Courts and Judicial Review

Judicial review is a principle or a legal doctrine or a practice whereby a court can examine or review an executive or a legislative act, such as law or some other governmental or administrative decision, and determine if the act is incompatible with the constitution.

In some countries, like the United States, France and Canada, judicial review allows the court to invalidate or nullify the law or the act of the legislature or the executive if they are found to be contrary to the constitution. In the United Kingdom, judicial review powers are restricted; the courts do not have authority to nullify or invalidate legislation of the Parliament. Likewise, there may be other countries where courts may have different kind of restrictions and may review only one branch.

Separation of Powers

Most democratic countries have adopted in their Constitutions partial or complete system of separation of powers horizontally among the three branches of the government or of the state - the legislative, the executive, and the judiciary. The doctrine of separation of powers ensures that each branch has distinct powers and responsibilities, based on organisational scheme of the Constitution.

Furthermore, Constitution provides checks and balances so that no one branch exercises its supremacy over the others or misuse the powers provided to them.In this way, each branch puts a check on the other whenever there is an encroachment or conflict of powers among them and thereby preventing any concentration of powers in one branch. It is believed that the system of separation of powers may have few advantages:

  1. It allows for liberty as it avoids concentration of powers in one branch
  2. It promotes efficiency
  3. It facilitates and enriches democratic discussion through the powers of checks and balances of each branch.

The powers of judicial review allow judiciary to safeguard the checks and balances and to ensure the separation of powers of the other two branches of the government. 

Another related concept is the doctrine of division of powers between the federal or centre and states or provinces. Federal government has law making powers different than that of states or provinces. For example, the subject matters on national defense and foreign affairs often fall with the federal government, and matters of prisons and direct taxes may fall with the state or provincial governments. The doctrine of division of powers stipulates and delimits subject matters or items on which the federal government and provincial/state governments have powers to make laws. The scheme may also involve common items on which both governments may have powers to make laws. Courts have judicial review powers to declare any law as unconstitutional if it is enacted by breaching the demarcation.

India, which is based on the parliamentary form of government, follows the system of separation of powers among the three branches of the government as prescribed in the Indian Constitution. The executive branch consists of the President, the Prime Minister and the bureaucracy. The legislative branch includes both houses of Parliament: the Lok Sabha and the Rajya Sabha. In the judiciary, the Supreme Court is the final authority for interpreting the constitution; judiciary is quiet independent of the other two branches.

Scope of Judicial Review in India

Judicial review is one of the essential features of the Indian Constitution; it has helped preserve the constitutional principles and values and the constitutional supremacy. The power of judicial review is available to the Supreme Court and the High Courts in different states in the matters of both legislative and administrative actions.

Largely, this power has been applied for the protection and enforcement of fundamental rights provided in the Constitution. To a lesser extent, judicial review has also been used in matters concerning the legislative competence with regards to the Centre-State relations. With respect to judicial review on matters of executive or administrative actions, courts have employed doctrines such as 'proportionality', 'legitimate expectation', 'reasonableness', and the 'principles of natural justice'.

Essentially, the scope of judicial review in courts in India has developed with respect to three issues:

  1. Protection of fundamental rights as guaranteed in the Constitution
  2. Matters concerning the legislative competence between the centre and states
  3. Fairness in executive acts

Individual and Group Rights

Article 13(2) of the Constitution of India provides that: "The State shall not make any law which takes away or abridges the rights conferred by this Part (Part III - Fundamental Rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void." B. R. Ambedkar, the chairman of the Constitution drafting committee of the Constituent Assembly, has termed this provision as the 'heart of the Constitution'. This Article provides explicitly the powers of judicial review to the courts in the matters of fundamental rights.

Furthermore, Article 32 offers the Supreme Court the power to enforce fundamental rights, and provides one the right to move the Supreme Court for the enforcement of those rights. From this article, the Supreme Court derives authority to issue directions or order or writs in the nature of:

  1. habeas corpus, i.e., to order the release of person is unlawfully detained
  2. mandamus, i.e., to order to a public authority to do its duty
  3. prohibition, i.e., to prevent a subordinate court from continuing on a case
  4. quo warranto, i.e., to issue directive to a person to vacate an office wrongfully occupied
  5. certiorari, i.e., to remove a case from a subordinate court and get the proceedings before it

Like Article 32, Article 226 is a parallel provision for High Courts in states and allows one to institute similar writs in the High Courts for the enforcement of
fundamental rights.

