Doctrine Of Judicial Review: A Tool to Examine the Constitutional

Validity of Legislative, Executive and Judicial Actions

Dissertation submitted in partial fulfilment of the requirements for the

award of degree of

B.B.A.LL.B (Hons.)

Submitted To

Ms. Saumya Shukla

( Assistant Professor of Law)

Submitted By

Alisha Dargar

20190401006

Semester 10, Batch 2019-24

Unitedworld School of Law, Karnavati University

Uvarsad – Adalaj Road, Knowledge Village,

Gandhinagar, Gujarat, 382422

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 INDEX

Sr. No. Title Page

No.

1. Certificate iii

2. Declaration iv

3. Acknowledgement v

4. Table of contents vi-viii

5. Table of Cases ix- xi

6. List of Abbreviations xii – xiii

7. Content 1 – 93

8. Bibliography 94 – 95

ii

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 CERTIFICATE

This is to certify that the research work entitled “Doctrine of Judicial Review:
A Tool to Examine the Constitutional Validity of Legislative, Executive and
Judicial Actions” has been carried out by Ms. Alisha Dargar, Enrolment No.
20190401006, under my guidance and supervision. This research work is
submitted in partial fulfilment of the requirements for the B.B.A., LL.B.
(Hons.) degree to be awarded by the Unitedworld School of Law, Karnavati
University, Gandhinagar.

Name of the Supervisor/Mentor: Ms. Saumya Shukla

Designation: Assistant Professor

Date & Place:

iii

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 DECLARATION

I hereby declare that the Dissertation entitled “Doctrine of Judicial Review: A

tool to examine the constitutional validity of Legislative, Executive and
Judicial actions.” submitted to the Unitedworld School of Law, Karanavati
University for the award of degree of Law (BBA.LLB(HONS.) ) is a record
of original and independent research work done by me under the supervision
and guidance of Ms. Saumya Shukla, Assistant Professor, Unitedworld school
of Law, Karnavati University and has not formed the basis for the award of
any Degree, Diploma, Associate ship or other similar titles.

Name: Alisha Dargar

Enrolment No. 20190401006

iv

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 ACKNOWLEDGEMENT

On the very outset of this dissertation, I would like to extend my sincere &
heartfelt obligation towards all the personages who have helped me in
fulfillment this endeavor. Without their active guidance help, cooperation &
encouragement, I would not have made headway in this thesis. I am ineffably
indebted to Dr. P Laxmi (Dean, Unitedworld school of Law) for his
invaluable guidance and encouragement to accomplish this work. I extend
my gratitude to my guide Ms. Saumya Shukla for her constant support and
invaluable guidance each and every step during the work of dissertation. I
also acknowledge with a deep sense of reverence, my gratitude towards my
parents and member of my family, who has always supported me morally. At
last but not least gratitude goes to all my friends who directly or indirectly
helped me to complete this dissertation. Any omission in this brief
acknowledgment does not mean lack of gratitude.

Thanking You

Alisha Dargar

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 TABLE OF CONTENT

Chapter Title of Chapter Page

No. No.

1. Introduction (1 –
26)

1.1 Historical background 3

1.2 Judicial review- meaning and definition 4

1.3 Limitation of Judicial Review 8

1.4 Research problem 9

1.5 Research objectives 10

1.6 Research questions 10

1.7 Scope of the study 10

1.8 Research methodology 10

1.9 Hypotheses 11

1.10 Limitation of the Present Research Study 12

1.11 Scheme of chapters 12

1.12 Literature Review

13

vi

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2. Historical Development of judicial review ( 27
– 34
)

2.1 Judgement of Marbury v. Madison 27

2.2 Judicial review in U.S.A 29

2.3 Judicial review in United Kingdom. 30

2.4 History of judicial review in India 34

3. Constitution of India and judicial review ( 39

- 51
)

3.1 Nature and scope of “Judicial review” 40

3.2 Provisions related to judicial review under 42

Constitution of India

3.3 Public interest litigations as a source of judicial 51

review

4. Tussle for the supremacy between legislature ( 55

and judiciary - 64)

4.1 Tussle during 1950 to 1970 56

4.1.1 Effect of 1st amendment 58

4.2 Tussle during 1971– 1990 60

4.3 Tussle from 1991 to till date 64

vii

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5. Limitations of judicial review ( 69
–
78)

5.1 Constitutional limitations

70

5.1.1 Proceedings in parliament & state legislatures 71

5.1.2 Non-justifiable provisions of the Constitution 74

5.1.3 Legislative powers of the president & governor 78

and Emergency provisions

6. Conclusion and suggestions ( 82

–
93)

6.1 Hon’ble judge’s opinion about judicial review 83

6.2 Supreme court acts as interpreter and guardian 85

of Constitution

6.3 Importance of amending provisions under 87

Indian Constitution

6.4 Conclusion 88

6.5 Suggestions 90

viii

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 Table Of Cases

The list of important judicial pronouncement used in the dissertation is

enumerated as follows:

Sr. Name Of the Case

No.

1. ADM Jabalpur v. Shivkant Shukla, 1976 SCC 21

2. A.K Gopalan v. State of Madras, AIR 1950 SC 27.

3. Annie Besant v. Government of Madras, 1918 AIR 1210

(Mad.)

4. Anuradha bhasin & others v. Union of India, W.P. (C) N0

1031 OF 2019

5. Bhola Prasad v. Emperor ,72 Ind Cas 375

6. Champakam Dorairajan v. State of Madras case, AIR 1951

SC 226

7. Emperor v. Burah, (1877) 3 ILR 63 (Cal.)

8. L.C. Golaknath and Ors v. State of Punjab and Amr1967

AIR 1643

9. L. Chandra Kumar v. Union of India ,AIR 1997 SC 1125

ix

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10. Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217

11. J.P. Bansal v. State of Rajasthan , (2003) 7 SCC 121

12. K.S. Puttaswamy v. Union of India, AIR 2017 SC 1461

13. Keshavanad Bharathi v. State of Kerala AIR 1973 SC 1461

14. Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SCC

1159

15. Keshav Singh v. Speaker, Legislative Assembly,

AIR1965ALL349, 1965CRILJ170

16. Les Verts vs. European Parliament ,1986 E.C.R 1339

17. Marbury v. Madison, 5 U.S (1 Cranch) 137 (1803)

18. McCulloc v. Maryland, 17, U.S. (1990) 2 A.C 85.

19. Minerva Mills v. Union of India, AIR 1980 SC 1789

20. M.R.Balaij v. State of Mysore, AIR 1963 SCC 649

21. Mohd. Ahmed Khan v. Shah Bano Begum , 1985 SCR (3)
844

22. Navtej Singh Johar v. Union of India, 2018 (10) SCALE

386

23. PN Kumar v. Municipal Corp. of Delhi , 1988 SCR (1) 732

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24. Pandit M.S.M. Sharma v. Sri Krishna Singh, 1959 AIR
395, 1959 SCR SUPL

25. Re: Under Art. 143(1) of the constitution of India on

Principles and Procedure regarding appointment of SC
and High Court Judges v. Unknown, AIR 1999 SC 1, (3rd
Judges case).

