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In many countries with written constitutions, there prevails the doctrine of judicial review. It means that the constitution is the supreme law of the land and any law inconsistent therewith is void. In this paper the author is describing the scope and limits of judicial review.
Judicial review means the reconsideration of a degree or sentence of an inferior Court, but these days the concept has undergone great changes and the literal meaning of judicial review is no longer valid. The power to judicially review any decision is an extraordinary power vested in a superior court for checking the exercise of power of public authorities, whether they are constitutional, quasi-judicial or governmental. It is only available for exercise when a person who is aggrieved by such a decision brings it before the court.
It is common knowledge that while discharging executive functions, public authorities take various decisions for which they should be allowed sufficient space for a proper exercise of discretion. It is keeping this in mind that, by and large it is only the decision making process that is actually subjected to judicial review.
Legislature, executive and judiciary under the Constitution are to exercise powers with checks and balances, but not in water-tight rigid mould. In India, by basis of Arts. 32 and 136, the Supreme Court can exercise the power of judicial review. Similarly, under Art. 226 and 227 High Courts have a power of judicial review.
Judicial review in India comprises of three aspects:
(1) Judicial review of legislative action,
(2) Judicial review of administrative action,
(3) Judicial review of judicial decisions.
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. The court in its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens’ rights of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime.
The limits on the power of judicial review is a recurring theme in the evolution of our Constitution. In some of its distinguished judgments, the Supreme Court has defined the outline of sovereign power as distributed amongst the three branches of Government namely, the legislature, the executive and the judiciary.
There is a compelling case that the power of judicial review delegated to our superior courts in various provisions of the Constitution itself is as much by the command of the people. But people who are in favor of this view argues that judicial inquiry of the validity of legislation is a necessary protection against the oppression of majorities, that the judges do not check the people, the Constitution does and since the Constitution itself is popularly ratified, there is nothing undemocratic in the power of judicial review.
The decision of the Honorable Supreme Court of India in Kesavananda Bharti’s case marked and explained the term which is called ‘basic structure’ to measure whether the Parliament is seeking to destroy the Constitution, by using its powers under art. 368, which was so far, understood to be a power, the exercise of which was not subject to Judicial scrutiny. Basic Structure is not contained in one or more provisions of the Constitution of India, but it is supposed to be the sum total of the core of our Constitution.
Also in the same case the honorable court has interpreted the scope and meaning of judicial review. “...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 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 Art. 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.”
In Minerva Mills vs. Union of India, it was observed by the Supreme Court that the clauses of art. 31-C as introduced by the Constitution (42nd Amendment) Act, 1976, which required to take away the power of judicial review were unconstitutional. However, judicial review was not held to be part of the basic structure of the Constitution by the majority in this decision, although Bhagwati J in his minority decision traced the power of judicial review to Arts. 32 and 226 and observed it to be a part of the basic structure of the Constitution, and if taken away by a constitutional amendment would amount to ‘subversion of the Constitution’.
Justice Ahmadi referred the case State of Madras v. V. G. Row, where Chief Justice Patanjali Shastri held that:
“…. Our Constitution contains express provision for judicial review of legislation as:
to its conformity with the Constitution,…. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the 'fundamental rights', as to which this court has been assigned the role of a sentinel on the qui vive. While the court naturally attaches great weight to the legislative judgment, it may not desert its own duty to determine finally the Constitutionality of an impugned statute.’
Justice Ahmadi then went on to examine whether the power of judicial review vested in the High Courts and in the Supreme Court under Arts. 226, 227 and 32 is part of the basic structure of the Constitution: It is to be presumed that those who work the Constitution, those who compose the legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the legislature without any kind of compulsion laid down in the Constitution. Similarly, if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court. In so far as the Constitution gives supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself.
Golaknath v. State of Punjab was the first time that limitations on the amending power of Parliament under Article 368 were recognized. The majority judgment was written by Chief Justice Subba Rao proceeding on the premise that:
(a) Article 368 contained merely the procedure, not the power of amendment;
(b) The power of Amendment lay in Entry 97of List I and
(c) As a consequence of the above, a Constitutional Amendment would be law within the meaning of Article 13.
So, from the above arguments and references we came to the conclusion that the power of judicial review is a part of the basic structure of the Constitution, permanent even by a constitutional amendment as affirmed by the Supreme Court in Keshvananda Bharti. And, representative democracy as an expression of the people’s will, speaking through their elected representatives is a non-negotiable principle of our republican agreement which itself is the product of an exercise of the unbroken sovereign power.
The Supreme Court of India as the guardian of democratic morality will without a doubt remember that the exercise of constitutional power is persistent in the final analysis by the intellectual integrity, independence and fearlessness of judges.
The author can be reached at: firstname.lastname@example.org / Print This Article
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ISBN No: 978-81-928510-0-6