Constitutional Framework For Judicial Review And Administrative Action In
The doctrine of judicial review has been originated and developed by the
American Supreme Court, although there is no express provision in the American
Constitution for the judicial review. In Marbury v. Madison
Supreme Court made it clear that it had the power of judicial review.
Chief Justice George Marshall said:
Certainly all those who have framed the written Constitution contemplate them
as forming the fundamental and paramount law of the nations, and consequently,
the theory of every such Government must be that an act of the legislature,
repugnant to the Constitution is void.
There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict
between the Constitution and the Acts passed by the legislature, the Courts
follow the Constitution and declare the acts to be unconstitutional and,
therefore, void. The Courts declare void the acts of the legislature and the
executive, if they are found in violation of the provisions of the Constitution.
The constitution of India, in this respect, is more a kin to the U.S.
Constitution than the British. In Britain, the doctrine of parliamentary
supremacy still holds goods. No court of law there can declare a parliamentary
enactment invalid. On the contrary every court is constrained to enforce every
provision" of the law of parliament. Under the constitution of India parliament
is not supreme. Its powers are limited in the two ways.
First, there is the division of powers between the union and the states.
Parliament is competent to pass laws only with respect to those subjects which
are guaranteed to the citizens against every form of legislative encroachment.
Being the guardian of Fundamental Rights and the arbiter of constitutional
conflicts between the union and the states with respect to the division of
powers between them, the Supreme Court stands in a unique position where from it
is competent to exercise the power of reviewing legislative enactments both of
parliament and the state legislatures.
This is what makes the court a powerful instrument of judicial review under the
constitution. As Dr. M.P. Jain has rightly observed:
The doctrine of judicial review is thus firmly rooted in India, and has the
explicit sanction of the constitution.
In the framework of a constitution which guarantees individual Fundamental
Rights, divides power between the union and the states and clearly defines and
delimits the powers and functions of every organ of the state including the
parliament, judiciary plays a very important role under their powers of judicial
Supreme Court enjoys a position which entrusts it with the power of reviewing
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 legislations are articles 13,
32,131-136, 143, 145, 226, 246, 251, 254 and 372.
Article 13 establishes that any law which contravenes any of the provisions of
the part of Fundamental Rights shall be void. Article 13(2) of the Indian
Constitution believed that countrywide shall not create any regulation, those
abbreviates or take absent the right as deliberated in its Part three, in
respect of important rights of the inhabitants of India. If any rule was created
against this clause of the Constitution, it will come within the purview of
infringement and will be declared as void.
The clause denoted meaning of law; it has included usage or custom, ordinance,
bye-law, order, notification, regulation and rule, which is enforced in the
domain of India. The meaning of law in force represents that the law made or
passed by legislature or authority competent inside the province of India before
and the Indian Constitution come in force. Such law or any part thereof was not
cancelled earlier in all or in a particular location is not in operation, it may
be called laws in force.
Article 32 and 226 entrusts the roles of the protector and guarantor of
fundamental rights to the Supreme and High Courts. The facilities of rights of
legitimate remedies have been provided in the Article 32 of the Constitution.
The injured somebody can travel to the Indian Supreme Court, for a suitable
proceeding for execution of the rights deliberated and guaranteed as essential
right under Part three of the Constitution. The Supreme Court has the influence
to production of writs, order and direction, which might be suitable for the
implementation of essential rights by method of any of the writs. It is the
power to issue order, direction and/or writ whichever is suitable for execution
of any rights amalgamated in Part three of the Indian Constitution.
The Parliament has been capitalized with control or powers to a little
additional judiciary, for working out inside their confined parameters, of this
one dominion under clause (1) and (2) of Article 32. However, such power given
to the Supreme Court. Under Article 32 shall not be suspended, separately from
as otherwise obtainable for, under the Indian Constitution. Article 32 was
called the soul of the constitution and very heart of it
by Dr. B.R
Supreme Court has included it in basic structure doctrine. Further, it is made
clear that right to move to Supreme Court cannot be suspended except otherwise
provided by the Constitution. This implies that this right suspended during a
national emergency under article 359. Article 32 makes the Supreme Court the
defender and guarantor of the fundamental rights.
Further, power to issue writs comes under original jurisdiction of the Supreme
Court. This means that a person may approach Supreme Court directly for remedy
rather than by way of appeal. The nature and purpose or judicial review is not
the review of the decision of the administrative authority but of the decision
making process. Thus, the Supreme Court cannot assume appellate jurisdiction and
reappreciate the primary or perceptive facts found by the fact-finding
Though the jurisdiction of the Supreme Court under Art. 32 is confined to the
enforcement of the Fundamental Rights yet if there is a clear abuse of process
of the court petition is maintainable even if no violation of any Fundamental
Right is involved.
