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The Doctrine of Judicial Review And Its Scope In India Writ Legislation, Administrative And Constitu

The Judicial Review[1] means overseeing by the judiciary of the exercise of power by other co-ordinate organs of the government with a view to ensuring that they remained confined to the limits drawn upon their powers by the constitution. In England, since there is no written constitution and the parliament is supreme, there is no judicial review of legislation enacted by Parliament.

An English court cannot declare an act of Parliament ultra vires. This theoretical position remains unchanged even after the enactment of European Communities Act, 1972, which makes the community law directly enforceable in the United Kingdom, and the Human Rights Act, 1998 which require the English courts to point out that an act of parliament is not compatible to European Charter on human rights. The courts however cannot declare an act of parliament unconstitutional.

Britain however extended the practice of judicial review of legislations to colonies such as India whose constituent acts enacted by British parliament laid down the limits of legislative power vested in the colonial legislatures. India therefore experienced the judicial review of legislations as well as executive acts since the days of British rule. Since there was no Bill of Rights in the constituent acts, the scope of Judicial Review was limited. The courts in India followed the policy of maximum judicial restraint.

The judicial attitude in countries ruled by Britain was to interfere with legislative acts only if they transgressed the limits drawn upon their powers. Judicial attitude was influenced by the theory of parliamentary supremacy and the courts denied that they had anything to do with the policy or principles beyond what was clearly laid down by the words.

The Indians saw in a Bill of Rights an assurance to the minorities of their rights and a safeguard against arbitrary rule. The constitution of India 1950 contained the bill of rights in Part III under the caption Fundamental Rights and declared that any law which takes away or abridges any of the fundamental rights shall be void. However vesting such power of Judicial Review in the High Court and Supreme Court, maximum care was taken to prevent the courts in India from being more than auditors of legality.

The rights were defined and restrictions upon them were also defined with precision so as to leave the least discretion with the courts. The makers of Indian constitution purposely avoided using the term “due process of law” so as not to allow the courts to invalidate laws might be disliked by the judges. The debates in the constituent assembly show that they wanted a limited judicial review. There are two models of judicial review . one is technocratic model in which judges act merely as technocrats and hold a law invalid if it is ultra vires the powers of legislature.

In the second model the court interprets the provision of the constitution liberally and in the light of the spirits underlying it keeps the constitution abreast of the times through dynamic interpretation. A court giving new meaning to a provision so as to suit the changing social or economic conditions or expanding the horizons of rights of individual is said to be an activist court. Judicial activism can be positive as well as negative. A court engaged in altering the power relations to make it more equitable is said to be positively activist and a court using its ingenuity to maintain the status quo in power relations is said to be negatively activist.

The decision of the US Supreme Court in Dredd Scott or Lochner v. New York[2] were examples of negative judicial activism whereas the decision of that court in Brown v. Board of Education[3] is an example of positive activism.

Methodology
In S. R Bommai v. Union of India[4], J. Sawant on behalf of other judges as well held that, there is difference in the nature and scope of the power of judicial review in the administrative law and the constitutional law. While in the field of administrative law, the courts power extends to legal control of public authorities in exercise of their statutory power and therefore not only to preventing excess and abuse of power but also to irregular exercise of power, the scope of judicial review in the constitutional law extends only to preventing actions which are unconstitutional or ultra vires the Constitution[5].

The areas where the judicial power, therefore can operate are limited and pertain to the domain where the actions of the Executive or the legislation enacted infringe the scheme of the division of power between the executive, the legislature and the judiciary or the distribution of powers between the States and the Centre.

Where, there is a Bill of Rights as under our Constitution, the areas also cover the infringements of the Fundamental Rights. The judicial power has no scope in constitutional law beyond examining the said infringements. He also contended that likewise, the doctrine of proportionality or unreasonableness has no play in constitutional law and the executive action and legislation cannot be examined and interfered with on the anvil of the said doctrine.

In this research we have addressed the following issues and tried to find solutions for them:
  • Evolution of Judicial Review in India
  • Part I: Emerging trends of Judicial Review in Administrative actions
  • Part II: Judicial review of constitutional amendments in India
  • Part III: Judicial Review of Legislative measures\

Part I

Judicial review of Administrative Actions

Judicial review of administrative action has been a traditional function of the courts. the courts followed maximum judicial restraint during the Second World War. Liversidge v. Anderson[6] is an example of such judicial restraint. After the war however they became more vigilant and demanded that although they would not substitute their decision for that of the decision of the administrative authority, they would require the administrative authority to satisfy them that all relevant matters have been considered and no irrelevant matter had been taken into consideration.

This is known as Wednesburys principle.[7] With the advent of the welfare state and increase in the powers of the executive, the courts started asking for stricter standards for the reasonableness from the executive. The proportionality test has been imported in some areas in recent years.[8] In India the courts have always required proportionality test where restrictions are imposed on fundamental rights.

It is one thing for a court to critically examine the exercise of discretionary powers by the administrative authorities and another for it to undertake scrutiny of the acts of functionaries such as president of India. It was generally believed that the proper checks up on the exercise of such power ought to be political rather than legal. Abuse of power by the president who acts on the advice of council of ministers, has to be checked by the political process. In parliamentary democracy such political checks are inbuilt. For example, a proclamation of emergency under article 352 or the proclamation for dismissal of the state government under article 356 of the constitution is required to be placed before both the houses of parliament and ratified by each of the houses.

For fifty years these powers were used in Partisan manner by ruling Party at the centre. The check of parliamentary approval became a ritual since the ruling Party had a large majority in each house. The courts however did not entertain petitions against such dismissal since the satisfaction of the president as to necessity of such an action was considered to be non-justiciable. In 1977, the Supreme court opened the door slightly for Judicial Review on limited grounds of ultra vires and melafide exercise of power, though it did not strike down the impugned action.

It was in S.R. Bommai v. Union of India[9] that Supreme Court by a majority of six judges against three held that the presidents satisfaction under article 356 of the constitution was justifiable. While three judges held that there were not judicially manageable standards for determining the validity of the Presidents action, six judges said that the Presidents decision could be reviewed by the court. To the question whether court would apply the same standards for the determination of the validity of action of any other administrative authority the majority judges responded differently, some holding that the standards would apply while other preferring to give greater presumption of validity to the Presidents action.

The executive organ acts in the following situations:

  1. Firstly, Statute based activities i.e. when there is a statute regarding that and it is the duty of executives to work as per the law
  2. Secondly, General functions of governance, i.e. when the executives work beyond the statute
  3. Thirdly, Arbitrary actions/ whimsical/ which are bad in law, etc

The Statute based actions provide remedies in statute itself i.e. statutory remedy but in “general functions of governance” there is no statutory remedy provided. Even all these arbitrary actions can be remedied by executive action or judicial review.

Judicial review of executive actions is undertaken by Judiciary.

The case laws in respect of this concept are:
Tata Cellular limited v. Union of India [1994 SC]
Facts: The DePartment of Telecommunications, Government of India, invited tenders from Indian Companies with a view to license the operation of Cellular Mobile Telephone Service in four metropolitan cities of India, namely, Delhi, Bombay, Calcutta and Madras. Cellular mobile telephone means a telecommunication system which allows two-ways tele- communication between a mobile or stationary telephone to another mobile or stationary unit at a location.

It may be within or outside the city including subscriber-cum-dialling and international subscriber-cum-dialling calls. The last date for submission of tender was 31-3-1992. The tender process was in two stages. First stage involved technical evaluation and the second involved financial evaluation.

Those who were short-listed at the first stage were invited for the second stage.

Thirty bidders Participated initially at the first stage. The first Tender Evaluation Committee was constituted consisting of senior officers of the DePartment of Telecommunications.

A Telecom Commission was constituted on 6-4-1989 comprising a Chairman and four full-time Members:
  1. Member (Production)
  2. Member (Services)
  3. Member (Technology)
  4. Member (Finance) It short-listed 16 companies, 12 of which were eligible without any defect. However, in the case of 4 the Committee recommended condonation of certain defects.

Those four were:
  1. BPL Systems and Projects Limited
  2. Mobile Telecommunication Limited
  3. Mobile Telecom Services
  4. Indian Telecom Limited Between 19-5-1992 and 27-5-1992 the recommendations were submitted to the Telecom Commission

The matter came up for discussion among the members of the Commission. On 27-5- 1992 the Telecom Commission accepted the recommendations of the Technical Evaluation Committee. The Chairman recommended that the short-list of bidders, the recommendations of the Tender Evaluation Committee and the proposal for financial bids be placed before the Selection Committee at the earliest.

It requires to be noted, at this stage, that a Selection Committee also described as Apex/High-Powered Committee comprising the Principal Secretary to the Prime Minister and three other Secretaries to the Government of India had been set up by the Minister for final evaluation of the bid.

Mr B.R. Nair, a Member (Budget) of Telecom Commission came to be appointed as Member (Services) on 29-5-1992. It appears the Selection Committee met a number of times and discussed the matter with the Minister. He submitted an interim report on 16-7-1992. During this time the Committee not only de novo exercised but also modified the short-list prepared by the Technical Evaluation Committee and approved 14 companies.

The Selection Committee also met the representatives of equipment manufacturers for the selection of the licensees. On 20-7-1992, the revised financial bid and the short-list approved by the Telecom Commission were put up before the Minister for approval. On 24-7-1992, further meetings of the Selection Committee were held and the financial bid document was revised. On 28-7-1992, the Selection Committee submitted its final report. Two bidders, namely, M/s Ashok Leyland Ltd. and M/s Vam Organics Ltd. were dropped from the short-list of 16 bidders. On 29- 7-1992, Mr Nair was appointed as Director General of Telecommunications. He was authorised to exercise all powers of Telecom Authority under Section 3 of the Telegraph Act. The Minister approved the issue of financial bids with modification to the short-listed companies as recommended by the Selection Committee on 29-7-1992. The approval took place on 30-7-1992.

On 30-7-1992, the financial tenders were issued. It contained seven criteria which had been approved by the Selection Committee. However, no marks were earmarked for any of the criteria. 17-8-1992 was the cut-off date for financial bid document. On this date the bids received from 14 companies were opened and read out to the bidders, who were present. As per the conditions, the quoted rental ceilings and the cities for which the bids were made, were read out.