26. Ratlam v. Vardhi chand, , 1981 SCR (1) 97.

27. Romaesh Thapar v. State of Madras, AIR 1950 SC 845

28. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

29. Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1

30. Syed T.A. Haqshbandi v State of J&K”, (2003) 9 SC 375

31. Secretary of State v. Moment, (1913) 40 ILR 391 (Cal.)

32. Shafin Jahan v. Asokan K.M , 2018 (5) SCALE 422.

33. Shakti Vahini v. Union of India, (2018) 7 SCC 192.

34. Shankri Prasad Singh Deo v. Union of India, AIR 1951 SC

458

35. S. P. Gupta v. Union of India , AIR 1982 SC 149

36. State (Govt, of Delhi's NCT) v. Prem Raj (2003) 9 SCC

592

xi

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37. State of Bihar v. Kameshwar Singh ,AIR 1952 SC 252

38. State of West Bengal v. Bela Banerjee, 1954 AIR 170

39. T.M.A. Pai Foundation v. State of Karnataka , AIR 2002 8

SCC 481.

40. Vinod Kumar v State of H.P, (2015) 3 SCC 220

xii

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 LIST OF ABBREVATION

The glossary of abbreviations used throughout the dissertation is enumerated

as follows:

& And

AIR All Indian Record

Anr. Another

Art. Art.

Cal. Calcutta

Cls. Clause

CrPC The Code of Criminal Procedure

DPSP Directive Principles of state policy

edn. Edition

F.C. Federal Court

FR Fundamental Rights

Govt. Government

HC High Court

Hon’ble Honorable

IPC Indian penal code

JR. Judicial review

PIL Public interest litigation

xiii

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 Raj. Rajasthan

SC Supreme court

SCC Supreme court cases

Sch. Schedule

Sec./s. Section

SLP Special leave petition

UDHR Universal Declaration on Human Rights

UK United Kingdom

UN United Nations

U.O.I Union of India

USA United states of America

v./Vs. Versus

Vol. Volume

WHO World Health Organization

WTO World trade organization

W.P(C) Writ petition (Civil)

W.P(Cr) Writ petition (Criminal)

xiv

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 CHAPTER-1

INTRODUCTION

In the today’s era law is of paramount importance as in the democratic state,

it is an essential tool of justice delivery system. Law without justice becomes
an important tool of dominance. The supreme Law of land is Constitution It
provides out the framework, process, authorities, and responsibilities of
various governmental institutions as well as the notion for defining basic
political ideals. The three essential institutions of state which regulate
government are namely executive, legislature and judiciary. The primary
function of legislation is to make laws and legislation also has power to amend
them or repeal them. Executive, which implements, executes or administers
laws. Judiciary is another important organ of a state. The key function of
judiciary is interpretation and enforcement of laws and to govern the justice.
In India we follow rule of law which mean law is supreme and men is below
law. The principle of rule of law has been taken from the common law and is
propounded by Dicey. In words of Dicey, it means “the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power,
and excludes the existence of arbitrariness....or even of wide discretionary
authority on the part of government.”1 Dicey further added more that “no man
is above the law but (what is a different thing) that every man, whatever is his
rank or condition, is subject to the ordinary law of the realm and amenable to
the jurisdiction of the ordinary courts2.”
One of the most significant sections of the government is the judiciary. In
addition to delivering justice to the people, the judiciary is responsible for
monitoring the actions of the legislature and executive branch to ensure that

1
Dr. Harichand, Amending Process in the Indian Constitution 34, (1972) .
2
Hannah Thompson, ‘ Approaches to the Rule of Law’<Approaches to the Rule of Law |
Rule of Law Education Centre> accessed 19 March 2024.

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they stay within the bounds of the Constitution and do not abuse their
authority.

The SC is the interpreter as well as protector. Judiciary is the third eye of the
Indian Constitution that protects and safeguards fundamental rights. Art. 129
of the Indian.

Constitution constitutes a “Court of Record” for the SC and gives all the
powers of such a court, including the authority to punish for its contempt.
When law is silent, judiciary is empowered to write the law. With the
responsibility of judicial review, the Indian Constitution established an
impartial and independent judiciary to review the decisions of subordinate
courts as well as its own decisions.

Now the question is what does judicial review mean? In simple words Judicial
review is the power of SC to review any law to find out if it is in contravention
with the specific provisions of the Constitution and declare any law
Unconstitutional if it is inconsistent with the Constitution or violates the
fundamental rights3. By judicial review the court keeps a check on the
arbitrariness of the powerful government. As Lord Acton said4, “Power tends
to corrupt and absolute power corrupts absolutely.”5 This quote rightfully
shows the picture of which might occur if there is no reign over the legislature
and executive. Judicial review is therefore the interposition of judicial
restraint on the governmental bodies such as legislative and executive.
Judicial review is the basic feature of modern Constitutionalism.

The “Judicial review” research is revealing and vigorous. It fosters

Constitutional understanding, moderates political vision, develops legislative
equilibrium, softens the judiciary’s mind, and alters Constitutional lapses.
Time to time it is observed that legislature and judiciary try to control each
other. In India there is always a tussle between judiciary and legislature in its

3
Rights, Emergencies and Judicial Review (Springer Netherlands, 1996).
4
Craig R. Ducat on Constitutional Interpretation, (Wadsworth Publishing, 10 edn.,,2012).
5
Negi Mohita, Judicial review in India: Concept, Provisions, Amendments and Other
Details, <http://www.yourArt.library.com/essay/judicial-review-in-india-concept-
provisions-amendments-and-otherdetails/24911> accessed 20 March 2024.

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fight for supremacy. The main aim of this study is to analyses the struggle
between the SC and the Parliament and to check whether the judiciary uses
the power of judicial review wisely or unnecessarily. When we look back at
the 69 years of working of the Constitution of India, we observe that the Indian
Parliament has frequently resorted to the practice of inserting Constitutional
Amendments as a measure to outwit the judiciary and this tussle has been
going on for quite some time. Judiciary is the means which can be resorted for
upholding fundamental rights and Constitutionality of law, whenever the
legislature comes up with less favourable laws6. This study will highlight the
present status of this fight for supremacy and also trace the history and the
effects it has on the Indian society at large.

1.1 Historical Background

Doctrine of judicial review has evolved from the landmark case of “Marbury
v. Madison7” before this case the congress used their powers arbitrarily and
judiciary was not allowed to check the Legislative acts passed by Congress:
Are they constitutional? However, the Supreme Court of the United States has
ruled in the present case that the judiciary had the authority to verify the
legality of an Act approved by Congress or to declare the Act null and void if
it conflicts with the Constitution or its provisions.

In colonial period that is at the period when India was under Britain, since
then there was no provision as such for the judicial review. The acts in the
colonial period like Government of India Act, 1858 and the Indian Council
Act, 1861 were there. These acts placed certain constraints on the power of
Governor General in Council in eluding legislation. As there were restrictions
on the powers of governor general only tribunal were authorized to investigate
or involve in the legislation.

Emperor v. Burah8 was a historic case in the Indian judicial system because
this was the case in which the court has recognized the doctrine of judicial
review. The honourable court held in this case that; “Any legislation to be

6
ibid.
7
Marbury v. Madison, ( n 7).
8
Emperor v. Burah, (1877) 3 ILR 63 (Cal.)

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made by the council of governor general must be within the scope of powers
granted to it by the imperial parliament. The council has to make the acts
within that prescribed boundary only, and once such power is used in the
excess by the council then the any party so aggrieved by such act is entitled to
challenge the constitutional validity of such acts.” Moreover, it was clarified
in this case that subject to certain restrictions, Indian courts shall also have the
power of judicial review.

In Secretary of State v. Moment9, Lord Haldane made an observation that “The

power bestowed by parliament through Government of India Act of 1858,.
regarding Indian subject, can’t be withdrawn through any legislation by
government of India.”

