciary (Thomas Nelson). ISBN 978-0840740601
1977.

4. Sterling Harwood,. Judicial Activism: A Restrained Defense
(London: Austin & Winfield Publishers), 167pp. ISBN 1-880921-68-
5. 1996

5. Christopher Wolfe, Judicial Activism, 2nd ed. (Totowa, NJ:
Rowman & Littfield Publishers, Inc 1997..).

6. Kenneth M. Holland, editor,. Judicial Activism in Comparative
Perspective (Palgrave Macmillan 1991).

7. Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University
Press 1988.)

8. Alexander M. Bickel,. The Least Dangerous Branch 2nd ed. (New
Haven, CT: Yale University Press 1986).
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9. Arthur Selwyn Miller, Toward Increased Judicial Activism
(Greenwood Press 1982.).

 Ronald Dworkin,. Taking Rights Seriously (Cambridge, MA:
Harvard University Press 1977).

11. H.L.A. Hart,. The Concept of Law (Oxford: Oxford University Press
1961).
12. Kermit Roosevelt,. The Myth of Judicial Activism: Making Sense of
Supreme Court Decisions (Yale University Press Publishers),
272pp. ISBN 0-300-11468-0 October 15, 2006

13. James B. Kelly,. Governing With the Charter: Legislative And
Judicial Activism And Framer's Intent (Law and Society Series)
(UBC Press Publishers), 336pp. ISBN 0-7748-1212-5 July 30, 2006


14. S. P. Sathe,. Judicial Activism in India (Oxford University Press
Publishers), 406pp. ISBN 0-19-566823-5 December 2003

15. David Barton,. 'Restraining Judicial Activism (Wallbuilder Press
2003).

16. William P. Murchison, Judicial Politics Gone Wild: A Case Study of
Judicial Activism in Texas (Washington Legal Foundation), 11pp
1982.

17. H.M Seervai, Constitutional Law of India, (4
th
edition )

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18. S.R.Bhansali, The Constitution of India

19. M.P Singh, The Constitution of India

20. Dr. D.D. Basu , Introduction to the Constitution of India

21. J.N.Pandey, Constitution of India, (Central Law Agency, 2005)












































54




Tab/e af cases:

S.no. Case Citation
1. Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)
2. Little v. Barreme 1804

3. Associated provincial picture houses ltd. v.
Wednesbury corporation
KB at .229.ALL ER p. 682

4. Golaknath v. state of Punjab AIR 1967 SC 1643
5. Keshavananda Bharti v. state of Kerala AIR 1973 SC 1461
6. I R Coelho (Dead) by LRs vs. State of
Tamil Nadu and Others
AIR 2007 SC 861
7. U.O.I v K.M.Shankarappa (2001) 1 SCC 582
8. P.U.C.L v U.O.I (2004) 2 SCC 476.
9. State of Madras v V.G.Row
10. Om Kumar v U.O.I (2001) 2 SCC 386
11. Delhi Development Authority v M/S UEE
Electricals Engg.P.Ltd
2004 (3) SCALE 565
12. B.R.Enterprises v State of U.P (1999) 9 SCC 700
13. J.P.Bansal v State of Rajasthan 2003(3) SCALE 154
14. State (Govt of NCT of Delhi) v Prem Raj (2003) 7 SCC 121
15. Syed T.A. Haqshbandi v State of J&K (2003) 9 SCC 592
16. U.O.I. v International Trading Co (2003) 5 SCC 437
17. B.R.Kapur v State of T.N (2001) 7 SCC 231
18. Ram Jawaya v State of Punjab

AIR 1955 SC 549
19. P. Kannadasan v State of T.N

(1996) 5 SCC 670.
20. Minerva Mills vs. UOI (1980) 3 SCC 62
21. . Hylton v. Virginia 3 U.S. 171 (1796)
22. Little v. Barreme 2 Cranch 170 (1804)
23. West Virginia v. Barnette 319 U.S. 624 (1943)
24. Dred Scott v.
Sandford
19 How. 393 (1857)
25. Plessy v. Ferguson 163 U.S. 537 (1896)
26. H. Earl Fullilove v. Philip M.
Klutznik
448 U.S. 448 (1980)
27. Regents of the University of California v. Allen
Bakke
438 U.S. 265 (1978)




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