Another DePartmental Tender Evaluation Committee consisting of senior officers examined the financial bids of the 14 short-listed companies. It adopted some parameter and devised the marking system which was not done by the Selection Committee. On 2-9-1992, the second Tender Evaluation Committee submitted its recommendations. However, the matter was referred back to it for a fresh gradation on the basis of 21.75 per cent interest rate in respect of 13 per cent rate which it had earlier adopted. On 7-9-1992 the recommendations were re-submitted.

The Adviser operations recommended only 4 operators based on the evaluation and financial bids. Bharati Cellular was recommended as a first choice for all the four cities, BPL as the second choice for both Delhi and Bombay, Tata Cellular and Skycell as second choice for Calcutta and Madras. This was done since in his view no other bidder qualified for licence. On 10-9-1992 the Chairman of the Tender Evaluation Committee directed that all the documents and recommendations be sent to the Selection Committee for its consideration and for making final recommendations to the Government.

When the file was put up to the Minister on 9-10-1992 he made three important notings:

  1. In view of the time taken by the High- Powered Committee the selection process be completed by DoT internally;
  2. Only one Party may be granted licence for one city; and
  3. The actual selection of the licensee should be made primarily on the consideration of rentals and the marks obtained in respect of foreign exchange inflow and outflow criterion and experience of the licensee.
On 9-10-1992, in accordance with this note, a list of 8 short-listed companies was prepared. The reasons for rejection of the 6 companies were recorded. The Chairman, in his final recommendation, made on 9-10-1992, noted that Bharati Cellular, Modi Telecom and Mobile Telecom did not fulfil the conditions provided in clause 2.4.7 of Chapter 11 of the financial bid which requires that foreign exchange requirement be met by foreign collaborator.

With regard to rejection of 6 bidders Sterling Cellular was rejected because some investigation against them was pending before the CBI. However, the Minister reversed that decision as to the exclusion of Sterling Cellular and Indian Telecom Limited from the list of finally approved bidders and directed that the same be considered.

On 10-10-1992, the list was recast. Sterling Cellular was provisionally selected for the city of Madras. On 12-10-1992, the selected bidders were notified of their provisional selection subject to the acceptance of rentals and other terms as might be advised.

It is under these circumstances, four writ petitions were preferred bearing CWP Nos. 4030, 4031, 4032 and 163 of 1992.

The petitioners were:
  1. India Telecomp (Petitioner in CWP No. 4030 of 1992)
  2. Adino Telecom Limited (Petitioner in CWP No. 4031 of 1992)
  3. Kanazia Digital System (Petitioner in CWP No. 4032 of 1992)
  4. Hutchison Max Telecom Private Limited (Petitioner in CWP No. 163 of 1992)

It was urged before the High Court of Delhi that the decision of the Government in selecting 8 Parties, two for each of the cities, was bad on the following grounds-

  1. bias
  2. invoking certain hidden criteria
  3. irrelevant considerations
  4. bypassing the Selection Committee
  5. selecting otherwise under qualified Parties
  6. marketing system which was evaluated by the second Technical Evaluation Committee for grading various bidders

So manipulated thereby a criterion was evolved which was tailormade to knock out the petitioners before the High Court or resulting in knocking out of the petitioner in the case of India Telecomp Limited and Adino Telecom Limited. Hutchison Max Telecom Private Limited urged that it was the highest in the gradation. Its bid was not considered for a technical and flimsy reason; in that, the compliance statement required to be furnished with the bids was not complete. Kanazia Digital System contended that its technical bid was left out on certain wrong premise.

Lengthy arguments were advanced before the High Court. On a consideration of those arguments the writ petitions of Adino Telecom and Kanazia Digital System were dismissed. CYR No. 4030 of 1992 filed by India Telecomp was allowed. A mandamus was issued to consider afresh the grant of licence to the petitioner therein, after evaluating marks for the rental on the basis the figures of deposits from subscribers given for Delhi and Bombay were accumulated.

Similarly, CWP No. 163 of 1992 in which the petitioner was M/s Hutchison Max Telecom Private Limited, was allowed. A direction was issued to reconsider the case of the petitioner, on the basis the compliance filed by it, as it was in order. To that extent the order granting licence to 8 Parties (2 for each of the cities) was set aside. This judgment was pronounced on 26-2-1993.

After the judgment of the Delhi High Court, the matter was reconsidered in the light of the said judgment. A revised list of provisionally selected bidders was prepared on 27-8-1993.

That is as follows:
Position as on 12-10-1992Position as on 27-8-1993 Bombay Bombay Bharati Cellular Hutchison Max BPL Projects & Systems Bharati Cellular Delhi Delhi India Telecomp Ltd. BPL Projects & Systems Tata Cellular Pvt. Ltd. Sterling Cellular Ltd.
Calcutta Calcutta
Mobile Telecom Ltd. India Telecomp Ltd.
Usha Martin Telecom Usha Martin Telecom
Madras Madras
Skycell Mobile Telecom Ltd.
Sterling Cellular Ltd. Skycell

It could be seen from the above that TataCellular which was originally selected for Delhi has been left out.

Therefore, it has preferred SLP (Civil) Nos. 14191-94 of 1993. M/s Hutchison Max Private Limited has apprehended that if the judgment of the Delhi High Court is not accepted it is likely to be displaced from the provisional selection list for Delhi. Indian Telecom Private Limited preferred SLP (C) No. 17809 of 1993. India Telecomp preferred SLP (C) No. 14266 of 1993.

Mr Soli J. Sorabjee, learned counsel for the appellant, Tata Cellular, argues that this is a two-staged tender. In the first stage, the evaluation had to be made on the basis of technical and commercial considerations. The bidders short-listed at the first stage would then compete in the second stage, namely, the financial bid. Chapter 11 contains general conditions framed into the bid. In paragraph 2.4.7 the financial projection of the proposed cellular mobile service was prescribed.

The notes mentioned three criteria:
  1. Entire foreign exchange requirement shall be met by the foreign collaborator.
  2. Minimum reliance on Indian public financial institutions will be preferred.
  3. Debt equity ratio should not be more than 2: 1.

18. It is borne out by records that out of the seven criteria in evaluating the financial bid, six parameters alone were taken into consideration. For rental parameter the evaluation committee took into account the equity rental ceiling, security deposits installation and other charges indicated in the bid which were the same in the case of all the bidders.

This was done in order to arrive at an equated or effective figure of monthly rental for each bidder. It is not open to the Committee to totally ignore this criterion when the Chairmans note dated 9-10-1992 specifically states that the companies would be asked to comply with the conditions of financial bid in clause 2.4.7 of Chapter II while granting licences.

When this is the position, strangely, the appellant is informed as follows:

Ministry of Communication (Telecom Commission) New Delhi - 11 000 1 No. /92-TM Dated: 27-8-1993 To, (Kind attention Subject: Tender No. 44-21/9 1 -MMC (FIN) for franchise for Cellular Mobile Telephone Service for Bombay, Delhi, Calcutta and Madras.

Sir, Kindly refer letter of even No. dated 12-10- 1992 informing you that you have been provisionally selected for franchise for providing cellular mobile telephone service at .... on a nonexclusive basis.

2. The matter has been reconsidered in the light of the judgment delivered by the High Court of Delhi in this case. M/s .......... have now been provisionally selected for franchise for providing cellular mobile telephone service at in place of ........... on a non-exclusive basis. The other franchise selected for is M/s with M/s of.......as their foreign Partner.

3. The details of the rental, deposits and other terms fixed for the franchise will be intimated to you shortly.

4. Kindly get necessary formalities completed by 30-9-1993. Yours faithfully, (S.K. Garg) DDG (TM)

The second ground of attack is bias. In that, Mr B.R. Nair, Member of Production in the Telecom Commission, who was appointed as Member (Service) on 29-5-1992, Participated. From the Adviser the file went to Member (Service). The note of Mr Nair is dated 21-5-1992. He agreed with the recommendation of TEC that four firms which had some deficiencies should be included in the short-list. They were BPL Systems and Projects, Mobile Telecom, Mobile Communications and Indian Cellular. Therefore, BPL was approved by Mr Nair. Admittedly, Mr Nairs son is employed in BPL Systems and Projects.

The High Court in dealing with the allegations of bias made against Mr Nair held: Nexus of father and son in the chain of decision-making process is too remote to be of any consequence. It is quite interesting to note that of the four companies which were having some deficiencies in their tender documents in the first stage and were recommended for consideration by the first TEC, three companies including BPL made it to the final list of eight. Plea of bias is not alleged in the selection of other two companies. In the circumstances it is not possible for us to hold any allegation of bias made against Nair.

The High Court concluded:
We do not think in a case like this the mere fact that Nair was Part of the machinery to make selection was enough to show that there could be reasonable suspicion or real likelihood of bias in favour of BPL.

This finding is wrong. Mr Nairs Participation from the beginning would constitute bias. In support of this submission, the learned counsel relies on Manak Lal v. Prem Chand1 (and Particularly the passage occurring at SCR p.587), J. Mohapatra & Co. v. State of Orissa 2 (SCR at p. 334: SCC p. 112) and Ashok Kumar Yadav v. State of Haryana (SCC paragraph 16 at p. 440 and 441). The English decision on this aspect which will support the contention is: Metropolitan Properties Co. (EG. C.) Ltd. v. Lannon.

In law, there is no degree of bias. Even otherwise in the implementation of the judgment of the High Court of Delhi, if this appellant is to be eliminated, it ought to have been afforded an opportunity. Had that been done it would have pointed out several factors, namely, the omission to consider relevant material, namely, parameter seven, the prejudice caused by the award of marks after the bids were opened. The DoT was obliged to disclose the maximum marks for each criterion at the threshold of the 1 1957 SCR 575: AIR 1957 SC 425 2 (1984) 4 SCC 103, 112: (1985) 1 SCR 322 3 (1985) 4 SCC 417: 1986 SCC (L&S) 88 4 (1968) 3 All ER 304, 310: (1969) 1 QB 577: (1968) 3 WLR financial bid in the interest of transparency and to ensure a non-arbitrary selection.