In Annie Besant v. Government of Madras10, madras high court observed that,

“Between legislative powers of the Imperial Parliament and that of Indian
Legislature there was a basic distinction. The power of the Indian legislature
being subordinate to that of the parliament is delegated one. If any law is
made by the Indian legislation in excess or contradiction to the powers so
delegated to them by parliament, then the act made by the Indian legislature
will be invalid.”
However some judicial review procedures are evolving, and the fundamental
principle that underpins this doctrine remains constant. In addition to the USA,
India, Australia, and Pakistan, Germany also applies the judicial review
theory.

1.2 Judicial Review- Meaning And Definition

The dictionary meaning of review is “the act of looking over something

(again) with a view to correction”. The legal meaning of term, accordingly, is
the revision of the sentence or decree of one court by a higher court.11

9
Secretary of State v. Moment, (1913) 40 ILR 391 (Cal.).
10
Annie Besant v. Government of Madras, AIR 1210 (Mad.).
11
Negi Mohita, Judicial review in India: Concept, Provisions, Amendments and Other Details
by, Published by your Art. library, Last update on May 2016, last visited on December 2019.

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According to BLACK LAW DICTORNARY, judicial review as “a court’s power
to review the actions of other branches or levels of government; especially,
the courts’ power to invalidate legislative and executive actions as being
unconstitutional”.12 This legal concept allows the judiciary, particularly the
Supreme Court, to examine and potentially invalidate actions taken by the
executive and legislative branches if they are found to be in violation of the
constitution13.

Judicial review- following are the few important definitions:

“Chief Justice Marshall” said: “undoubtedly every person, drafted the

written constitution considers it as the basic and supreme commandment
of the state, and as a result, the theory of every such government must be
that, any law made in contravention to it will be void ”14.

According to Ron Kind, “For more than 200 years, in constitutional

governments judicial reviews have been an essential element of our
democratic system.”

In Gobitis case 15
Justice Frankfurter, observed that “Judicial review is a
component of the Constitutional design of United States and a restriction on
elected government.”

“Judicial review entails monitoring the judiciary’s use of power over other
organizing government bodies to make sure that the remaining portion is kept
within the constitutionally required bounds of their authority”16.

12
Bryan A. Garner and Henry Campbell Black, Black's Law Dictionary (Thomson/West
2004).
13
Bryan A. Garner and Henry Campbell Black, Black's Law Dictionary (Thomson/West
2004).
14
Marbury (n 7).
15
Gobitis case, 310 U.S 586.
16
Edward McWhinney, Judicial Review (University of Toronto Press 1969) 48.

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“Judicial review is the authority and responsibility of judiciary to dismiss those
acts of executive and legislature that, according to the court are violative of
constitution”17.

In “A.K Gopalan v. State of Madras”18 Kania, C.J., pointed out that “all
the statutory laws shall be in accordance with the law of the land i.e.
constitution of India. Judiciary is empowered to decide the constitutional
validity of such acts and shall held it unconstitutional if violative of
constitution.”

In the hands of the judicial institution Judicial review is a wonderful

weapon. It is a court's power whereby it can state any legislation or Act,
directions passed on that Legislation or Act or other kinds of act done by
a public authority that is in consistency or conflict with the land's
fundamental law as violative of the constitution and hence void.

Judges have the authority to make decisions, and part of that authority is the
ability to interpret. Since the state's judiciary interprets legal text as a matter
of practice, it is the judiciary's exclusive responsibility to do so. This requires
interpreting the law for it to be applied.

The tribunal will examine the provisions of the Constitution and compare the
legislative authority the question of whether legislation is within or above
unconstitutional arises, for example, the parliament’s intention to regulate the
sub-constitutional law with its rules. It goes without saying that to do this, the
Constitution and any sub-Constitutional laws enacted under it must be
interpreted.

The Indian Constitution has provisions for judicial review. The Indian SC has
the authority to conduct judicial reviews under Art. 13(1) and (2).
Additionally, the Constitution forbids any country from interfering with the
authority granted to the other and divides legislative power between the

17
Sir Maurice Amos, “The Interpretation of statues”, 5
(Cambridge LJ, 1934).
18
A.K Gopalan v. State of Madras, AIR 1950 SC 27.

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 countries and the Centre. Who will determine whether an executive or a
parliament has acted outside of its jurisdiction or against any limits imposed
by the Constitution? It is clear that the courts were given this kind of authority.
The Constitution has come under fire from several members of the
Constitutional Assembly for being a potential lawyer’s dream come true.

Dr. B.R. AMBEDKAR defended “the provision of judicial review as

absolutely necessary and, according to him, rejected the above criticism, the
provision of judicial review and, in particular, the written jurisdiction which
gave prompt relief against the abridgement of fundamental rights constituted
the very soul of the Constitution”19.

There are following three aspects of judicial review in India

➢ Judicial review of the acts of Legislature - The Constitution split the

legislative power between the centre and the states and prohibits either of them
from interfering with the authority provided to the other-“Shankari Prasad’
case20, Sajjan Singh v. State of Rajasthan case21, ‘Golak Nath’ , ‘case22
‘Keshavananda Bharati’ case23 ‘Minerva Mills’ case24, and ‘Indira Gandhi”
case.

The validity test of Constitutional amendments is basic feature of the

Constitution of India. Judicial review in this category also relates to
fundamental rights violations or any other Constitutional or legislative
constraints.

Judicial review of the administrative action - Judicial review is not a "word

of art" in the age of increased administrative law relevance; rather, it refers to
the process by which judges examine and ascertain the legality of laws, acts,
and decisions. Judicial review, in this broad sense, entails examining the
multifaceted jurisdiction wielded by the award for legislative errors and other

19
ibid.
20
Shankri Prasad Singh Deo v. Union of India, AIR 1951 SC 458.
21
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
22
Golak Nath & Ors. v. State of Punjab & Anr, 1967 SCR (2) 762.
23
Keshwanand Bharati v. State of Kerala, AIR 1973 SC 1461.
24
Minerva Mills (n 24).

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 defects rendering it voidable rather than erroneous. There are others who argue
that the existence of a somewhat rigid written Constitution is the foundation
for the institution of judicial review.

➢ Judicial review of the Judicial actions - Judicial review is the power of

higher judiciary which is not only exercised by it to check the actions of
legislature or executives only. Higher courts are also authorized to do the
review of the decisions of lower courts.

Whereby Supreme Courts are also empowered to do judicial review of any

court within the territory of India as well as of its own decisions.
Pronouncements of decriminalization of section 377 is recent example of
judicial review by SC of its own decision.

1.3 Limitation Of judicial Review

Courts have the authority to declare any Act unconstitutional, but they do so
in accordance with the “Doctrine of checks and balances” that unites every
department, not putting the judiciary above the others. It is accurate to state
that the courts have broad authority to examine statutory and constitutional
requirements. However, these abilities must be used with extreme caution and
restraint. The judiciary shouldn't exercise its judicial review authority beyond
what is permitted. The parameters for judicial evaluation of statutory and
constitutional provisions are entirely different.
In J.P. Bansal v State of Rajasthan25 S C observed that “It’s true that this court
respects the freedoms provided by the Indian Constitution that cannot be used
to interpret a statute. If magistrates make their own desired modifications to
the status that their procedure has demonstrated has led to court members
before whom the matter appears to be harmful to the public, then it jeopardizes
the public's ongoing interest in the judiciary’s impartiality, which is crucial for
the continuation of the rule of law.
There is no opportunity for the court to make mistakes or take on the duty of
changing the statutory provisions where the language is unambiguous, there is

25
J.P. Bansal v State of Rajasthan , (2003) 7 SCC 121.

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no room for ambiguity, and the legislature's objective is apparent. The judge
in this case shouldn't state that they are merely acting as legislators to display
judicial optimism. Though it is a narrow line, they have to keep in mind that
the adjunct and the law are two separate things. It is not appropriate to cross
or remove this line. This can be made sure of by both a trained desire to cross
it and an aware acknowledgment of the necessity not to do so out of impulse”.