Courts, through its judicial review practice, have liberalized the doctrine of locus standi (right to appear before or petition the court) for the enforcement of fundamental rights of those who lack access to courts due to the reasons of poverty or social and economic disabilities. This method led to the development of Public or Social Action Litigation (PIL or SAL) whereby any public spirited person can petition or write letters to courts on behalf of the human rights violation victims or aggrieved parties. 

Centre-State Relations

Judicial review has also been used in matters concerning the legislative competence with regards to the Centre-State relations. Article 246 of the Constitution provides that the Parliament has exclusive powers to make laws with respect to matters itemized in the 'Union List' (List 1 of the Seventh Schedule of the Constitution). It provides further that both the Parliament and the Legislature of any State have powers to make laws with respect to matters enumerated in the 'Concurrent List' (List III of the Seventh Schedule of the Constitution).

With respect to the States, it provides that the Legislature of any State has exclusive power to make laws with respect to matters listed in the 'State List' (List II of the Seventh Schedule). This Article delivers clear division of law-making powers (division of powers) as well as room for intersection between the Centre and the State. Judicial review helps demarcate the legislative competencies and ensures that Centre does not exert its supremacy over the state matters and likewise states do not encroach upon matters within the ambit of the Centre.

Fairness in Executive Actions

In matters of executive or administrative actions, judicial review practice of courts have often employed doctrines like 'principles of natural justice', 'reasonableness', 'proportionality', and 'legitimate expectation'.

There is a Latin phrase audialterampartem, which literally means 'listen to the other side'. This phrase is an established principle in the Indian law practice and was applied by the Supreme Court in several cases including the landmark decision of Maneka Gandhi v. Union of India.

Her passport was confiscated by the governmental authorities without giving her any chance of prior hearing. Invoking its judicial review powers in administrative matters, the Supreme Court held that in the matter of confiscation of passport a hearing should have been given to the petitioner in the interest of the principles of natural justice. Consequently, a hearing was given and the passport was returned to her. This is an example where the court adopted the principle of post decision-hearing, in situations of urgency where prior hearing is not feasible, and recognized that a chance of hearing cannot be debarred completely.

To deal with the questions of secrecy and related inefficiency and corruption in the administration, courts have adopted the judicial method of requiring disclosure of reasons in support of any order or decision delivered by the administration. This requirement holds good even when a statue or legislation does not provide for this requirement. Courts have emphasized that the right to provide reasons is an inherent part for justice delivery. Furthermore, judicial method of disclosure requirements deters the practice of arbitrary action by the officials and offers legal safeguard to the victims. Also, by notifying the aggrieved about the reasons, such disclosure satisfies the requirements of the principles of natural justice.

The courts have often used the principle of reasonableness in most cases that involve state action. The realm of contract law offers an example. Whenever
states are parties to any contract, the courts attempt to distinguish such contracts with that of contracts entered between private individuals or parties. In that, private contracts concern personal interest; state contracts concern public good and public interest and is expected to act reasonably and not with freedom of discretion.

Another principle frequently utilized by courts in administrative law, especially in service matters, is the principle of proportionality. Essentially, judicial review offers safeguards to the aggrieved against any sentence or punishment that is disproportionate and burdensome. For example, Supreme Court, in a case, has held that the quantum of penalty or punishment sentenced by a court martial on any army persons should not be disproportionate to the offence.

Basic Structure

The Supreme Court has extended the practice of judicial review to the matters concerning the constitutional amendments by developing the doctrine of the basic structure of the Constitution. Article 368 confers power to the Parliament to amend the Constitution: "by way of addition, variation or repeal any provision of this Constitution" This Article in its wordings does not provide any limitation on the power of the Parliament to amend the Constitution.

Article 13(2) states that "the State shall not make any law which takes away or abridges the rights conferred by this Part (Part III - Fundamental Rights)." Article 13(2) limits Parliament's amending authority in matters of fundamental rights. In order to overcome this restriction, in 1971, the Parliament adopted the 24th Amendment to the Constitution altering Articles 13 and 368 in a way that allowed itself with unlimited powers of amendments including authority to amend the fundamental rights provisions.

The landmark 1973 Supreme Court case of Keshavanda Bharathi v. State of Kerela discussed the question about the unlimited constitutional amendment powers of the Parliament and established the doctrine of the basic structure or feature of the constitution. This doctrine invalidates any constitutional amendments that destroys or harms a basic or essential feature of the Constitution, like secularism, democracy and federalism.

Supreme Court has also held judicial review to be the basic structure or feature of the Constitution; as a result, it can nullify any constitutional amendment that abolishes or disregards judicial review in issues concerning to fundamental rights of citizens.