In the case of most of the bidders the foreign exchange is not met by the foreign collaborator. In the case of India Telecomp the debt equity ratio is 1 : 1. Their total project cost is stated to be Rs 101 crones. This means Rs 50.50 crores represent equity and the other Rs 50.50 crores represent external commercial borrowing. In this case, the entire foreign exchange is not met by the foreign collaborator. Therefore, there is a breach of the fundamental condition of the bid. This would constitute a disqualification which is a bar at the threshold. Had this condition been strictly applied Bharati Cellular, Modi Telecom, Mobile Communications, Hutchison Max, Skycell Communication would have been eliminated. Likewise, Sterling Cellular also did not fulfil this condition.

It was a mandatory condition that a foreign collaborator indicated at the first stage-of tender, could not be changed thereafter. Inter alia on the strength of credentials of foreign collaborators the bid is considered. If a change is allowed it would amount to technical violation of the bid. Yet in the case of BPL one of its foreign collaborators, namely, McCaw Cellular withdrew from the collaboration. In spite of this, the breach was disregarded. The bidder had to famish proof that he had obtained the approval of foreign collaboration or filed application before the competent authority. BPL had not even filed an application before the competent authority yet its tender was considered and approved. On the very same ground, while Ashok Leyland had been disqualified, equally it should have been applied to BPL.

Sterling Cellular had been rejected at various stages of consideration on the ground that there was criminal complaint/investigation pending against it. The Minister had also agreed but reversed that decision on the last day and directed its consideration for inclusion in Madras on the purported ground that Madras was the least popular of the stations and that if any delay is caused due to complications on account of CBI investigation would have the least adverse effect for lack of competition. The High Court noted that no material had been brought on record to show that there was any complaint against Sterling Cellular. But, factually, to the knowledge of the DoT, a criminal case stood registered against Sterling Cellular in June 1993, before making the final selection. The DoT, instead of rejecting Sterling Cellular on that ground, upgraded it from Madras to Delhi in disregard of the decision of the Minister.

Any foreign collaboration has to be approved by an inter-ministerial committee called FIPB. No proposal for foreign collaboration could be evaluated by the TEC without receiving the approval from the FIPB. Even under the tender documents the bidders were required to show that they had applied for such approval.

Having regard to all these, the selection is vitiated by arbitrariness or unfairness.

Mr Harish Salve, learned counsel, appearing for India Telecomp attacks the selection as arbitrary on the following three grounds:

  1. Bypassing the Apex Committee and entrusting to a Committee which did not follow the norms.
  2. Certain hidden criteria which were not disclosed earlier, were applied not as parameters, but for elimination.
  3. There are five glaring errors in the selection. One such error is in the case of Sterling Cellular. It supports its bid on the strength of the foreign exchange that may be obtained from foreign tourists. This is something incomprehensible.

Elaborating these points it is urged that after short- listing, the selection committee did not select at all. The counter-affidavit filed on behalf of the Government of India does not mention that there was a delay by Apex Committee, as held by the High Court. On the contrary, the facts disclose there was no delay whatever.

Two hidden criteria were postulated:
  1. Persons having less than one lakh experience will not be considered.
  2. If two bidders have the same collaborator in relation to foreign exchange that bid will not be considered.
These criteria were evolved after 18-8-1992. When one looks at the conditions of tender, paragraph 2.2.1 talks of subscribers capacity. That does not mention about the nature of experience. Equally, paragraph 2.4.5 makes no mention about one foreign collaborator for each bidder. In the case of Bharati Cellular it was having only eighty-one thousand lines. The criterion of 80 thousand GSM was prescribed only to favour Bharati Cellular.

If no change of foreign collaborator is allowed at the stage of financial assessment after the technical committee has passed its bid, in the case to permit such a change to BPL, is clearly arbitrary.

Indian Telecom was excluded because it has the same foreign collaborator, namely, Telecom Malaysia. However, in the case of Bharati Cellular, that test was not applied. Its collaborator is Talkland Vodaphone. The same Vodaphone has been the collaborator with Mobile Telecom. This would amount to adopting double standards.

As against BPL the attack is as under:

  1. BPL did not apply to SIA/FIPB but to Reserve Bank of India (RBI).
  2. The foreign collaborator was changed in the middle, as submitted above, inasmuch as McCaw Cellular withdrew. The joint venture is gone when McCaw was given up.
  3. Mr Nair was biased in favour of BPL.
  4. Total marks awarded are five. The idea is indigenous equipment whereas what has been done by BPL is to quote higher customs duty.

Insofar as Sterling Cellular is preferred for Delhi that again is arbitrary. There is a CBI inquiry pending against it. Secondly, the foreign exchange is sought to be procured by international roaming and it is awarded 10 marks out of 10.

Mr Ashoke Sen, learned counsel, appearing for the Indian Telecom submits, firstly, the limits of judicial review in the matter of this kind will have to be examined. Such limits could be gathered from Sterling Computers Ltd. v. M & N Publications Ltd.5 and Union of India v. Hindustan Development Corpn. which lay down the methods of reaching conclusion.

Generally speaking, in entering into contracts, the public authority is not like a private person. The question to be asked is, have the guidelines been laid down, if so laid down, have they been observed? In this case, Indian Telecom was originally allotted Delhi. By reason of reconsideration pursuant to the judgment of the High Court of Delhi, it has now been allotted Calcutta. This is wrong.

In clause 7 of the General Conditions it is stipulated that there can be no change of foreign collaborator. In clause 13, a certificate requires to be produced. In a number of cases no such certificate has been produced. Paragraph 2.4.5 of Chapter 11 of General Conditions lays down one of the parameters is the experience of foreign operating Partner. In the case of Bharati Cellular, SFR France Company has no experience. Talklands sole function is service. Therefore, its experience should not have been added. In paragraph 1.4 the nature of services is listed. These are not the services offered by Talkland. Hutchison Max did not produce any certificate likewise Bharati Cellular.

The argument on behalf of Ashok Leyland, petitioner in Transferred Case No. 49 of 1993 is that it was an eligible bidder but has never been communicated the reason as to why it came to be rejected. On 29-9-1992, the Committee records that reasons must be given. Yet no reasons are furnished to the petitioner. Even though the Tender Evaluation Committee held the petitioner to be qualified yet its bid had been rejected without communicating any reason whatever. In Mahabir Auto Stores v. Indian Oil Corpn. (SCC at p. 763, paragraph 18) this Court has held that there is an obligation to communicate the reasons.

Mr. Koura, learned counsel appearing for Bharati Cellular, in opposing the arguments advanced on behalf of the appellants, submits that service operation should not be read in a narrow sense. In telephone industry there could be operation as well as service. While defining the service, relying on paragraph 2.1 is wrong because services are defined in paragraph 1.4 whereas paragraph 21 refers only to obligations of licensee. Besides, the services are also essential, they should be regarded as a Part of operation.

Mr. G. Ramaswamy, learned counsel, appearing for Skycell states that his client has been awarded Madras city. It is submitted that in the absence of mala fides the individual marking system should not have been 5 (1993) 1 SCC 445 6 (1993) 3 SCC 499 7 (1990) 3 SCC 752interfered with as far as foreign exchange is concerned. In the case of his client regarding the foreign exchange sourcing, inflow is more than the out flow.

Mr Anil B. Divan, learned counsel appearing for Mobile Telecom Services submits that though this respondent supports the judgment of the High Court, insofar as it is allowed the writ petition filed by Hutchison Max, the same ought to be reconsidered. The bid of Hutchison Max was rejected since it had filed an incomplete compliance report.

The High Court has chosen to accept the bid of Hutchison Max on four grounds:

  1. The approach of the DePartment was hyper-technical.
  2. Compliance statement is akin to verification in a pleading. It cannot be placed on a higher pedestal than verification.
  3. The DePartment ought to have allowed rectification since it was purely a mistake unintentionally made.
  4. Inasmuch as the DePartment had allowed a favorable treatment in the case of Indian Telecom Private Limited and Tata Cellular the same treatment ought to have been accorded to Hutchison Max as well.

These findings are attacked on the following grounds. The tender documents both technical and commercial bid as well as the financial bid clearly lay down the manner of compliance. Clause 3 of the technical bid states, in the event of the compliance report not being enclosed with the offer, the offer shall not be considered. Equally, in relation to financial bid, Chapter I states that any offer received after the due date and time shall be rejected. The various other clauses also postulate a strict compliance.

If, therefore, the bid is incomplete the offer ought to have been rejected. Hence, there is no question of the DePartment of Telecommunication condoning the defect. If the view of the High Court is to prevail it would amount to allowing a post tender modification on a select basis, that is, on the basis whether the mistake was intentional or unintentional. Where the DePartment has chosen to reject, the High Court cannot sit in judgment.

To state it is like verification of pleading is to overlook that the pleadings are governed by the verification. That is not the case here. The comparison with Indian Telecom and Tata Cellular is also incorrect. In the case of Indian Telecom there is an unconditional compliance. Only in the covering letter a view has been expressed about the economic viability of the services and the bidders preference. Hence, it cannot be contended that the bid was conditional, in any manner. Similarly, Tata Cellular was not accompanied in this regard.

The allegation against this respondent that the foreign exchange requirement has not been met is incorrect. The documents filed by the respondent clearly show that there is a surplus of approximately three crore rupees, available from the foreign collaborator, in the first year.

The allegation of India Telecomp that the bidder was responding on the basis of one Party per city and the proposal for licence for a period of 20 to 25 years is factually incorrect. Equally, to state that this respondent quoted a lower customs duty and thereby got higher marks is incorrect. The financial bid of the respondent shows that this had taken customs duty at 95 per cent for the first year when the backlog of the equipment is to be imported. For the subsequent years, the projection was made on a reduced customs duty in view of the announced policy of the Government to reduce customs duty and to bring them in line with international levels.

The argument that there is a common collaborator of Bharati Cellular and Mobile Telecom Services proceeds on the footing that Bharati Cellular is collaborating with Talkland. That Talkland has a service privately in agreement with Vodaphone Group. Thus, Vodaphone is the common foreign collaborator of Bharati Cellular and Mobile Telecom. This is not correct. Mobile Telecom has its foreign Partner for the purpose of setting up a leading cellular network cooperator of U.K., namely, Vodaphone. Vodaphone as network operator is the owner of Vodaphone Cellular Network. It is responsible for the setting up of the network in U.K. where cellular network operator can also be a service provider.