However where there is question of policy is not subject to judicial review. The
State has the power to change its policy. The Court will not go into questions
of policy of the State which is required to be dealt with by the legislature.
The Court could interfere only if the changed policy is arbitrary or violative
of the law or the Constitution. The Court also cannot issue direction which
would result in amendment of government's existing policy.
Where there is a breach of Fundamental Rights and abuse of power the court has
the authority to grant compensation for it, by exercising its jurisdiction under
Article 32 of the Constitution. And for the same purpose the court has the
jurisdiction to enforce Fundamental Right even against private bodies and
individuals. Hence it can be affirmed that the power vested on the Supreme Court
under Art. 32 is not strictly confined to the enforcement of the fundamental
rights, clear abuse of process of the court can also be a reason for the
exercise of such jurisdiction.
Art. 226 gives power to the HC to issue discretions, orders or writs, it
empowers the HC to issue orders or writs in the nature of Habeas corpus,
Mandamus prohibition, Quo warranto and Certiorari or any of them for the
enforcement of Fundamental Rights and for any other purpose also. Thus the power
of judicial review of HC (under Art. 226) is wider than that of SC (under Art
The words for any other purpose
enable the HC to exercise their power
of judicial review for enforcement of ordinary legal rights which are not
Fundamental Rights. The jurisdiction of the HC under Article 226 for enforcement
of Fundamental Rights is mandatory whereas for the enforcement of ordinary legal
rights it is discretionary. Since the power of judicial review of the HC is
vested in it by the Constitution of India.
Hence, no measure of finality given by the legislature to any action or decision
can take away this power. The HC has the power to issue writ to a person or
authority, whose location or residence falls within the territorial jurisdiction
of the court; or if the cause of action wholly or partly arises within its
territorial jurisdiction. Therefore, a HC can issue writ even when the person or
authority is located outside its territorial jurisdiction.
However inState of Maharashtra v. Digamber
(2) andState of U.P. v.
Committee of Management of S.K.M. Inter College
, (3) the SC was of the
opinion that the power vested upon the HC under Art. 226 are discretionary and
the power cannot be exercised as a court of appeal. The jurisdiction is super
visionary in nature and it can strike down an impugned rule and direct the
authorities to refrain it but cannot itself refrain from it.
The jurisdiction of the HC for judicial review also extends to the Army law. The
court martial proceedings under the Army Act are subject to review by the HC
under Art.226 of the Constitution on India. However, court-martial is not
subject to superintendence of the HC under Art. 227.
Art. 227 invest in the HC the power of superintendence over administrative
agencies exercising adjudicatory powers. This power is both administrative and
judicial. This power of superintendence casts a duty upon the HC to keep
inferior courts and tribunals within the limits of their authority and in
accordance with the law. This jurisdiction of the HC is however limited and
restrictive in nature. Thus, the jurisdiction under Article 227 may be exercised
for want of jurisdiction, errors of law, perverse findings, gross violation of
the principle of natural justice and where finding of fact based on no evidence
resulting in manifest injustice. The SC observed in the case ofD.N. Banerji v.
P.M. Mukherjee,(4) that Art. 227 do not give the HC with unlimited power to
interfere with the administrative adjudicatory function.
The jurisdiction of the HC under Articles 226 and 227 are distinct and
independent of each other. The power under Article 226 can be exercised only on
an application but power under Article 227 can be exercised either on
application or suo moto. The power of superintendence of the HC under Article
227 extends not only to quash the decisions of tribunal but also to give
directions regarding disposal of the case. The power maybe exercised by the HC
either on petition from aggrieved person or suo moto.
Therefore the power of judicial review vested in the HC under Art. 226 and 227
are integral and essential feature of the Constitution of India and a part of
the basic structure thereof. Likewise the power of superintendence over the
decisions of all courts and tribunals within their respective jurisdictions is
also part of basic structure of the Constitution. The Constitutional protection
afforded to citizens would become illusionary if it were left to the executive
to determine the legality of its own action. And it is also well established
that the powers conferred on HC under Art. 227 of the Constitution cannot be
limited or circumscribed by any statute.
Article 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 honored by all
courts of the land. The S.C.I. has the innovative dominion in any disagreement
under Article 131 of the Indian Constitution for dispute between two States or
difference amongst Indian government and states one or more or between two or
more than two state. If the question involved of law and fact on which the legal
rights depend. The judicial review is subject to provision under the Article
131of the Indian Constitution.
Constitution Amendment Act, 1956, the seventh amendment of Constitution has made
it clear that the provision provided be going to not spread to the argument
ascending available of any arrangement, assignation, treaty, covenant, or
additional mechanism of a similar nature, which have been applied or executed
beforehand the implementation of the Constitution. But after the Constitution
came in force this jurisdiction is available.