In case the court The balance between the three sovereign organs of the
Constitution will be upset, and the Constitutional mandate will be
compromised, should the court fail to recognize the importance of judicial
wisdom.

The SC has taken a serious check on the disturbing exercise in State (Govt. of
Delhi's NCT) v Prem Raj26, when A high court went over the limits and
reduced the punishments. The SC observed that, “The relevant government
has all authority over the switching power. The useful authority is either the
federal government or the state government, depending on whether the
sentence or order refers to a topic that falls under the Union's executive
authority. The High Court's order is so overturned”.

1.4 Research Problem

The Legislature is a composition of party politics and the rule making power
vests in the hands of the Legislature. Thus, it is obvious that the legislature can
make law according to its will. Hence, there must be an authority to check its
enactments. If there is no authority to check its enactments, then the laws will
be arbitrary and archaic in nature. The limitation of powers is one of the most
important aspects of the modern democratic written Constitution.

Moreover, it is equally important that while exercising the power of check on

the arbitrariness, judiciary shall not go in excess of its powers. Separation of
powers is essential for the proper governance of any system in any country.
Without separation of powers, the governance will assume the nature of

26
State (Govt. of Delhi's NCT) v Prem Raj, (2003) 9 SCC 592.

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 dictatorship and act arbitrarily. So, this study is carried to find out the scope
of that judicial check on the enactments of legislature executives and judicial
actions and to analyse that whether by doing the same judiciary can be said to
have encroached into the spheres of other organs.

1.5 Research Objectives

The objectives of this research study are enumerated as follows:

1. To find out and deduce the limitations if any on the doctrine of judicial review
taken into consideration the principal of separation of power.

2. To study, understand and examine the exercise of power of judicial review in

the United Kingdom and United States.

3. To find out the number of occasions and common ground used by the SC and
High Court while assailing an Act by exercising the power of judicial review.

1.6 Research Questions

The Research questions of this research study are enumerated as follows:

1. How the concept of the judicial review has evolved in India and its
surrounding jurisdictions?

2. What is the nature and scope of judicial review in India and its surrounding
jurisdictions?

1.7 Scope Of The Study

Given the complex and diverse features of Indian society, the scope of judicial
review must be imperative that the scope of judicial review be expanded. The
current political climate in India is not particularly cordial, and the ruling party
may enact laws that are unpleasant to satisfy its own whims. As a result,
limiting the scope of judicial review would be detrimental to the advancement
of Indian democracy. To what degree judicial review elasticity is useful,
however, depends on the judicial reason and wise judicial view in each
situation.

10

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The study aims to trace the disagreement between the Indian Supreme Court
and the Parliament. The functions of the three organs executive, legislative,
and judicial as well as the boundaries of those functions have been adequately
defined by the Indian Constitution. It is expected that no organ will infringe
upon or take on the role of another, nor will it exceed the boundaries outlined
in the Constitution. Should one organ go beyond its bounds and get involved
in the other’s domain, it would be deemed a violation of the “Constitutional
Faith.” The study examines the origins, development, application, and
constraints of judicial review authority.
The study attempts to examine how the judiciary occasionally uses this
authority to defend fundamental rights and essential elements of the Indian
constitution. The study also looks at how the legislature can exercise its
authority to modify the basis of past judicial rulings retroactively through
amendments, therefore negating their impact. The study demonstrates how
India became an effective democratic nation as a result of this struggle
between different organs.

1.8 Research Methodology

The primary research source for this study is doctrinal work. It is essentially
created using data from both primary and secondary sources. Other statutes,
rules, regulations, legislative policies, orders, notifications, etc. have been
referred to and examined in the primary source, the Indian Constitution, and
as secondary sources, reputable books, research articles from newspapers and
reputable journals, papers and websites, reports, etc. have been referred to and
examined.
Thus, it covers three dimensions: the examination of pertinent constitutional
provisions, the analysis of pertinent judicial review rulings, and the
examination of scholarly viewpoints derived from books and articles
published in the specified periodicals.

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1.9 Hypotheses

While judicial review is established in U.S. constitutional law, there are critics
who disagree with the doctrine, questioning its basis and application,
suggesting that it may lead to judicial overreach.

The concept of judicial review, originating in the United States, has had a
transformative effect globally, influencing modern governance by
empowering courts to review legislative and executive actions for compliance
with constitutional principles

1.10 Limitation Of The Present Research Study

This research study covers wide areas of subject. There are enormous judicial
pronouncements pertaining to the subject of instant study by the Hon’ble SC
and High courts of India but, only few of them has been utilized in the instant
study. Though there are number of cases relating to instant study decided by
the U.S. Supreme Court, only few of them are covered and relied upon in this
study as this study manly covers the cases decided by the courts in India. The
instant study also touches various social sciences but it is mainly confined to
the field of law alone.

1.11 Scheme Of Chapters

The schemes of chapters of this research study are enumerated as follows:

First chapter deal with the introduction of topic; consist of significance of

problem, followed by, research object, research question and scope of study.
It covers the primarily introduction of concept.

Second chapter deals with the history and evolution of the judicial review that
is how the concept of judicial review came into picture. Chapter highlight the
nature and scope of judicial review in USA, UK and India.

Third chapter deals with the various provision of Indian Constitution

pertaining to judicial review along with their nature and scope.

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 Fourth chapter mainly concern with the tussle for supremacy between the
judiciary and parliament, it covers the struggle & fight for supremacy between
the judiciary and legislature in different time period.

Fifth chapter deals with the various limitation of judicial review.

Sixth chapter deals with the summary of the work thereby stating conclusion
and suggestions of the research study.

1.12 Literature Review

Sr Nature Name of Covered\ review Research Intended Research

No of literature Gap in
literature

1. Book Judicial The constitutional Specific Restrictions on The constitutional

Review in ability of courts of Judicial Review in ability of courts to
Law law to ascertain Various Legal Systems. assess whether
whether actions The restrictions that government activities
performed by the apply to judicial review are constitutional has
superior or inferior in various legal systems been the subject of
branches of can change based on the much scholarly study.
government are particular jurisdiction This process is known
constitutionally and context. as judicial review.
lawful is known as variations in political The evolution of
judicial review. systems, legal customs, judicial review
Judicial review in and cultural norms that throughout history and
contemporary may have an impact on its function in
democracies how judicial review is restricting the authority
presents a unique conducted and how of individuals qualified
problem: how to successful it is. to interpret laws have
defend restrictions been studied by
on majority rule. These limitations academics.
demonstrate the

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 continued necessity of
giving considerable
thought to and analysing
the function and
significance of judicial
review in various legal
systems.

2. Journal Judicial The original The study offers an Even in its activist
Article Review of database of innovative perspective phases, the Court
Acts of instances where the on the Court's use of the upholds significantly
Congress, Court examined judicial review authority more federal legislation
1789- the legality of throughout American against constitutional
2006 federal statutes is history by introducing an challenges than it
provided, and the original dataset on the invalidates or restricts.
article covers the judicial review of federal The policies that were
judicial review of acts from 1789 through declared illegal and
federal statutes 2006. those that were upheld
from 1789 through The dataset is utilized to differed in ways other
2006. evaluate widely held than their ideologies,
The analysis, beliefs regarding the indicating that the
which focuses on Court's use of its judicial Court and Congress's
laws that have been review authority, and overall ideological
challenged as some evidence in favour inclinations may not
unconstitutional by of those beliefs is adequately account for
the Court, raises discovered. the politically
the possibility that significant aspects of
less consequential the law.
statutes could be It is possible for the
more susceptible to analysis of a single
judicial judge's voting
nullification. behaviour to differ from

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 The study also the analysis of the
looks at the institution's overall
ideological behaviour.
differences
between Congress Throughout its
and the Court, existence, the Supreme
measuring partisan Court's docket has seen
alignments with significant changes.
terms like divided
Congress and
opposite-party
Congress.