Vodaphone has been issued a licence as the cellular network operator under Section 7 of the U.K. Telecommunications Act of 1984. It is known as a public telecommunication operator. Vodaphone has about 30 service providers in U.K. including Talkland. It has no equity in Talkland. There are no common directors on the boards of two companies. Vodaphone is the foreign collaborator of Mobile Telecom. It has no collaboration agreement with Bharati Cellular.

In regard to Bharati Cellular it has only a collaboration agreement with Talkland which is a mere service provider.

Arguing on behalf of Sterling Cellular Mr K. Parasaran, learned counsel submits that the technical competency and capacity to execute the contract by this respondent with its joint venture Partner is not in doubt. Sterling Cellular was short-listed by Technical Evaluation Committee itself. It was amongst the 12 tenderer short-listed in the first list.

The joint venture collaborator of Sterling, namely, Cellular Communication is a reputed international company having large-scale operation in U.S.A. As regards the foreign exchange inflow and outflow it is submitted that Sterling Cellular has projected its stand that the foreign exchange inflow will be from foreign tourists and business travelers visiting the city of Delhi. The expression international roaming has been used in relation to such foreign tourists and business travellers.

Internationally, cellular phones are used by two categories of persons:
  1. subscribers residing in the city who would use the phone on a permanent basis,
  2. the tourists and business travellers visiting the city who would use the phone on a temporary basis. Inasmuch as the foreign tourists and foreign business travellers make the payment in foreign currency it will be a source of foreign exchange. What is required under the tender condition is the projection of foreign exchange inflow and outflow relating to the cellular phone contract.

This means inflow in foreign exchange as a result of the operation of cellular phone system. Hence, the bearing from tourists and business travellers is a very relevant consideration. Like this respondent, Hutchison Max selected for the Bombay city also projected for the foreign exchange openings by the use of cellular phone by tourists and business travellers. The argument that the foreign tourists and business travellers are not likely to use cellular telephone is not correct since the calls made through the cellular telephones are not only cheaper but also available as a 24 hours companion.

That, of course, is a greater facility. In the note made by the Minister it has been mentioned that the respondent has undertaken to be bound by conditions contained in the tender documents to the effect that the entire foreign exchange requirement shall be met by the foreign collaborator. In fact, the foreign collaborator has also confirmed this.

As regards the allegation of CBI inquiry, it is submitted that the learned Judges of the High Court perused the note of the Chairman, Telecom Commission. It was only after this the Court held that there were no strictures against holding company of SCL by the name Sterling Computers Limited, in M&N Publication Ltd. v. MTNL.

It was further held that it appears to have been punished for no sin of it. There was no CBI inquiry on the date of the above judgment. It was after the judgment dated 10-7-1993, the FIR was filed which has been allowed to be proceeded with by way of directions in petition under Section 482 of the Criminal Procedure Code. This Court in Erusian Equipment & Chemicals Ltd. v. State of WB. has laid down that pending investigation blacklisting cannot be permitted. The said 1 ratio will apply to this case.

44. Mr K.K. Venugopal, learned counsel appearing for Hutchison Max submits that this respondent was rejected by the committee. That was questioned in the writ petition. The High Court directed reconsideration of its bid. With regard to compliance statement it was stated that the company agrees to fully comply with all paragraphs of Chapter II of the General Conditions and Chapter V : Tariffs of Document No. 44-21/91-MMC(FIN) without any deviation and reservation. No doubt, there is a failure, in the first instance, to state about compliance with Chapters 11 and IV This is an accidental omission. It amounts to a clerical error as laid down in Moffett, Hodgkins & Clarke Co. v. City of Rochester[10].

If it is a mistake in relation to non- essential or collateral matter it could always be condoned. The Privy Council in Mohd. Ejaz Husain v. Mohd. Iftikhar Husain[11] has held that it is always a matter of form and not of substance. Other argument is advanced that there is a defect in the compliance statement.

45. The alternate submission is, the question of error does not arise since the compliance statement was filed on 11-9- 1992 while the contract came to be awarded only on 12-10- 1992. In such a case the question would be what is the scope of judicial review?

The court could interfere in the following three categories of cases
  1. Quasi-judicial 8 (1992) 4 DLT 24 9 (1975) 1 SCC 70: (1975) 2 SCR 674: 178 US 1108 (1899)1
  2. Administrative, for example, price fixing
  3. Award of contracts Here, the matter is technical in relation to award of contract. Judicial review does not mean the court should take over the contracting powers. The parameters for interference in such matters would be:
    (i) Mala fide
    (ii) Bias
    (iii) Arbitrariness to the extent of perversity. If none of these is present, the court should not interfere. It must be left to the authorities. The contrary arguments advanced on behalf of the appellants against this respondent are not tenable.

46. Mr F.S. Nariman, learned counsel appearing for BPL in the foremost argues by way of preliminary submissions that three questions will arise at the threshold.
  1. The scope and ambit of judicial review with regard to decisions bona fide arrived at in tender cases (pre- contract).
  2. The applicability of judicial review in these cases.
  3. The interference under Article 136 of the Constitution where the power of judicial review has been exercised by the High Court under Article 226.
It is submitted that the reasonableness in administrative law means to distinguish between proper use or improper use of power. The test is not the courts own standard of reasonableness. This Court has reiterated this proposition in G.B. Mahajan v. Jalgaon Municipal Council[12]. There is a possibility of fallibility inherent in all fact- findings. To insist upon a strict compliance with each and every tender document is not the law. This Court upheld the waiver of technical, literal compliance of the tender conditions in Poddar Steel Corn. v. Ganesh Engineering Works[13].

In the present case, the short-listing at the first stage, the allotment of cities at the second stage and the selection of franchisees qua cities at the third stage were after evaluating the financial bid by a collectivity of persons at different level. Therefore, possibility of elimination of arbitrariness is conceived in the system itself. Further, the High Court has analysed properly and come to the proper conclusion.

That being so, this Court will not interfere by exercising its powers under Article 136 of the Constitution of India. The argument about hidden criteria would not affect or benefit this respondent directly or indirectly. Even otherwise, the hidden criteria cannot be impugned. There is no mention of any Particular criterion on the basis of which the selection was to be made. At the second stage what was required to be kept in mind were the parameters mentioned in paragraph 2.4.

The criteria for selection to each of the four cities had to be provided inter alia because the tenderer did not tender for one city alone but for more than one. The allegation of bias on the Part of Mr Nair is without substance.

It is submitted, whenever disqualification on the ground of personal involvement is alleged:
  1. the person involved (for example related) must be the decision-maker;
  2. there must be sufficient nexus between the decision- maker and the Party complaining in order to justify the real likelihood of bias.
48. After a decision is reached the standard of proof of bias is higher as laid down in Vassiliades v. Vassiliades[14]. This decision has been referred to by this Court in Ranjit Thakur v. Union of India [15]. The learned counsel after referring to the relevant case law submits that cases of bias and ostensible bias had to be regarded in the light of their own circumstances. In this case Mr Subhash Nair is only one of the officers in BPL, which has over 5500 employees and 89 officers of his rank in 27 offices all over India. Mr Nair was not the decision-maker at all.

He was one of the recommending authorities. His involvement in the approval and selection of the tender was indispensable. He was originally the Member (Services) on 29-5-1992. Thereafter he became Director General, Telecommunications by a notification issued by 28-7-1992 by the President of India. As such, he was to exercise all powers of Telegraph Authority under Section 3(6) of the Act. Therefore, the High Court was right in applying the doctrine of necessity. This doctrine has come up for discussion in Charan Lal Sahu v. Union of India [16].

Whatever it may be, Indian Telecom cannot take the point of bias. It took the chance and benefit of being short-listed despite the knowledge of Mr Nairs involvement. Equally, Tata Cellular did not raise the allegation of bias in the High Court. In fact, it opposed the plea of bias.

No doubt, this respondent dropped McCaw as a foreign collaborator. That does not amount to change where one out of two or three collaborators is dropped. This foreign collaborator was required as Condition No. 7 only in financial bid documents not in tender documents. This respondent submitted financial bid on 17-8-1992 showing only two of the collaborators. McCaw was not shown as that was already dropped out. Therefore, the High Court rightly held that McCaw was not taken into consideration in awarding marks for foreign Partners experience.

The object of the first stage was not to allot the franchise but to short-list the Parties.

The learned Solicitor General produced the copies of the relevant documents in the file and took us through the same. It is submitted, after outlining the process of evaluation in the second stage six parameters were adopted by the Committee consisting of Telecom experts who are none other than the senior officers of the DePartment of Telecommunications.

The parameters are as follows:
  1. Quoted rental ceiling
  2. Project financing plan
  3. Foreign Exchange inflow and outflow
  4. Projects plan for cellular equipment within the country including the tie-up with the proposed Indian manufacturers.
  5. Experience of foreign operating Partner and
  6. Financial strength of parameters/Partner companies.
These parameters were assigned marks. The evaluation report including the ranking arrived at by the tender evaluation committee was then put up to the Telecom Commission for further consideration and selection. Due to technical considerations not more than two bidders per city could be accommodated. Paragraph 14 of the bid conditions provided that each bidder must furnish a declaration in a specified form to the bid documents. The declaration given by Hutchison Max was complete. However, its bid had to be rejected on merits in spite of securing high marks.

M/s India Telecomp secured the second place for Calcutta. Inasmuch as they had the same foreign Partner as Usha Martin which secured a higher place than India Telecomp, it was rejected and the choice went to the next bidder in the marking list. After the above considerations were taken into account, the remaining companies were selected which led to the writ petition. Pursuant to the High Court directions the matter was reconsidered and selections have been made as was done earlier.

The principal objection of the Union of India is that the High Court was not justified in scrutinising the tendering process in such detail. The minute examination is unwarranted because the High Court cannot constitute itself the selecting authority.

However, no appeal is preferred, as otherwise, it would have further delayed the introduction of very valuable communication facility in this country. Beyond that, it has no Particular interest as to who is selected. However, it becomes necessary to answer the allegations made about the actual selection and whether there was any bias on the Part of the selection committee. The selection process was dictated by the, exigencies of the situation. It is a question, as to what one could settle for, in the given circumstances.