The Article 132 of the Constitution of India has provides appellate authority to
the S.C. I. The person who is not satisfied with direction or verdict of the
High courts of states, might line of attack over and done with the plea to the
Indian Supreme Court, under this Article. The appeal to the Supreme Court of
India may be in criminal matter, civil matter or other matters. The appeal can
be made against final order, decree or judgment of High Court, within the domain
The word final order refers to order, which has been decided in favor of the
appellant. Under Article 132, the concerned High Court has to certify before
making the appeal to the Supreme Court under Article 134A stating, that the case
encompasses significant interrogation of rule. When the concerned High Court has
given such certificate to the party, the party might petition to the S.C.I. on
the basis of that, which has been alleged erroneously pronounced by the High
Under Article 133 judicial review can be made in the civil matters on plea from
the higher courts of states to the Supreme Court on receiving its final order,
decree of judgment of civil proceeding, within the domain of India. The
concerned High Court need to certify, under Article 134A, that the concerned
matter is having considerable interrogation of rule, which is of wide-ranging
reputation and the High Court should find that it has general importance and
required decision by the S.C.I. When a plea from the High Court has been decreed
the Indian Supreme Court, will not agree to plea to be made, unless the
Parliament of India, by law may remove its effect.
Under Article 133 of the Constitution, the Supreme Court has appellate
jurisdiction for judicial review, in respect of criminal matters. Any final
order or sentence and judgment, passed by the High Court, the person can file an
appeal against this judgment, to the S.C.I.
In case, the state's higher court,
in a plea on or after the subsidiary judiciary, has withdrawn for trial itself
or reversed the order of acquittal under which death sentence was awarded by
lower court or the state's higher court has sentenced to the accused and awarded
death sentence, who, earlier was acquitted from the lower court, the aggrieved
person can move for a plea to the S.C.I.
In case, the state's higher court has
particular that the case of criminal nature is fit for an appeal, under Article
134A, to the Supreme Court of India the appeal may be accepted. The appeal
necessity be trailed in the appropriate method as arranged under Article 145(1)
The Parliament of India further may, by law, grant to the Supreme Court any
other power to hear or entertain, an appeal from at all concluding directive,
judgment or decision of criminal proceeding of the state's higher court,
including conditions or limitations, which may be imposed or specified on or
after time to time in such legislation.
The obligation of documentation of appeal for the judicial assessment to the
S.C.I. has been avowed under the Article 134A. Under this Article, every High
Court, which has made or passed the judgment, final order, sentence or decree,
as referred to in clause (1) of Article 133 or under Article 132(1) or under
Article 143(1).The state's higher court might on its personal gesture or if it
is deemed fit to do so or if a verbal submission is completed by injured party
or on its behalf.
The High Court, will determine the matter applicable or not under Article
132(1), Article 133(1) and Article 134(1) C. Under Article 135, powers and
jurisdiction of the federal court for judicial review, which more than existing
one now work out by the Indian Supreme Court. Under this article the Indian
Supreme Court likewise has controls and influence in relation to any matter,
whether the provisions of the Article 133 or Article 134 are provided or not.
The power and influence of the Indian Supreme Court will also be applied on any
matter of judicial review, instantly beforehand the implementation of this
Constitution under any standing rule.
The Constitution has authorized to the Indian Supreme Court, under Article 136
of the power to grant special leave to plea. The Indian Supreme Court, on its
pleasure can award special leave to plea after any order or sentence, decree,
determination and judgment of any matter or cause, which has been made by any
tribunal or court in the domain of India. In the least tribunal or judiciary
established under any legislation in reverence to the Armed Forces, Article 136
of the Constitution is applicable to any order or sentence, determination, and
The exercise of jurisdiction conferred on the Supreme Court by article 136
consists of two steps:
- Granting special leave to appeal.
- Hearing the appeal.
The celebrated case ofKeshavanda Bharathi v. State of Kerala
, (5) the
Supreme Court of India the propounded the basic structure doctrine according to
which it said the legislature can amend the Constitution, but it should not
change the basic structure of the Constitution, The Judges made no attempt to
define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J
mentioned five basic features:
- Supremacy of the Constitution.
- Republican and democratic form of Government.
- Secular character of the Constitution.
- Separation of powers between the legislature, the executive and the
- Federal character of the Constitution.
He observed that these basic features are easily discernible not only from the
Preamble but also from the whole scheme of the Constitution. He added that the
structure was built on the basic foundation of dignity and freedom of the
individual which could not by any form of amendment be destroyed. It was also
observed in that case that the above are only illustrative and not exhaustive of
all the limitations on the power of amendment of the Constitution.