The results indicate

that, although there
have been
disparities in the
degree of activism
between
conservative and
liberal Courts, both
have utilized the
power of judicial
review in a fairly
impartial manner.

3. Journal Judicial Through the the examination of the By analysing the court's
Article Activism practice of judicial Supreme Court's decisions and
and the review, the SC has changing involvement in pronouncements, this
SC of even structurally resolving socioeconomic article explores the
India altered the matters and how this evolution of judicial
Constitution, as affects policy. activism at the Indian

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 demonstrated in the evaluation of how SC since independence.
the case of Shiv judicial activism and It defines distinct stages
Sagar Tiwari v. restraint are balanced in of this evolution,
Union of India. the Indian setting. highlighting the court's
The SC has the examination of the emphasis on
maintained judicial obstacles and complaints safeguarding
review and the the SC has encountered fundamental rights,
separation of while engaging in conserving the
powers as judicial activism. environment, entering
fundamental into the socio-economic
elements of the domain, and
Constitution by intervening in matters
invoking the theory pertaining to
established in transparency and
Kesavanand honesty in public
Bharati. To sum up, office.
the sources discuss The Islamic Academy
the idea of judicial of Education v. State of
review and how the Karnataka (2003 6 SCC
Indian SC applies 697) and J.P.
it to a variety of Unnikrishnan v. State
situations, such as of Andhra Pradesh
legislative cases (1993 SCC(1) 645) are
and constitutional two examples of
interpretation. specific cases and
rulings that the paper
uses to highlight the
court's use of tools like
Public Interest
Litigation (PIL) and the
exercise of writ
jurisdiction.
The author examines

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 how these court rulings
have affected the
established principles
of the legal system and
the division .

4. Book Evolution The SC of India's Researchers could also It is possible that the
of Judicial judicial activism look into how judicial writers carried out an
Activism: has its roots in the activism affects India's extensive analysis of
The years following the interaction between the extant literature, court
India Emergency of judiciary and other parts rulings, and historical
1975–1977. of government, as well as records in order to
Since the the division of powers. determine the
Emergency, beginnings and
judicial activism direction of judicial
has been more activism.
widespread, They might have also
especially after conducted a qualitative
2000. examination of
The activism of the pertinent cases and
SC has brought up legal doctrines
legal and economic to analyse the legal and
issues that have economic concerns
been debated in brought on by judicial
legal and academic activism.
circles.

5. Journal The It talks about the The evaluation of the It is important to

Doctrine 'Basic Structure' 'Basic Structure' maintain that research
of 'Basic doctrine as a doctrine's consequences is an essential

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Structure' constitutional idea, and efficacy in upholding component of academic
in the how the concept the fundamental ideals and scientific inquiry
Indian has developed via and concepts of the and that it advances
Constituti the courts, and Indian Constitution. knowledge and
on: A some specific cases The 'Basic Structure' idea comprehension across a
Critique that have been is compared to related wide range of
linked to it. The R. doctrines found in other disciplines.
Coelho case (2007) constitutional systems. Scholars utilize several
and the Pramati approaches, including
Educational and literature reviews, data
Cultural Trust case gathering, testing, and
(2014). Part II analysis, to explore
discusses the research inquiries and
"Basic Structure" augment the extant
idea in relation to corpus of knowledge.
the constitution. Usually, the goals of
The judicial research are to solve
journey and the issues, discover new
evolution of the information, validate
"Basic Structure" hypotheses that already
concept from exist, or venture into
Shankari Prasad v. unexplored territory.
State of Rajasthan
(1965) are covered Creating research
in Part III. Punjab questions, planning
State (1967). studies, gathering and
Kerala State evaluating data, and
(1973). The forming conclusions
constitutional- based on the results are
unconstitutional all steps in the research
game that process.
Parliament played Research is a
with the continuous and iterative

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 Constitution's process in which new
Ninth Schedule studies add to and
and the broaden the body of
implementation of knowledge created by
the 24 April 1973 earlier investigations.
theory in the I are
discussed in Part
VII. Section VIII
addresses the
Pramati Cultural
and Educational.

6. Article Tug of This page covers However, it offers a The document provides
War the distribution of thorough historical and on the complexities of
between powers, the modern analysis of the the interaction between
Judiciary historical context relationship between India's legislature and
and of the Indian India's legislature and judiciary, both
Parliamen independence judiciary, as well as historically and
t: A movement, the particular instances of currently. It refers to
Burning impact of conflict and pressure particular instances of
Question American and opinions on how the friction and
British policy on legislature and judiciary disagreement as well as
the Indian share power, and an differing opinions
Constitution, the understanding of how about how power is
role of the complex this relationship distributed between the
legislative and the is. If so, a more thorough two arms of
judiciary, and examination of the government.
more. The underlying factors that
viewpoints of contribute to the conflict
various parties and tension between the
about the legislature and the
separation of judiciary in India might
powers between be conducted.

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 the legislature and
the judiciary, as
well as the
judiciary's duty to
uphold the
Constitution, are
also discussed.
This study offers a
thorough analysis
of the connection
between India's
legislature and
judiciary,
emphasizing the
constitutional,
historical, and
practical
dimensions of this
authority. In
addition to
providing concrete
examples, it gives
lawmakers
suggestions for
how to maintain
the proper balance
of power between
the legislature and
the court system
and, finally,
emphasizes how
crucial it is to
uphold the

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 Constitution.

7. Website The Role The document The document offers a The publication
of Indian offers a thorough full and comprehensive provides a
Judiciary summary of India's summary of India's comprehensive
with judicial system's judiciary's function as overview of intellectual
Special function as well as well as intellectual property rights (IPR)
Reference intellectual property rights (IPR). A and the role of the
to Global property rights more focused analysis of Indian judicial system.
IP Regim (IPR). All things academic papers, court However, it doesn't
considered, the rulings, and policy particularly address any
paper does a good documents pertaining to research gaps about IPR
job of outlining intellectual property and the court. If the
India's legal rights and the Indian objective is to identify
system, its judiciary would be research gaps, a more
commitments advantageous in order to focused analysis of the
abroad, and the fill up knowledge gaps. body of literature in this
judiciary's role in This could make it easier area, case studies, or
protecting to pinpoint particular actual data relevant to
intellectual areas in which more intellectual property
property rights. study is required to rights and the judiciary
improve knowledge and would be necessary.
efficiency in the area of
intellectual property
rights.
A more focused
analysis of academic
papers, court rulings,
and policy documents
pertaining to
intellectual property

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 rights and the Indian
judiciary would be
advantageous in order
to fill up knowledge
gaps. This could make
it easier to pinpoint
particular areas in
which more study is
required to improve
knowledge and
efficiency in the area of
intellectual property
rights.