The Government was embarking upon a totally new technology project, for the first time. At that stage, it was impossible to predict what kind of response will there be. Therefore, it is impossible to predicate the cut-off limits which could be set or which conditions have to be relaxed or softened. The allegation of bias, it is held, must be a case of reasonable possibility or likelihood of bias. In this case, there is no such reasonable likelihood. Mr B.R. Nair was not influenced directly, or, in any other manner, subtle or otherwise. He did not, in fact, Participate in any of the significant or crucial stages in the selection process.

Even otherwise, the relationship is not such as to give reasonable apprehension of bias. In support of this argument reliance is placed on Manak Lal and Ashok Kumar Yadav v. State of Haryana 3 (SCC p. 441, para 16). As regards the parameter in relation to project financing it was kept in view by taking into account the estimated number of subscribers, installation charges, monthly rental, any other charges etc. They were included in the competition. The other parameters of the bidders were treated on the same footing as regards this parameter is concerned. Concerning rental, it was specifically averred in the counter before the High Court that the other charges had also been included while calculating quoted rental.

It is not correct to contend that Talklands experience is not relevant. In the United Kingdom the operation of Mobile Cellular System is handled by the network cooperator and a proper service provider, acting together. The licensee is required to perform the combined functions of a network operator as well as service provider. The duties and functions of a licensee are not limited to making available the services as defined. In fact, the principal obligation of the licensee is expressed generally in paragraph 2. 1. 1. A reading of the other clauses makes it clear that it is incumbent upon the licensee to provide services. Therefore, the experiences of a network operator and the service provider are both important and relevant.

In the case of Bharati Cellular the attack is that the cut-off came to be reduced to 80,000 subscribers to accommodate it. Bharati Cellular mentioned in its tender, as on 31-12-1991, the name of SFR France which had 80,000 subscribers. By 31-12-1991, it would have got increased to more than one lakh. In August 1992 when the bids were submitted SFRs line of experience could reasonably be expected to be more than one lakh. SFR France had a GSM licence. Having regard to these facts, it would not be an unreasonable estimate, for the experts, to conclude that Bharati Cellular was having experience of over one lakh lines.
It is alleged that the debt/equity ratio of Skycell has not been properly taken. Skycell ratio was 1.5 and was correctly assigned 3 marks.

Tata Cellular alleges that Bharati Cellular, Mobile Telecom, Sterling and Skycell have breached note (ii) under para 2.4 which provides that minimum reliance on Indian Public Financial Institutions will be preferred. The bid profess made distinction between loans from Public Financial Institutions and Banks. The criticism of Tata confuses this requirement with loan from Banks. The criterion, it is submitted, was correctly applied.
In the evaluation of process open market purchase was left out of consideration.

Since Skycell bid for Madras showed that they had projected their operations in Madras for initial years, would be below profitable levels. In such a case, no dividend would have to be paid to the foreign collaborators. Accordingly, it was concluded that the foreign exchange inflow position was better.

International roaming is a relevant consideration. From the tender document it will be clear that it provides for facility of roaming to visitors. Roaming facility for a tourist is available in the GSM system. Even if this condition has been relaxed in favour of certain bidders, there is nothing wrong. Reliance is placed on G.J. Fernandez v. State of Kamataka[17].

With regard to the foreign collaborator of BPL there was no change. French Telecom is one of the foremost in the world in this technology. It remained as foreign collaborator of BPL. Dropping out of McCaw did not violate the bid conditions which were really aimed at preventing a new and, therefore, unknown collaborator being introduced at the financial bid stage. The second Technical Evaluation Committee did not see this as a violation. In any event, where the judgment of the High Court had been given effect to and a proper evaluation has been done, no interference is warranted.

Mr Soli J. Sorabjee, learned counsel, in his reply, would submit that as regards the scope of judicial review the American cases cited by Mr K.K. Venugopal would not apply. As laid down in State of U.P v. Maharaja Dharmander Prasad Singh18 judicial review is confined to decision- making process.

This being an administrative action the scope of judicial review could be gathered from Council of Civil Service Unions v. Minister for Civil Service19.

In Secy. of State for Education and Science v. Tame side Metropolitan Borough Council 20 the law has been stated as to when subjective satisfaction could be interfered with under judicial review. This Court also had occasion to deal with similar contracts and stated the law relating to judicial review in Sterling Computers Ltd. v. M&N Publications Ltd.5 (SCC pp. 455 and 458, para 19) and then again, in Union of India v. Hindustan Development Corpn.

Tata Cellular vs. Union of India, (1994) 6 SCC 651, Supreme Court held the need to find a right balance between administrative discretion to decide the matters on the one hand, and the need to remedy any unfairness on the other.
  1. The modern trend points to judicial restraint in administrative action.
  2. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
  3. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible.
  4. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
  5. The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
  6. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.

I have very few illusions about my own limitations as a judge and from those limitations I generalize to the inherent limitations of all appellate courts reviewing rate cases. It must be remembered that this Court sees approximately 1262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation.
  • Reliance Airport development private limited v. Airport Authority of India [2006], this case laid down the “Wednesburys principle” which states what constitutes reasonable and what constitutes unreasonable.
    Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment proclaimed:
    Judicial review is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power.

    Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say:
    If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3- 1991.

    Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the courts ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.

  • Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.

    In Chief Constable of the North Wales Police v. Evans Lord Brightman said:
    Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.

    In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Ord. in the following terms :
    This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first practiced at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner (p. 1160).

  • In R. v. Panel on Takeovers and Mergers, ex p Datafin plc[18], Sir John Donaldson, M.R. commented:
    An application for judicial review is not an appeal. In Lonrho plc v. Secretary of State for Trade and Industry[19], Lord Keith said: Judicial review is a protection and not a weapon.
    It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In Amin, Re[20], Lord Fraser observed that:
    Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made.... Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.

  • In R. v. Panel on Take-overs and Mergers, exp in Guinness plc, Lord Donaldson, M.R. referred to the judicial review jurisdiction as being supervisory or longstop jurisdiction. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing the abuse of power, be itself guilty of usurping power.
The duty of the court is to confine itself to the question of legality.

Its concern should be:
  1. Whether a decision-making authority exceeded its powers
  2. committed an error of law,
  3. committed a breach of the rules of natural justice,
  4. Reached a decision which no reasonable tribunal would have reached or,
  5. Abused its powers.

Therefore, it is not for the court to determine whether a Particular policy or Particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case.

Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
  1. Illegality: This means the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it.
  2. Irrationality, namely, Wednesday unreasonableness.
  3. Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home DePartment, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, consider whether something has gone wrong of a nature and degree which requires its intervention.

Part II

Judicial Review of Legislative measures

Constitutional Provisions for Judicial Review:

The power of judiciary to review and determine the validity of a law or an order may be described as the powers of Judicial Review. It means that the constitution is the supreme law of the land and any law inconsistent therewith is void through judicial review. This provision has been stated under Article 13 of the constitution of India.

The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution. Parliament is not supreme under the Constitution of India. Its powers are limited in a manner that the power is divided between centre and states.

Moreover the Supreme Court enjoys a position which entrusts it with the power of reviewing the legislative enactments both of Parliament and the State Legislatures. This grants the court a powerful instrument of judicial review under the constitution.

Both the political theory and text of the Constitution has granted the judiciary the power of judicial review of legislation.

The Constitutional Provisions which guarantee judicial review of legislation are Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitution legislation.
Article 13 declares that any law which contravenes any of the provisions of the Part of Funda­mental Rights shall be void.
Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
Article 251 and 254 states that in case of inconsistency between union and state laws, the state law shall be void.
Article 246 (3) ensures the state legislatures exclusive powers on matters pertaining to the State List.
Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.

The legitimacy of any legislation can be challenged in the court of law on the grounds that the legislature is not competent enough to pass a law on that Particular subject matter; the law is repug­nant to the provisions of the constitutions; or the law infringes one of the fundamental rights.

Articles 131-136 entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state, between the states and the union; but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.

There is no express provision in our constitution empowering the courts to invalidate laws, but the constitution has imposed definite limitations upon each of the organs, the transgression of which would make the law void. The court is entrusted with the task of deciding whether any of the consti­tutional limitations has been transgressed or not.

Extensive Concept of Judicial Review in India:

The Supreme Court has been vested with the power of judicial review. It means that the Supreme Court may review its own Judgment order. Judicial review can be defined as the competence of a court of law to declare the constitutionality or otherwise of a legislative enactment.

Being the guard­ian of the Fundamental Rights and arbiter of the constitutional conflicts between the Union and the States with respect to the division of powers between them, the Supreme Court enjoys the compe­tence to exercise the power of reviewing legislative enactments both of Parliament and the States legislatures.

The power of the court to declare legislative enactments invalid is expressively pro­vided by the Constitution under Article 13, which declares that every law in force, or every future law inconsistent with or in derogation of the Fundamental Rights, shall be void. Other Articles of the Constitution (131-136) have also expressively vested in the Supreme Court the power of reviewing legislative enactments of the Union and the States.
The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the Constitution (1976), in several ways. But some of these changes have been repealed by the 43rd Amendment Act, 1977. But there are several other provisions which were introduced by the 42nd Amendment Act 1976 not repealed so far.

These are:
  1. Arts. 323 A-B. The intent of these two new Articles was to take away the jurisdiction of the Supreme Court under Art. 32 over orders and decisions of Adminis­trative Tribunals. These Articles could, however, be implemented only by legislation. Art. 323A has been implemented by the Administrative Tribunals Act, 1985;
  2. Arts. 368 (4)-(5). These two Clauses were inserted in Art. 368 with a view from preventing the Supreme Court to invalidate any Constitu­tional Amendment Act on the theory of basic features of the Constitution.
These Clauses have been emasculated by the Supreme Court itself, striking them down on the ground that they are violative in the two basic features of the Constitution:
(a) the limited nature of the amending power under Art. 368 and
(b) Judicial review in the Minerva Mills case.

The court was very reluctant and cautious to exercise its power of Judicial Review, during the first decade, when the Supreme Court declared invalid only one of total 694 Acts passed by the Parliament.
During the second decade the court asserted its authority without any hesitation which is reflected in the famous Golak Nath case and Kesavananda Barti case. In these cases the Supreme Court assumed the role of constitution making.

Indian Judiciary has been able to overcome the restriction that was put on it by the 42nd amendment, with the help of the 43rd and 44th amendments. Now the redeeming quality of Indian judiciary is that no future governments could clip its wings or dilute its right of Judicial Review.

