The Judicial Review 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
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
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
 were examples of negative
judicial activism whereas the decision of that court in Brown v. Board of
 is an example of positive activism.
In S. R Bommai v. Union of India
, 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
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\
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 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
. 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. 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
It was in S.R. Bommai v. Union of India
 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
The executive organ acts in the following situations:
- 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
- Secondly, General functions of governance, i.e. when the executives work beyond
- 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
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
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
Those four were:
- Member (Production)
- Member (Services)
- Member (Technology)
- 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
- BPL Systems and Projects Limited
- Mobile Telecommunication Limited
- Mobile Telecom Services
- 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
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
- In view of the time taken by the High- Powered Committee the selection process
be completed by DoT internally;
- Only one Party may be granted licence for one city; and
- 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
- India Telecomp (Petitioner in CWP No. 4030 of 1992)
- Adino Telecom Limited (Petitioner in CWP No. 4031 of 1992)
- Kanazia Digital System (Petitioner in CWP No. 4032 of 1992)
- 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
- invoking certain hidden criteria
- irrelevant considerations
- bypassing the Selection Committee
- selecting otherwise under qualified Parties
- 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.
Mobile Telecom Ltd. India Telecomp Ltd.
Usha Martin Telecom Usha Martin Telecom
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:
- Entire foreign exchange requirement shall be met by the foreign collaborator.
- Minimum reliance on Indian public financial institutions will be preferred.
- 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
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 Chand
1 (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
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
Mr Harish Salve, learned counsel, appearing for India Telecomp attacks the
selection as arbitrary on the following three grounds:
- Bypassing the Apex Committee and entrusting to a Committee which did not follow
- Certain hidden criteria which were not disclosed earlier, were applied not as
parameters, but for elimination.
- 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
Two hidden criteria were postulated:
- Persons having less than one lakh experience will not be considered.
- 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
As against BPL the attack is as under:
- BPL did not apply to SIA/FIPB but to Reserve Bank of India (RBI).
- 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.
- Mr Nair was biased in favour of BPL.
- 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
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:
- The approach of the DePartment was hyper-technical.
- Compliance statement is akin to verification in a pleading. It cannot be placed
on a higher pedestal than verification.
- The DePartment ought to have allowed rectification since it was purely a mistake
- 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
Internationally, cellular phones are used by two categories
- subscribers residing in the city who would use the phone on a permanent
- 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
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 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
- Quasi-judicial 8 (1992) 4 DLT 24 9 (1975) 1 SCC 70: (1975) 2 SCR 674: 178 US
- Administrative, for example, price fixing
- 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
(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
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.
- The scope and ambit of judicial review with regard to decisions bona fide
arrived at in tender cases (pre- contract).
- The applicability of judicial review in these cases.
- 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
. 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
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.
submitted, whenever disqualification on the ground of personal involvement is
- the person involved (for example related) must be the decision-maker;
- 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
. This decision has been referred to by
this Court in Ranjit Thakur v. Union of India . 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
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 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:
- Quoted rental ceiling
- Project financing plan
- Foreign Exchange inflow and outflow
- Projects plan for cellular equipment within the country including the tie-up
with the proposed Indian manufacturers.
- Experience of foreign operating Partner and
- 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
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
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
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.
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.
- The modern trend points to judicial restraint in administrative action.
- The court does not sit as a court of appeal but merely reviews the manner in
which the decision was made.
- 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.
- The terms of the invitation to tender cannot be open to judicial scrutiny
because the invitation to tender is in the realm of contract.
- 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.
- 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
, 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
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
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, 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, 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, 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:
- Whether a decision-making authority exceeded its powers
- committed an error of law,
- committed a breach of the rules of natural justice,
- Reached a decision which no reasonable tribunal would have reached or,
- 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:
- Illegality: This means the decision- maker must understand correctly the law
that regulates his decision-making power and must give effect to it.
- Irrationality, namely, Wednesday unreasonableness.
- 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.
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
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
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
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 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
- 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,
- 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.
(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
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.
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). 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
in article 13(2) also includes constitutional amendment acts.
The court did not accept the arguments advanced in the case and decided that:
- The power to amend the constitution as mentioned under article 368, also include
the power to amend the Fundamental Rights.
- 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), 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:
- Whether it is lawful and within the power of parliament to amend the provisions
of Fundamental Rights.
- 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:
- 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.
- 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.
- The court held that Article 368 of the constitution describes only Procedure of
- 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), 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
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
- The provisions of fundamental rights can be amended under Article 368.
- Parliament has the power to amend any provision , including fundamental rights
of the constitution and to delete the same.
- Though Article 368 empowers Parliament to amend the constitution, it
does not give it power to change the Basic Structure of the constitution.
- The power of Judicial Review is a Part of Basic Structure of the constitution.
In A.K Gopalan v State of Madras
, one Mr. A.K. Gopalan was detained under
the provisions of Preventive Detention act , he challenged the detention on the
- The detention of Gopalan has violated the Right to freedom provided in Article
19. This freedom is integrated Part of liberty of person.
- 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:
- Article 19 and 21 provide two different kinds of liberty
- 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.