8. Article Judicial The document The paper primarily By the authority of

review - A gives a thorough addresses the EU's trade judicial review, the
brief introduction to the defense measures and Indian judiciary can
analysis idea of judicial their review by the examine legislation and
review in India, courts, with an emphasis orders to verify that
including its on actions taken during they are
background, key anti-dumping or anti- constitutionally sound.
cases, and subsidy procedures. It To guarantee the
constitutional does not, however, offer preservation of each
requirements. In a thorough examination person's fundamental
order to guarantee of the difficulties in rights and the balance
the preservation of pursuing an action for of power between the
fundamental rights annulment under Article union and the states, the
and the balance of 263 TFEU or an action judiciary has the
power between the under Article 265 TFEU. authority to examine
union and the It also doesn't look into laws at the federal as
states, it highlights possible restrictions on well as state levels.

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 the judiciary's the EU Courts' precedent
authority to regarding standing in
examine and trade defense under
overturn laws that Article 263(4) TFEU.
contravene the
Indian
Constitution.

9. Book Judicial Judicial review is The article provides a An outline of the legal
Chapter review of the process by synopsis of the legal theories controlling
agency which the courts theories governing the judicial review of
action in review and may US judicial review of agency acts in the US is
the United modify decisions agency acts, but it does given in this study.
States made by the not attempt to support its It talks about how
legislative or claims with specific case administrative law
executive branches studies or empirical changed in the middle
of the government. research. to late 20th
A legal theory the theories of judicial century when
known as judicial review, particularly the substantive reviews of
review enables potential for judicial agency policymaking
federal courts in overreach and how it and stronger procedural
the US to evaluate might impact agency restrictions were
federal agency decision-making implemented.
actions to see if processes. The scope-of-review
they comply with the evolving nature of theories that federal
the law and the judicial review in light of courts have used to
Constitution. contemporary issues with agency findings of fact,
administrative law, like policy, and law are

The judicial review the impact of technology examined in this study.

procedure is or the changing It emphasizes that

governed by legal composition of the although major agency

concepts. Courts executive branch. policy choices are

scrutinize agency subject to "reasoned

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 fact, policy, and decision making" or
decision-making in thorough examination of "hard look review,"
different ways. the Chevron doctrine, courts often apply
Courts usually taking into account its rationality review to
assess agencies' effects on the agency findings of fact
rationality because interpretation of statutes, and policy conclusions.
they have greater its applicability in
awareness of various situations, and
The Chevron doctrine,
factual findings any possible
which directs courts to
and policy contradictions between
accept an agency's
decisions than do the judiciary's legal
reasonable
courts. interpretation duty and
interpretation of
But important respect for agency
ambiguities in a statute
agency policy competence.
it administers, is also
choices might be The study leaves out any
covered in this chapter.
vulnerable to a discussion of the possible
The legality, specific
more thorough effects of judicial
nature, and
examination called
effectiveness of the
"reasoned decision
concept have all been
making" or "hard
the subject of debate.
look review." The
The study, however,
Chevron principle
includes particular case
is a crucial
studies, empirical
research, and a
thorough examination
of the drawbacks,
restrictions, and current
problems with judicial
review.

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10. Book M.P Jain, The article in According to the The Supreme Court's
“Indian question addresses document that was advisory power under
Constituti the Supreme provided, the Supreme Article 143 of the
onal Law” Court's advisory Court's advisory Indian Constitution is
(5th edn.. jurisdiction as jurisdiction and the thoroughly examined in
2003) granted by Article President's authority to the paper "Analysis of
143 of the Indian consult the Court are the Article 143 of the
Constitution. It main topics of discussion Indian Constitution." It
clarifies the when it comes to Article addresses the Supreme
President's 143 of the Indian Court's discretion to
authority to confer Constitution. It also accept or reject a
with the SC and discusses the binding referral, the President's
request its ruling nature of the Court's authority to consult the
on matters of fact advisory opinion, the Court for advice on
or law. The text discretion of the Court to matters of fact or law,
also addresses the accept or reject a and the advisory
binding nature of reference, and gives opinion's binding
the Court's instances of references nature. It also contains
advisory opinion, made in accordance with instances of references
the discretion of Article 143. made in accordance
the Court to accept with Article 143.
or reject a
However, the publication
reference, and If you want to carry out
fails to focus on any
offers instances of additional study on this
research gaps in the
references made in subject, you can look
literature concerning
accordance with into particular cases or
Article 143 of the Indian
Article 143. It also situations in which the
Constitution. You might
notes that the Supreme Court's
need to perform a more
President has only advisory jurisdiction
thorough analysis of
used Article 143 under Article 143 has
scholarly publications,
fifteen times. been used, as well as
legal comments, and
. the influence of the
academic papers about
constitutional law and Court's advisory

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 the SC of India's opinions on legal and
advisory jurisdiction if constitutional issues in
you're searching for India.
research gaps in the You can additionally
literature on this subject. immerse you in
This will assist in academic debates
identifying particular concerning the practical
regions that require more implementation of
investigation or Article 143 in Indian
examination. government and legal
decision-making, as
well as its
consequences for the
constitution.

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 CHAPTER 2

HISTORICAL DEVELOPMENT OF JUDICIAL REVIEW

The legal system that has today did not just appear overnight. It has evolved
and is influenced by several historical periods. However, the previous several
decades have had the biggest impact on the system as it exists now. The legal
system of now has been greatly influenced by the ancient world. The judicial
system handles the application of the law through representation in court. It
offers a method of resolving disputes where a party seeking redress goes to
court. When there is a lack of grievances being settled, no society can afford
growth. Judicial review has a lengthy history, to be sure. The history of judicial
review, the emergence of this theory, and its global development will all be
covered in this chapter.

Opinion of various honourable judges of western legal system represents the

expansion of the set of principles such as justice, equality, holiness and
freedom in their society. Both the procedure and the institutional arrangements
are necessary and equally essential to understand and set up these values. This
development established the rule of separation of power. The contemporary
thought of judicial review was established in seventeenth-century in England,
where people believed that the monarch was above the rule; his decision was
questioned and it was thought that the monarch was not above the rule, he has
to abide by the rules. The procedure and the practice were strengthened by the
higher courts, obtaining an exceptional degree of public esteem and ensuring
the independence of the managers.

Historical research goes back to the fourth century. In 415 BC, the Athenian
legal system had a method known as "Graphed Paranomon” to test the various
laws, which were put forward by the legislative body of Athens that was in
contravention to the already prevailing law. A member who is male could
question the legitimacy of such proposed legislation, and if the panel of
adjudicators cancels this law, then the supporter of the same would be

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punishable, generally with a fine.27 That’s what shows the example of judicial
review at that time.

In 1610, an English judge, Lord Edward Coke, observed in Bonham's famous

case: “In our books it seems like that in several suits common law will rule
over the Acts of Parliament, and at times it is totally null: because when
Parliament's act is contrary to the law and common reason, or is repugnant
or unenforceable, it will be controlled by customary law and will declare the
law null and void.” For the first time, the case of Bonham also known as the
case of judicial assistance. In 1767 was drawn up significantly in this case
Constitutional lawyer James said “the law to use research orders that did not
stimulate the research's object.” Jame’s challenge was based on the basic act
of the Parliament in the Bonham case. James contended that: “Parliament
wasn’t the ultimate authority to decide on the law made by it and claimed that
it is for the judiciary to decide whether a statute is valid or not. This
contention predicted that rule of the constitution of America according to
which it is the duty of the judiciary to declare the statutes unconstitutional,
null and void”28.

Then the passage of evolution of what we now appreciate as judicial review

was through Alexander Hamilton's thoughts, which authorized this
proposition into its ideological foundation.