Part III

Judicial review of constitutional amendments

APart from law making power Parliament also has power to amend the constitution under Article 368. When the constitutional amendment is violative of constitution then the Parliament is having the plenary power so long it is conferring with the Article 13 of the constitution and until it is non arbitrary it cannot be struck down.

In Shankari Prasad v. Union of India (1952)[21]. In this case the provision of first constitution amendment of 1951 was challenged on the ground that they were violative of Fundamental Rights. It was also argued that the word law as given in article 13(2) also includes constitutional amendment acts.

The court did not accept the arguments advanced in the case and decided that:
  1. The power to amend the constitution as mentioned under article 368, also include the power to amend the Fundamental Rights.
  2. The word law as given in article 13(2) refers to the laws made by legislature and does not include constitutional amendment acts, which are enacted by special procedure mentioned in the constitution.
In Sajjan Singh v. State of Rajasthan (1965), in this case also the issues involved in Shankari Prasad v. Union of India were raised and the validity of 17th constitutional amendment was questioned. The Supreme Court again approved its earlier decision on Shankari Prasad case and upheld that the provision of fundamental rights come within the purview of the power of constitutional amendment under Article 368.

Until 1967, the Supreme Court upheld that the Amendment Acts were not ordinary laws and could not be struck down by the application of Article 13 (2). It was in the famous Golak Nath Vs. the state of Punjab case in (1967),[22] where the validity of three constitutional amendments (1st, 4th and 17th) was challenged, that the Supreme Court reversed its earlier decision and uphold the provision under article 368 which put a check on the Parliaments propensity to abridge the fundamental Rights under chapter III of the Constitution. Similar cases were also filed against the provisions of Mysore Land Reforms Act.

The Supreme Court was to consider primarily two questions of law:
  1. Whether it is lawful and within the power of parliament to amend the provisions of Fundamental Rights.
  2. Whether the constitution under Article 368 gives such powers to Parliament to amend the constitution.
The case was decided by the Supreme court by a majority of six/five judges.

The court pronounced the following fundamental principles of law:
  1. Parliament is not competent and powerful to amend the fundamental rights of citizens. It cannot affect any such modifications in the provisions of Part III, which limits or restricts the operation and exercise of fundamental rights.
  2. The court reversed its earlier decisions made in Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan and held that the court is not bound by its earlier decisions.
  3. The court held that Article 368 of the constitution describes only Procedure of amendment.
  4. The amendments made under Article 368 are covered within the word “law” mentioned in Article 13(2).
In the Kesavananda Bharti vs. State of Kerala case (1973),[23] this the most important case with respect to the constitutional amending powers of Parliament. The Supreme court propounded the principles of “Basic Structure” of the constitution and restricted the power of Parliament to amend the constitution under the provisions of Article 368.

The constitutional validity of the twenty-fourth, twenty fifth and twenty ninth amendments was challenged wherein the court held that even though the Parliament is entitled to amend any provision of the constitution it should not tamper with the essential features of the constitution; and that Article 31c is void since it takes away invaluable fundamental rights.

The Keshavananda Bharati case again raised the questions:

Whether the provisions of fundamental rights can be amended under the ambit of Article 368?
What are the powers of parliament with respect to amendment of constitution?

The court again reversed the decision of Golaknath case and upheld the validity of the provisions of sections- 2(A), 2(B) and the first Part of sub-section 3 of 25th Constitution Amendment Act and the provisions of 24th Amendment Act.

The court pronounced the following principles in this case
  1. The provisions of fundamental rights can be amended under Article 368.
  2. Parliament has the power to amend any provision , including fundamental rights of the constitution and to delete the same.
  3. Though Article 368 empowers Parliament to amend the constitution, it does not give it power to change the Basic Structure of the constitution.
  4. The power of Judicial Review is a Part of Basic Structure of the constitution.

In A.K Gopalan v State of Madras [24], one Mr. A.K. Gopalan was detained under the provisions of Preventive Detention act , he challenged the detention on the following grounds:
  1. The detention of Gopalan has violated the Right to freedom provided in Article 19. This freedom is integrated Part of liberty of person.
  2. The detention also infringes upon the right to personal liberty given under article 21 as the detention has been carried out without the following procedure established by law.
The Supreme Court was to decide whether the detention of AK Gopalan violated the fundamental rights given under Article 19 and 21. The Supreme Court rejected both the grounds of petitioner and pronounced that:
  1. Article 19 and 21 provide two different kinds of liberty
  2. The right to personal liberty as given under Article 21 and the right to freedom as given under Article 9 are not related to each other.
  3. The law restricting right to personal liberty cannot be challenged on the ground that the said law imposes restriction under Article 19(5).
In Menaka Gandhi case (1978), the Supreme Court held that the definition of Public Interest is very broad and is not much clear. Therefore section 10(3) of the Passport Act 1967, violates the provision of Article 19, 14 and 21. Justice Bhagawati while delivering the judgement clarified that the term personal liberty used in Article -21 should be given a general and natural meaning. Both the law and procedure should be just that is they should involve the principles of natural justice.

In Minerva Mills v. Union of India (1980)[25], the Supreme Court explained the relationship between the fundamental rights and the directive principles of the state policy. By a majority of 4/1 it was decided that both the fundamental rights and Directive principles of State policy are complimentary to each other. The provisions of Article 31(C) violate the provisions of Article 14 and 19 and it may be amended.

The court balances the felt necessities of the time and constitutional fundamentals when scru­tinizing the validity of any law.

H.M. Seervai has enumerated some of the canyons, maxims and norms followed by the court:

  1. There is a presumption in favour of constitutionality, and a law will riot be declared tin constitutional unless the case is so clear as to be free from doubt; and the onus to prove that its uncon­stitutional lies upon the person who challenges it
  2. Where the validity of a stature is questioned and there are two interpretations, one of which would make the law valid, and the other void, the former must be preferred and the validity of the law will be upheld.
  3. The court will not decide constitutional questions if a case is capable of being decided on other grounds.
  4. The court will not decide a larger constitutional question than is required by the case before it.
  5. The court will not hear an objection as to the constitutionality of a law by a person whose rights are not affected by it.
  6. Ordinarily, courts should not pronounce on the validity of an Act or Part of an Act which has not been brought into force, because till then the question of validity would be merely academic.
  7. In a later case, the Minerva Mill case, the Supreme Court went a step ahead. The 42nd Constitu­tional Amendment of 1976 among other things had added a clause to Article 368 placing a constitutional amendment beyond judicial review. The court held that this was against the doctrine of judicial review, the basic feature of the Constitution.

Strategy of Judicial Review:

The strategy of judicial review can be divided broadly into public law review and private law review. Under the Constitution, legislative and administrative actions can be reviewed by courts under Ar­ticles 32, 136, 226 and 227. Such review is called public law review. Article 32 guarantees the right to move the Supreme Court if any fundamental right can be reviewed under this provision.

Writs:

Article 226 can be, and is more often, used for reviewing the action of administration. One can say that there is an increase of litigation in this respect. The High Court can issue directions, orders or writs in the nature of habeas corpus mandamus, prohibition, quo-warranto, and certiorari for the enforcement of fundamental rights or for any other purpose.

Habeas corpus

is a write issued by the court to bring before the court a person from illegal custody. The court will examine the legality of detention and release the person if detention is found illegal.
Mandamus is issued to a public authority to do an act which under law, it is obliged to do or to forbear from doing.

Prohibition

is a write to prevent a court or tribunal from doing something in excess of its author­ity. High Court has power to issue an order of prohibition to the executive authority prohibiting it from acting without jurisdiction.

Certiorari

is a write issued to a judicial or quasi-judicial authority to correct its order. This writ is issued on specified grounds like violation of natural justice; excess, abuse or lack of jurisdiction; fraud; and error of law apparent on the face of the record.

Quo-warranto

is a writ issued to a person who authoritatively occupies a public office to step down from that office. High courts and the Supreme Court have the power to issue not only these writs but also appropriate directions and orders.

Judicial Review and Contempt of Court:

It is mandatory that an administrative officer or authority should obey the directions of a court and execute the decisions of the court. What action can be court take if they do not do this? The court has neither the sword not the purse like the executive. It has a potential power.

It has the power to take action of contempt of court. Those who violate or disobey the decisions of the courts are proceeded against under this power. They can be punished and sent to jail. Obviously the contempt power is the only weapon in the hand of judiciary to see that their decisions are executed.

Locus standi is the first limitation on judicial review. This means that only a person aggrieved by an administrative action or by an unjust provision of law shall have the right to move the court for redressal. Under this traditional rule a third Party who is not affected by the action cannot move the court.

Another limitation is that before a person moves the High Courts and the Supreme Court invok­ing their extraordinary jurisdiction, he should have exhausted all alternative remedies. For example, these may be a hierarchy of authorities provided in legislation to look-into the grievances of the affected Party. The aggrieved person should first approach these authorities for a remedy before invoking extraordinary jurisdiction of the courts.
However, the alternative remedies should be equally efficacious and effective as the remedies available from the courts are. If they are not, the jurisdiction can be invoked. In cases of manifest injustice and the violation of procedural fairness, alternative remedy is not a bar.

A rule has been evolved to avoid repeated adjudication on the same matter between the same Parties. If the case is finally disposed of on merits the same issue cannot be re-agitated by any of the Parties filing another case.

This limitation is called res judicata.

Debate On Overlapping Powers of Judiciary And Legislature

It is often found that courts do not realise their limits. Courts must realise that there are many problems before the country, which courts cannot solve however much they like. What stands out is his firm belief that courts cannot interfere with the government policy as a matter of routine. Judicial Activism does not mean judicial adventurism. Judges should never be activist as sometimes judicial activism is a useful adjunct to democracy.
Justice Markandey Katju

Debate over judicial Review has assumed great significance in recent years in the form of two conflicting philosophies: Judicial Activism and Judicial Self Restraint. Judicial Review in its most widely accepted meaning is the power of the courts to consider the constitutionality of acts of organs of Government (the executive and legislature) and declare it unconstitutional or null and void if it violates or is inconsistent with the basic principles of Grundnorm i.e. Constitution. Courts and judges play an indispensable role through its own route and mechanism viz. judicial process by providing justice or just ends by just means. Judicial Role is not merely Jus Dicere. Judges today, are neither discusitized nor la bouche de la loi (mouth of law).