- 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), 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:
- 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
- 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.
- The court will not decide constitutional questions if a case is capable of being
decided on other grounds.
- The court will not decide a larger constitutional question than is required by
the case before it.
- The court will not hear an objection as to the constitutionality of a law by a
person whose rights are not affected by it.
- 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.
- 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
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.
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.
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.
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.
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.
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.
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
 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
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 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
In his work Social Action Litigation: The Indian Express Justice Bhagwati
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
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
. 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
, 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
…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
, 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
, 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
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
“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
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
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
, 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. 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
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
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
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
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.
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.”
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.
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
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
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
Judicial Activism in India, book by: S.P.Sathe
Common Cause a regd Society v. Union of India
Books And Articles
- http://en.wikipedia.org/wiki/Judicial_activism E.S. Crown-Essay on the
Judicial Review in Encyclopedia of Social Sciences, Vol. VIII, P.457
- https://en.wikipedia.org/wiki/Judicial_review https://legal-dictionary.thefreedictionary.com/judicial+review
- www.yourarticlelibrary.com › Artilces on Judiciary
Table of Cases
- Judicial Activism in India, book by: S.P.Sathe
- Judicial Review: A Legal Guide
- Corrado, Michael Louis (2005). Comparative Constitutional Law: Cases and
Materials. ISBN 0-89089-710-7. (Country by country case studies)
- N. Jayapalan (1999). Modern Governments. Atlantic Publishers and
Distributors. ISBN 978-81-7156-837-6. (A comparison of modern constitutions)
- 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)
- 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)
- 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)
- Galera, S. (ed.), Judicial Review. A Comparative Analysis inside the
European Legal System, Council of Europe, 2010, ISBN 978-92-871-6723-1,
- Edward S. Corwin, The Doctrine of Judicial Review: Its Legal and
Historical Basis and Other Essays. Piscataway, NJ: Transaction Publishers,
- TATA cellular limited v. Union of India [1994
- Reliance airport development ltd. V. airport authority of India 
- Nottinghamshire County Council v. Secretary of State
- R. v. Panel
- Shankari Prasad v. union of India 
- Sajjan singh v. state of Rajasthan [1965
- Golaknath v state of Punjab 
- Keshavananda bharati v. state of kerala 
- AK Gopalan v state of Madras
- Menaka Gandhi v. union of India 
- Minerva mills v. union of India 
- Marbury v. madison
- Hussainara khatoon v. state of Bihar
- Sunil batra v. delhi administration
- Ratlam v. vardichand
- Parmanand Katra v. union of India
- Peoples union for democratic rights v. union of India
- Bandhua mukti morcha v. union of India
- S.P. Gupta v. union of India
- Vishakha v. state of Rajasthan
- ADM Jabalpur V. Shivkant Shukla [AIR 1976]
- Francis Coralie v.Union Territory of Delhi[ AIR 1981]
- Uni Krishnan v.State of Andhra Pradesh
Written By: Pallavi Pal
- Judicial activism in India book by S.P.Sathe
- 60 US 393 (1856)
- 347 US 483 (1954); 98 L.Ed. 873
- AIR 1994 SC 1918
- Agarwal, S.K., Public Interest Litigation in India (K.M. Munshi memorial
Lecture , second series, Indian Law Institute, Delhi 1885
- (1942) AC 206: (1941) All Eng. L. R. vol.2 p 612
- Associated Provincial Pictures limited v. Wednesbury corporation (1948)
1 K.B. 223
- See Union of India v. G Ganayutham (1997)7 SCC 463
- (1994)3 SCC1
- 44 L Ed 373
- AIR 1932 PC 76: 59 IA 92: ILR 7
- (1991) 3 SCC 91 (para 43-46)
- (1991) 3 SCC 273
- AIR 1945 PC 38: 221 IC 603
- (1987) 4 SCC 611
- (1990) 1 SCC 613
- (1987) 1 All ER 564
- (1989) 2 All ER 609
- Amin v. Entry Clearance Officer, (1983) 2 All ER 864
- Shankari Prasad vs Union of India (AIR 1951 SC 455)
- (1967 AIR 1643, 1967 SCR (2) 762),
- (1973) 4 SCC 225)
- AIR 1950 SC 27: 1950 SCR 88: 1950 SCJ 174.
- AIR 1980 SC 1789
- Marbury v. Madison, 5 U.S. 137 (1803
- Hussainara Khatoon (I) v. State of Bihar (AIR 1979 SC 1369),
- Sunil Batra v. Delhi Administration (1978) 4 SCC 409
- Ratlam, vs Vardhichand AIR 1980 SC 1622
- Parmanand Katara v. Union of India and others, (1989) 4 SCC 286.
- AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
- Peoples Union For Democratic rights vs. Union Of India & Others on 18
September, 1982; 1982 AIR 1473, 1983 SCR (1) 456
- Bandhua Mukti Morcha v. Union of India & Ors. (1997) 10 SCC 549.
- Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997
- 1985 SCC (3) 545
- PhD. Research Scholar, DePartment of Law,
University school of law and legal studies, GGSIPU