In his book he wrote on page number 67; “Whosoever conscientiously looks

at the various other branches of power should recognize that, in an
administration in which these have been detached from one another, the
judicial system, from the essence of its operation, shall for all time be the very
little hazardous to constitutional rights. The judicial institutions cannot
persuade over authoritative power or monetary benefits or both. It cannot way
towards both potency and prosperity or both. No matter what, it can’t take
any kind of vibrant verdict.”

27
Cortez, A.M., Ewing & Jewell Cass Phillips, Essentials of American Government,
(American Book Co., New York, 1962)
28
Cortez, A.M., Ewing & Jewell Cass Phillips, Essentials of American Government,
(American Book Co., New York, 1962).

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Amendment number five and fourteen that of the constitution of America take
up to the rule of the ‘Due Process’, this was done with the motive to restrict
the scope of the doctrine of judicial review. Though an attempt was made to
restrict the powers of honourable apex court in but in 1803 in the case of
Marbury v. Madison29 ,In 1803, as determined by the honourable chief justice
Marshall, it had sustained as a vital and crucial branch that of the composition
of the government of America.

2.1 Judgement Of Marbury v. Madison

The Marbury case is known as the mother of the Doctrine of judicial review.
This year we are celebrating the 217 anniversaries of this judgement. To know
more about the judicial review and its evolution it is important to analyse the
instant case. The brief facts and judgment of this historic case are as follows.

Brief Facts: Preceding the President Jefferson's investiture, sociable President

Adams tried to take federalist judicial control with the creation of new judicial
posts under the control of federal government and recruiting for those posts.
These acts were complemented by the fresh appointment of forty-two District
Judges by President himself in accordance with the Organic Act of the
Columbia’s district. It was approved by the Senate the day earlier to the
induction of President Jefferson. The president Jefferson had not received
some commissions including Marbury’s commission .The new president
ordered the James Madison (Secretary of state) to hold back delivery of
commission. After that Marbury issued a mandamus against the Madison in
the SC of USA to surrender the commission.30
The honourable court in instant case held : “ The basic principle on which the
entire American structure has been built is the people's fundamental right to
form, for their future government, such principles as they believe shall most
conduce to their happiness. The previously stated principles are considered
fundamental.

29
Marbury (n 7).
30
Marbury (n 7).

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This original and final will set up the government and allocate the various
powers to the various departments. the Constitution is written to deny and limit
the powers of the legislature, and to ensure that these limitations are
remembered and adhered to. Without a doubt, everyone who has created a
constitution views it as the primary and essential legislation of the country,
and as such, If a law conflicts with the Constitution or if both the law and the
Constitution apply in a certain situation, the legislature’s act is null and void.
Which of these rules applies in this situation must be decided by the court.
Interpreting the law is the rightful and particular domain of the courts. If,
therefore, the courts are to consider the Constitution, and the Constitution is
superior to any ordinary act of the legislature, the Constitution, and not such
ordinary act, must control the matter to which they both pertain. Judges have
an obligation to view a Constitution as a basic law. Therefore, it is their
responsibility to determine its meaning as well as the meaning of each specific
act that comes from the legislative body”.31

Now a day’s Judicial Review is very popular doctrine and it is widely accepted
by many nations of the world, the concept of judicial review is widely
welcome and recognized by various other nations like Austria, Germany, S.
Korea, S. Africa, Pakistan, Australia and Spain. But in this Chapter, focus will
be on origin, development, and current scenario of judicial review of the
countries mainly America, England and India. This Chapter also focuses on
similarities and difference of Judicial Review in America, England and India.

2.2 Judicial Review In U.S.A

The fundamental principles of the American constitution are the separation of

powers and the concept of check and balance, which are provided by the “due
process of law” clause. Judicial review in America simply refers to the
Supreme Court’s authority to evaluate laws passed by Congress and declare
them unconstitutional if they do not comply with the Constitution.

31
ibid.

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 We have previously covered the history of judicial review in our “historical
background” lesson. We now know that America was the nation that gave rise
to this incredible concept. We also need to understand the goals that underpin
this doctrine. The three primary goals of judicial review are as follows:
1 Declare any statute unconstitutional if it conflicts with the United States
Constitution.
2. Verify the legality of legislation that are contested as being unlawful.
3. Maintaining the constitution’s primacy is the other goal.

On the other hand, the American judicial review system was built with
significant assistance from the due process of law doctrine. The Fifth
Amendment of the Constitution has led to an extremely expansion of the scope
of judicial review. One of its provisions states that no one shall be deprived by
the government of his right to life, property, or other rights if the legal
procedures are not followed.

The concept of “Due Process of Law” states that no one’s property, existence,
or independence may be subjected to capricious and unfair limitations by the
government, the executive branch, or even the court system when enforcing
the law. It simply refers to a trial that is fair, free, and intended to achieve the
goal of justice. This idea was applied by the Apex Court in deciding which
legislation was legitimate.

The SC while conducting judicial review, tests

i. As to whether or not the law was strictly complied with by the provisions of
the Constitution.
ii. As to whether the law meets the objectives of justice and whether it respects
the “due process of law”, does it mean that it is just and not fair?

The law is declared null and void, if you do not pass any of these two tests.

Before the Marbury case32, The United States SC did not have the jurisdiction
to rule that any legislation was unconstitutional. However, the American SC
began to exercise this authority with full judicial authority following this

32
Marbury (n 7 ).

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ruling. The concept of judicial review expands freedoms, and it
strengthens both an individual’s civil liability and their degree of individual
liberty protection. Following are the relevant cases which are expend the
theory of judicial review in America after the Marbury vs Madison as follows:

In McCulloch v. Maryland 33, The U.S. government and the state government
were at dispute in this instance. In reality, the US government opened a bank
in the state of Maryland called Bank of America. The bank was subject to a
tax by the Maryland state government. It was questioned whether state
governments could tax the federal government. The SC of the United States
of America, exercising its power of judicial review, determined that the State
government lacks the right to impose any taxes on union authority. This ruling
established the notion of instrumentality the development of immunity.
In Youngstown Sheet Tube Co. v. Sawyer44, In order to prevent national
problems at the time, the US president signed legislation authorizing the
seizure of all citizens' steel. Using judicial scrutiny, S.C. prudently concluded
that the president lacked the authority to enact laws, and as a result, any
legislation enacted by him was deemed invalid by the court.

2.3 Judicial review in United Kingdom.

The history of judicial review in the United Kingdom can be traced back to the
17th century, to the case of Dr. Bonham v. Cambridge University34. A judicial
review was established in England as a result of Justice Lord Coke’s decision
in this case in 1610. But Chief Justice Holt remarked in City London v. Wood35
observed that “Despite the fact that it possible that legislature can do few
things which may look extremely weird, but Law passed by legislature can’t
do any injustice.”

This given birth to the principle of Parliamentary Sovereignty. As per this rule
the judicial institutions were having no power to check the validity of the law
made by legislature. In United Kingdom, there exist a structure that was based
on superiority of government and sovereignty of Parliament. So, at that time

33
McCulloch v. Maryland, (1990) 2 A.C 85.
34
Dr. Bonham v. Cambridge University, (1610) 8 Co. Rep. 107 77 Eng. Rep. 638.
35
City London v. Wood, 12 Mod. 669, 88 Eng. Rep. 1592 (K.B. 1701).

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there was no existence of judicial review. But however, after the evolution of
European convention judicial review came again in picture. After that law of
human right that of 1998 also increased the use of judicial review in England.

However legislative sovereignty still holds move, these conventions provide

for the use of judicial review in primary legislation under specific conditions
and at any time in secondary legislation otherwise.

What is meant by secondary legislation is now the question. In England, there

are two different kinds of legislation: secondary legislation, which consists of
acts of ministries and regulations, and primary legislation, commonly referred
to as “parliamentary sovereignty.”