Judicial Review concept which evolved in Marbury v. Madison[26] is an armour to check to check lawlessness – legislative as well as executive with a review to serve legitimacy of power and administrative efficiency. Judicial review is the power by which judiciary aims at activising herself in retaining her domain of judicial activity over the state inactivity.This judicial activism is a multifortiori as it makes action popularis not only popular through strategies of PIL vide pro bono public, but a rule of life for the lowly and lost ,little man, deprived ,underprivileged, destitute.

The definition of judicial activism is an intense ongoing debate. According to Merriam-Websters Dictionary of Law, judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that dePart from established precedent or are independent of or in opposition to the supposed constitutional or legislative intent. According to Blacks Law Dictionary judicial activism is a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.

Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. Thus the phrase judicial activism carries more than one connotation. The common law tradition conceives of courtroom litigation as an adversarial process where the onus is on the pleaders to shape the overall course of the proceedings through their submissions. In this conception, the role of the judge is cast in a passive mould and the objective is to dispassionately evaluate the arguments made by both sides.

There has been a raging debate on the proper scope and limits of the judicial role especially of that played by the higher judiciary which consists of the Supreme Court of India at the Centre and the High Courts in the various States that form the Union of India. The terms of that debate have been broadly framed with respect to the considerations of ensuring an effective separation of powers between the executive, legislature and the judiciary as well as concerns about the efficacy and legitimacy of judicial interventions in the long-run.

The place of Judicial Review in Indian Constitution

In post-independence India, the inclusion of explicit provisions for judicial review were necessary in order to give effect to the individual and group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provision related to the same as the heart of the Constitution.1 Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.

While judicial review over administrative action has evolved on the lines of common law doctrines such as proportionality, legitimate expectation, reasonableness and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.

The higher courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7th schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures.

Hence the scope of judicial review before Indian courts has evolved in three dimensions – firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence between the centre and the states.

The power of the Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights.

This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law – such as habeas corpus (to direct the release of a person detained unlawfully), mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself).

Besides the Supreme Court, the High Courts located in the various States are also designated as constitutional courts and Article 226 permits citizens to file similar writs before the High Courts. With the advent of Public Interest Litigation (PIL) and dilution of concept of locus standi in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a continuing mandamus for ensuring that executive agencies comply with judicial directions.

In his work Social Action Litigation: The Indian Express Justice Bhagwati observed

Today, we find that in third world countries, there are large number of groups which are being subjected to exploitation, injustice and even violence. In this climate of conflict and injustice, judges have to play a positive role and they cannot content themselves by invoking the doctrine of self-restraint and passive interpretation. The judges in India have fortunately a most potent judicial power in their hands, namely the power of judicial review. The judiciary has to play a vital and important role not only in preventing the remedying abuse and misuse of power but also in eliminating exploitation and injustice.

Notably, over the decades, the Supreme Court has affirmed that both the Fundamental Rights and Directive Principles must be interpreted harmoniously. It was observed in the Kesavananda Bharati case, that the directive principles and the fundamental rights supplement each other and aim at the same goal of bringing about a social revolution and the establishment of a welfare State, the objectives which are also enumerated in the Preamble to the Constitution. Furthermore, in Unni Krishnan, J.P. v. State of Andhra Pradesh, Justice Jeevan Reddy declared:

The provisions of Parts III and IV are supplementary and complementary to each other and not exclusionary of each other and that the fundamental rights are but a means to achieve the goal indicated in Part IV.

This approach of harmonizing the fundamental rights and directive principles has been successful to a considerable extent. The Supreme Court has interpreted the protection of life and personal liberty as one which contemplates socio-economic entitlements especially in public interest cases.

Milestones of Public Interest Litigation in India

One of the earliest cases of public interest litigation was reported as Hussainara Khatoon (I) v. State of Bihar[27]. This case was concerned with a series of articles published in a prominent newspaper - the Indian Express which exposed the plight of under trial prisoners in the state of Bihar. A writ petition was filed by an advocate drawing the Courts attention to the deplorable plight of these prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with. The Supreme Court accepted the dilution of locus standi and allowed an advocate to maintain the writ petition.

Thereafter, a series of cases followed in which the Court gave directions through which the right to speedy trial was deemed to be an integral and an essential Part of the protection of life and personal liberty. Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of the Constitution. These included inhuman conditions prevailing in protective homes, long pendency of trials in court, trafficking of women, importation of children for homosexual purposes, and the non-payment of wages to bonded labourers among others. The Supreme Court accepted their locus standi to represent the suffering masses and passed guidelines and orders that greatly ameliorated the conditions of these people.

In another matter, a journalist, Ms. Sheela Barse, took up the plight of women prisoners who were confined in the police jails in the city of Bombay. The Court took cognizance of the matter and directions were issued to the Director of College of Social Work, Bombay to visit the Bombay Central Jail and conduct interviews of various women prisoners in order to ascertain whether they had been subjected to torture or ill-treatment. Based on his findings, the Court issued directions such as the detention of female prisoners only in designated female lock-ups guarded by female constables and that accused females could be interrogated only in the presence of a female police official.

Public interest litigation acquired a new dimension – namely that of epistolary jurisdiction with the decision in the case of Sunil Batra v. Delhi Administration,[28] It was initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a Head Warden on another prisoner. The Court treated that letter as a writ petition, and, while issuing various directions, opined that:

…technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found.

In Municipal Council, Ratlam v. Vardichand,[29] the Court recognized the locus standi of a group of citizens who sought directions against the local Municipal Council for removal of open drains that caused stench as well as diseases. The Court, recognizing the right of the group of citizens, asserted that if the:

…centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, the court must consider the issues as there is need to focus on the ordinary men.

In Parmanand Katara v. Union of India[30], the Supreme Court accepted an application by an advocate that highlighted a news item titled Law Helps the Injured to Die published in a national daily, The Hindustan Times. The petitioner brought to light the procedural difficulties which came in availing urgent and life-saving medical treatment to persons injured in road and other accidents. The Supreme Court directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law.

The Supreme Court has met the changing needs of society by the extensive liberalization of the rule of locus standi which gave birth to a flexible public interest litigation system. A powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P. Gupta v. Union of India[31]. The judgment recognized the locus standi of bar associations to file writs by way of public interest litigation. In this Particular case, it was accepted that they had a legitimate interest in questioning the executives policy of arbitrarily transferring High Court judges, which threatened the independence of the judiciary. Explaining the liberalization of the concept of locus standi, the court opined:

“It must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him.”

The unique model of public interest litigation that has evolved in India not only looks at issues like consumer protection, gender justice, prevention of environmental pollution and ecological destruction, it is also directed towards finding social and political space for the disadvantaged and other vulnerable groups in society. The Courts have given decisions in cases pertaining to different kinds of entitlements and protections such as the availability of food, access to clean air, safe working conditions, political representation, affirmative action, anti-discrimination measures and the regulation of prison conditions among others.

For instance, in Peoples Union for Democratic Rights v. Union of India[32], a petition was brought against governmental agencies which questioned the employment of underage labourers and the payment of wages below the prescribed statutory minimum wage-levels to those involved in the construction of facilities for the then upcoming Asian Games in New Delhi. The Court took serious exception to these practices and ruled that they violated constitutional guarantees.

The employment of children in construction-related jobs clearly fell foul of the constitutional prohibition on child labour and the non-payment of minimum wages was equated with the extraction of forced labour. Similarly, in Bandhua Mukti Morcha v. Union of India[33], the Supreme Courts attention was drawn to the widespread incidence of the age-old practice of bonded labour which persists despite the constitutional prohibition. Among other interventions, one can refer to the Shriram Food & Fertilizer case where the Court issued directions to employers to check the production of hazardous chemicals and gases that endangered the life and health of workmen. It is also through the vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary compensation for constitutional wrongs such as unlawful detention, custodial torture and extra-judicial killings by state agencies.

An important step in the area of gender justice was the decision in Vishaka v. State of Rajasthan[34]. The petition in that case originated from the gang-rape of a grassroots social worker. In that opinion, the Court invoked the text of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces. The decision came under considerable criticism for encroaching into the domain of the legislature. It must be remembered that meaningful social change, like any sustained transformation, demands a long-term engagement. Even though a Particular petition may fail to secure relief in a wholesome manner or be slow in its implementation, litigation is an important step towards systemic reforms.

Public Cause Litigation

However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the courts intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or dePartments of government or public bodies. Examples of this type of intervention by the Court are innumerable. A recent example of this approach was the decision in Peoples Union for Civil Liberties v. Union of India, where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools.

There had been widespread reports of problems in the implementation of this scheme such as the pilferage of food grains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all States and Union Territories, while giving elaborate directions about the proper publicity and implementation of the said scheme.the apex cort has also championed the cause of pavement dwellers in Olga Tellis v. Bombay Municipal Corporation[35].

In the realm of environmental protection, many of the leading decisions have been given in actions brought by renowned environmentalist M.C. Mehta viz., strict liability for the leak of Oleum gas from a factory in New Delhi, directions to check pollution in and around the Ganges river, the relocation of hazardous industries from the municipal limits of Delhi, directions to state agencies to check pollution in the vicinity of the Taj Mahal and several afforestation measures. A prominent decision was made in a petition that raised the problem of extensive vehicular air pollution in Delhi. The Court was faced with considerable statistical evidence of increasing levels of hazardous emissions on account of the use of diesel as a fuel by commercial vehicles.

The Supreme Court decided to make a decisive intervention in this matter and ordered government-run buses to shift to the use of Compressed Natural Gas (CNG), an environment-friendly fuel. This was followed some time later by another order that required privately-run autorickshaws (three-wheeler vehicles which meet local transportational needs) to shift to the use of CNG. At the time, this decision was criticized as an unwarranted intrusion into the functions of the pollution control authorities, but it has now come to be widely acknowledged that it is only because of this judicial intervention that air pollution in Delhi has been checked to a substantial extent.

Another crucial intervention was made in Council for Environment Legal Action v. Union of India, wherein Polluter Pays principle was evolved. In S.Jagannath v. UOI the Supreme Court gave directions to tackle ecological degradation in coastal areas. In recent years, the Supreme Court has taken on the mantle of monitoring forest conservation measures all over India, and a special Green bench has been constituted to give directions to the concerned governmental agencies to maintain judicial supervision in order to protect our ecological resources from rampant encroachments and administrative apathy.