The Constitutional bench inIndira Nehru Gandhi v. Raj Narain(6) held that
Judicial Review in election disputes was not a compulsion as it is not a part of
InS.P. Sampath Kumar v. Union of India
,(7) P.N. Bhagwati, C.J., relying
on Minerva Mills Ltd. declared that it was well settled that judicial review was
a basic and essential feature of the Constitution. If the power of judicial
review was absolutely taken away, the Constitution would cease to be what it
was. In Sampath Kumar the Court further declared that if a law made under
Article 323-A(1) were to exclude the jurisdiction of the High Court under
Articles 226 and 227 without setting up an effective alternative institutional
mechanism or arrangement for judicial review, it would be violative of the basic
structure and hence outside the constituent power of Parliament.
The power of judicial review is not only an integral part of the Constitution
and but also an essential feature of the Constitution of India and a part of the
basic structure thereof, which cannot be abolished or whittled down even by an
amendment of the Constitution. In any democratic society judicial review is the
soul of the system because without it the democracy the rule of law cannot be
maintained. Thus, extraordinary jurisdiction of the Supreme Court under Article
32 or 136 of the Constitution cannot be taken away by legislation or principle
of election or estoppel or even by amending the Constitution.
Art. 136 which is in the nature of a residuary reserve power of judicial review
in the area of public law lays down that the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal.
The Art. 136 does not confer a right to appeal on any party, but it confers a
discretionary power on the Supreme Court to interfere in suitable cases to
advance the cause of justice. On one hand the power under Art. 136 is an
exceptional power which is to be exercised sparingly, on the other hand it is an
overriding power where under the court may generously step in to impart justice
and remedy injustice. =
The Supreme Court's power to grant special leave to appeal against decision of
administrative tribunals and other agencies, has been now regarded as an
important mode of judicial review of administrative adjudicatory actions. The
Supreme Court may exercise its power to prevent the miscarriage of justice where
there has been an illegality or irregularity of procedure or violation of the
principles of natural justice.
Under Article 143 of the Constitution, requirements are available that Indian
President can mention to the S.C.I. The President, if he feels at any time that
the question of law and fact is expected to rise or has ascended, which is in
the nature of public importance and convenience can take the opinion of S.C.I.,
and the S.C.I., subsequently enquiry the case can give opinion or recommendation
to the president. The President of India can also send argument between the
Centre and the State, as referred to in Article 131 of the Constitution. The
Indian Supreme Court, after hearing will grant its opinion to the Indian
President for promote achievement.
Article 246 (3) ensures the state legislature's 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 ground 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 constitution or the law infringes one of the
Under Article 251 provision is made that when there is contradiction between
rules made by the Assemblies of the states and the Parliament there shall be no
restrictions to state legislature to make law. However, if any law by state
legislature proved to be objectionable against the establishment of rule
completed and passed by the Parliament either after or before the state
regulation, the rule completed by the Parliament shall be prevailed.
Article 372 establishes the judicial review of the pre-constitution legislation.
With the right public awareness in India, every major government action on
judicial review is of the trend of legal development in India. Some executive
branches of government have begun to take the initiative to bring judicial
review of some controversial issues in order to reduce decision-making
responsibilities. From India, the development of judicial review and the basic
framework can draw the following conclusions.
- First, India is an important judicial review of the constitutional
system in Indian capitalism. The rule of law plays a positive role in
safeguarding the constitutional system.
- Secondly, the main function of judicial review of the system is to
balance the legislative and administrative constraints, and in essence is
the interests of all sectors.
The purpose of judicial review from the Indian courts is to establish the
constitutional principle of judicial review, as well as the expansion of
judicial review. The judicial review of constitutional governance is to be a
useful tool to play its effective role.
Courts need to balance different social interests, to take appropriate activism
or restraint doctrine in the judicial review and to consider many factors like
the laws of the policies and programs, the discretion granted to the target and
the nature and scope of the discretionary decisions that may affect the rights
and interests of the consequences. Finally, the development of judicial review
in India is inherited from the British colonial era and its constitutional
system and the product of common law judicial system is the capitalist nature of
the constitutional mechanism.
- M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive
Commentary on the Subject containing case-law reference (Indian & Foreign),
(Wadhwa and Company Nagpur, New Delhi, 6thEdn., 2007).
- Doreen Lustig,J. H. H Weiler,Judicial review in the contemporary
world—Retrospective and prospective,15 june 2018,https://academic.oup.com/icon/article/16/2/315/5036485.
- Ashwani Kumar, Constitutional Rights, Judicial Review and Parliamentary
Democracy,Vol. 54, Issue No. 15, 13 Apr,
- About The Supreme
- Prof. Narender Kumar, Constitutional Law Of India, (Allahabad Law
Agency, Haryana 8thEdn., 2011).
- 21 Ed. 60 (1803)
- 1995 AIR 1991, 1995 SCC (40) 683.
- 1995 (3) SCR 210.
- AIR 1953 SC 58
- AIR 1973 SC 1461
- AIR 1975 SC 2299
- 1970 AIR 118, 1970 SCR (2) 65