In the interest of public the Supreme Court has given directions for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage of blood in blood banks, and for control of loudspeakers and banning of fire crackers.

In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.

In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.

The PIL has proved to be a strong and patent weapon in the hand of the court enabling it to unearth many scans and corruption cases in public life and to punish the guilty involved in those scams. Hawala scam, urea scam, fodder scam in Bihar,

St. kits scam, Ayurvedic Medicines scam and illegal Allotment of government Houses and petrol pumps and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court have come to light through the public interest litigation, certain social organisation and public spirited individuals filed a writ petitions in the Supreme Court and High Courts by way of public litigation requesting court to inquire and punish those who are found guilty of by passing laws of the country and misusing their official positions in public life. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder.

This has led to the President making a Reference to the Court for the Courts legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India. The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government.

Military Operation

The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal shrine, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.”

Legislative Proceedings

Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.

Part IV
Conclusion: A defence of Judicial Activism
The expansion of judicial review (which is often described as judicial activism) has of course raised the popular profile of the higher judiciary in India. There are two conceptual objections against the justifiability to enforce positive obligations or aspirational rights. The first is that if judges devise strategies to enforce the directive principles, it amounts to an intrusion into the legislative and executive domain. The articulation of newer fundamental rights is the legislatures task within which the judiciary should refrain from intervening. Further these obligations were enumerated as directive principles by the framers on account of practical considerations of heavy cost. Therefore judiciary must exercise restraint.

However, the second objection to the reading in of positive obligations raises some scope for introspection amongst judges. The judicial inclusion of socio-economic objectives as fundamental rights can be criticised as an unviable textual exercise, which may have no bearing on ground-level conditions though the unenforceability and inability of state agencies to protect such aspirational rights could have an adverse effect on public perceptions about the efficacy and legitimacy of the judiciary. Also, a question arises whether poor enforcement is a sufficient reason to abandon the pursuit of rights whose fulfillment enhances social and economic welfare. At this point, one can recount Roscoe Pounds thesis on law as an agent of social change.

The express inclusion of legal rights is an effective strategy to counter-act social problems in the long-run. At the level of constitutional protection, such rights have an inherent symbolic value which goes beyond empirical considerations about their actual enforcement. The colonial regime in the Indian subcontinent periodically made legislative interventions to discourage retrograde and exploitative social practices such as Sati (immolation of widows), prohibition of widow-remarriage and child marriage. Even though there have been persistent problems in the enforcement of these legislations, in the long run they have played an important Part in reducing the incidence of these unjust customs. In the short run even the coercive authority of law may not be enough of a deterrent, but in the long run the continued existence of such authority helps in creating public opinion against the same practices.

In the same way the inclusion of the whole spectrum of rights and entitlements such as social equality and religious freedom ,various civil liberties and protections against arbitrary actions by the state are now identified as core elements of citizenship and violations provoke a high standard of scrutiny both by the judiciary as well as civil society groups. The inclusion of entitlements such as universal adult franchise have greatly reduced the coercive power of casteist and feudal social structures and empowered political Parties that represent historically disadvantaged sections such as the Scheduled Castes (SC) and Scheduled Tribes (ST) have played a major role in social transformation in India.

Even though practices such as untouchability, forced labour and child labour have not been totally eradicated, our constitutional provisions prohibiting the same are the bedrock behind legal as well as socio-political strategies to curb the same. The Supreme Court of India has further internalized the importance of laying down clear normative standards which drive social transformation. Its interventions through strategies such as the expansion of Article 21 and the use of innovative remedies in Public Interest Litigation (PIL) cases has actually expanded the scope and efficacy of constitutional rights by applying them in previously unenumerated settings.

Furthermore, the Courts allow groups and interests with unequal bargaining power in the political sphere to present their case in an environment of due deliberation. The Courts have come to recognize and enforce rights for the most disadvantaged sections in society through an expanded notion of judicial review.

The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions.

The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.

Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” The former Chief Justice of India, Justice Ahmadi has stated “Sometimes this Activism has the potential to transcend the borders of Judicial Review and turn into populism and excessive”. Activism according to him is “populism when doctrinal effervescence transcends the institutional capacity of the judiciary to translate the doctrine into reality, and it is excessive when a court undertakes responsibilities normally discharged by other coordinate organs of the government”.

Unless the parameters of intervention are strictly formulated by the Supreme Court and strictly observed, the concept of judicial review which is so necessary in India will become diffused, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.

Bibliography
Websites
Judicial Activism in India, book by: S.P.Sathe
Common Cause a regd Society v. Union of India
  1. www.Indiankanoon.org/doc/440148
  2. http://en.wikipedia.org/wiki/Judicial_activism E.S. Crown-Essay on the Judicial Review in Encyclopedia of Social Sciences, Vol. VIII, P.457
  3. https://en.wikipedia.org/wiki/Judicial_review https://legal-dictionary.thefreedictionary.com/judicial+review
  4. www.yourarticlelibrary.com › Artilces on Judiciary
  5. https://www.law.cornell.edu/wex/judicial_review
  6. https://nationalparalegal.edu/JudicialReview.aspx
  7. https://www.judiciary.gov.uk/you-and-the-judiciary/judicial-review/
  8. www.thehindu.com/todays-paper/SC-extends-judicial-review.../article16981005.ece

Books And Articles
  1. Judicial Activism in India, book by: S.P.Sathe
  2. Judicial Review: A Legal Guide
  3. Corrado, Michael Louis (2005). Comparative Constitutional Law: Cases and Materials. ISBN 0-89089-710-7. (Country by country case studies)
  4. N. Jayapalan (1999). Modern Governments. Atlantic Publishers and Distributors. ISBN 978-81-7156-837-6. (A comparison of modern constitutions)
  5. Beatty, David M (1994). Human rights and judicial review. Martinus Nijhoff Publishers. ISBN 978-0-7923-2968-8. (A comparison of national judicial review doctrines)
  6. Wolfe, Christopher (1994). The American doctrine of judicial supremacy. Rowman & Littlefield. ISBN 978-0-8226-3026-5. (This book traces the doctrines history in an international/comparative fashion)
  7. Vanberg, Georg (2005). Constitutional Review in Comparative Perspective. The politics of constitutional review in Germany. Cambridge University Press. ISBN 978-0-521-83647-0.(The effects of politics in law in Germany)
  8. Galera, S. (ed.), Judicial Review. A Comparative Analysis inside the European Legal System, Council of Europe, 2010, ISBN 978-92-871-6723-1,
  9. Edward S. Corwin, The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays. Piscataway, NJ: Transaction Publishers, 2014
Table of Cases
  1. TATA cellular limited v. Union of India [1994
  2. Reliance airport development ltd. V. airport authority of India [2006]
  3. Nottinghamshire County Council v. Secretary of State
  4. R. v. Panel
  5. Shankari Prasad v. union of India [1951]
  6. Sajjan singh v. state of Rajasthan [1965
  7. Golaknath v state of Punjab [1967]
  8. Keshavananda bharati v. state of kerala [1973]
  9. AK Gopalan v state of Madras
  10. Menaka Gandhi v. union of India [1978]
  11. Minerva mills v. union of India [1980]
  12. Marbury v. madison
  13. Hussainara khatoon v. state of Bihar
  14. Sunil batra v. delhi administration
  15. Ratlam v. vardichand
  16. Parmanand Katra v. union of India
  17. Peoples union for democratic rights v. union of India
  18. Bandhua mukti morcha v. union of India
  19. S.P. Gupta v. union of India
  20. Vishakha v. state of Rajasthan
  21. ADM Jabalpur V. Shivkant Shukla [AIR 1976]
  22. Francis Coralie v.Union Territory of Delhi[ AIR 1981]
  23. Uni Krishnan v.State of Andhra Pradesh[1993]

End-Notes:
  1. Judicial activism in India book by S.P.Sathe
  2. 60 US 393 (1856)
  3. 347 US 483 (1954); 98 L.Ed. 873
  4. AIR 1994 SC 1918
  5. Agarwal, S.K., Public Interest Litigation in India (K.M. Munshi memorial Lecture , second series, Indian Law Institute, Delhi 1885
  6. (1942) AC 206: (1941) All Eng. L. R. vol.2 p 612
  7. Associated Provincial Pictures limited v. Wednesbury corporation (1948) 1 K.B. 223
  8. See Union of India v. G Ganayutham (1997)7 SCC 463
  9. (1994)3 SCC1
  10. 44 L Ed 373
  11. AIR 1932 PC 76: 59 IA 92: ILR 7
  12. (1991) 3 SCC 91 (para 43-46)
  13. (1991) 3 SCC 273
  14. AIR 1945 PC 38: 221 IC 603
  15. (1987) 4 SCC 611
  16. (1990) 1 SCC 613
  17. (1987) 1 All ER 564
  18. (1989) 2 All ER 609
  19. Amin v. Entry Clearance Officer, (1983) 2 All ER 864
  20. Shankari Prasad vs Union of India (AIR 1951 SC 455)
  21. (1967 AIR 1643, 1967 SCR (2) 762),
  22. (1973) 4 SCC 225)
  23. AIR 1950 SC 27: 1950 SCR 88: 1950 SCJ 174.
  24. AIR 1980 SC 1789
  25. Marbury v. Madison, 5 U.S. 137 (1803
  26. Hussainara Khatoon (I) v. State of Bihar (AIR 1979 SC 1369),
  27. Sunil Batra v. Delhi Administration (1978) 4 SCC 409
  28. Ratlam, vs Vardhichand AIR 1980 SC 1622
  29. Parmanand Katara v. Union of India and others, (1989) 4 SCC 286.
  30. AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
  31. Peoples Union For Democratic rights vs. Union Of India & Others on 18 September, 1982; 1982 AIR 1473, 1983 SCR (1) 456
  32. Bandhua Mukti Morcha v. Union of India & Ors. (1997) 10 SCC 549.
  33. Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997
  34. 1985 SCC (3) 545
Written By: Pallavi Pal - PhD. Research Scholar, DePartment of Law, University school of law and legal studies, GGSIPU

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