The European Convention had a significant effect on the United Kingdom and
the English legal system. Following this convention, the administrative court
can request judicial review in the following ways:
1. Claimants can dispute breaches of Community Law, Parliamentary Acts,
and actions by public authorities.
2. Claims can frequently be restricted to EU-enforced legislation.

In the case of R v. Secretary of State for Transport36, Court remarked that , “a

person might be competent to defy the law made by legislature and state them
illegal reckoning the prima facie impact that of community law. Every law can
be called for judicial review on basis of its consistency with Community law,
i.e. legislation either primary or secondary and that of administrative
rulings.”

In, Les Verts vs. European Parliament 37

, it was held that the EU is, “an
association which is built upon on the Rule of law, so far as both the states
which are its member as well as its organizations evade a review of the issue
that whether the law approved by them are in consistent in the midst of the
fundamental temperament and spirit of constitution.”

36
R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603.
37
Les Verts vs. European Parliament ,1986 E.C.R 1339.

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2.4 History Of Judicial Review In India

Some restrictions were imposed in the influences of the Governor-General

Council under the Government of India Act, 1858. The judiciary had
endowment of judicial review, with such powers; the court can use the same
only by implication.

Section 22 of the Indian Council Act, 186138, “it places down the
Constitutional limitations in mounting legislation by legislative council of
Governor General, this provision of the Act stated that the assumed
association shall not have the gear stick to generate any canon or parameter,
which shall withdraw or any method affect the requirements of this Act. It is
clear, therefore, that the law-making council of the Governor-General were
passed any measures, which will not be valid, until the assent of the Governor-
General was not received ”.

In case of “Emperor v. Burah Book Singh” The Calcutta high Court held that
“legislature made by the Governor general, by crossing the scope of authority
granted to him through imperial parliament, the party so suffered due to this
had the right to encounter such legitimacy of the law-making Act”. The Lord
Haldane, in the Privy Council case of Secretary of State for India v. Moment
(1913), laid down the judgment, wherein he states that “the rights of Indian
peoples celebrating Parliament under the Government of India Act, 1858,
cannot take away through legislation”.
In the case of Annie Besant v. Government of Madras39, special Bench of
Madras High Court held “that any law passed by the Indian legislature that
exceeds the authority granted by the parliamentary system of India or
violates the restrictions placed on the legislature would be declared null and
void. In this instance, the court further noted that there was an important
change in the relationship between the legislative powers of the Indian
legislature and the parliamentary authority of India”.

38
The Indian Council Act, 1861, s.22.
39
Annie Besant v. Government of Madras, AIR 1918 MADRAS 1210.

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In case of “Bhola Prasad v. Emperor40 , The federal Court of India’s Chief
Justice observed that “the India legislature within its own sphere had enough
power of legislation, same as the Parliament itself has. It cannot be less true
in 1942, while it was true in 1878”.

The legality of the Indian Legislative Acts is examined by the Federal Court
and state supreme courts. The Indian SC is descended from the Federal Court,
which was established to establish a great tradition. However, the Government
of India Act, of 1935 does not clearly establish judicial review in a broad
sense. The judiciary had to revamp the judicial review of legislature Acts due
to legitimate issues that came before it.

After the few months of the commencement of the Constitution Indian

judiciary played an active role to protect the rights of the individuals. For the
purpose of protecting these rights the power of judicial review was exercised
by the Indian judicial system. To give less effect to the power of judicial
review the Indian legislature enacted many laws. For instance, in Romesh
Thapar case41, Kameshwar Prasad case and Champakan Doirajan case many
Acts were declared unconstitutional by judiciary. To nullify the judgments of
the SC the parliament of Indian inserted 9th schedule by the 1st amendment of
the Constitution.

The Act which comes under the 9th schedule was not subjected to judicial
review. In Shankari Prasad v. Union of India42 case, where the 1st amendment
of Constitution was challenged, the court held in this case that the word “law”
in Art. 13 of the Constitution includes only ordinary law and does not include
“Constitutional Amendments” that are made in the exercise of fundamental
power. In the case of Sajjan Singh v. State of Rajasthan43 , the SC ruled that
the word ‘Constitutional amendment’ means power of amending all
Constitutional provisions. However, SC In Golak Nath v. State of Punjab44,
overruled its previous rulings made in the case of Shankari Prasad and Sajjan

40
Bhola Prasad v. Emperor ,72 Ind Cas 375.
41
Romesh Thapar, AIR 1950 SC 124.
42
Shankari Prasad ( n 18).
43
Sajjan Singh ( n 21).
44
Golak Nath ( n 22).

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 Singh by majority 6:5 and ruled that Parliament could not change fundamental
rights because these rights are entrusted to the transcendental position of our
Constitution. In Keshvananda Bharati v. State of Kerala45, also famous as
Fundamental Rights case, SC overruled the judgment given in Golak Nath case
and held that parliament can amend the any provisions of Constitution
including fundamental rights but cannot amend the basic structure of
Constitution46. However, in famous I.R Coelho case held that the 9th schedules
also subject to the judicial review. These are few of the various instances of
use of judicial review after the commencement of Constitution.

1.5 Judicial review in USA, UK and India: comparison and similarity

The extent of judicial review in India is greater than in the United States and
the United Kingdom. The US Constitution is a rather brief document. In
another regard, when it comes to exercising its right to amend under Article
368, the Indian Parliament acts similarly to the Constituent Assembly.

The Constitution of the United States is the strictest Constitution in the world;
it is very common and widespread. Despite the strict and flexible nature of the
Indian Constitution, it is complete law having covered almost all aspects and
is the lengthiest written and richest Constitution of the planet.

The language and phrase in the Indian constitution are definite and accurate.
On the other hand, in UK, the constitution is not written one therefore and the
United Kingdom's judicial review has a very incomplete, limited nature.

The Indian Constitution contains specific and comprehensive provisions of the

Judicial review, such as ,“Art.13,32,131,136,143,226,227,246,372”.
Although there is no mention in these Art.s of the term “Judicial review,” it is
implicit in these Art.s. In American constitution Art 3, 4 and 5 deal with
judicial review.

45
Kesavananda Bharati (n 23).
46
Golak Nath ( n 22).

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Art.13, of Indian Constitution provides for judicial review of Pre-
Constitutional and Post - Constitutional Laws, whereas the judicial review of
Pre-Constitutional Laws is not in use in the United States and the United
Kingdom. The exercise of the rule of judicial review in India is that of 3 kinds
i.e. the Constitutional Amendment Judicial reviews, Administrative Acts and
Legislative Act. While in the United States, Constitution is very inflexible in
nature, the U.S. is very hardly ever used to review Constitutional amendment.
however, the SC has the power to scrutinize the law and administrative act.
Although there is no scope in the UK, to verify the validity of the legislative
acts of Parliament, less important laws are subject to judicial review47.

In the UK, Constitutional democracy was dominated by parliamentary

sovereignty; parliamentary acts cannot be challenged in any court for any
reason. Whatever legislation Parliament passed, whether it is unjust and unfair,
it cannot be held accountable to any court. On the other hand, Constitution is
supreme law in India and the U.S.A., if some legislation contradicts it; the
judiciary has the power to check its Constitutional validity.
The expression “Due Process of Law” enlarges the scope of judicial review in
the court of United States. For substantive reasons and procedures, the U.S.
SC worked with caution to determine the legality of the law. In India, the term
“procedure established by law” It is set out in the Constitution rather clearly.
This clause gives the Court the authority to deem Acts undesirable based only
on their content. In India, the judiciary does not have the authority to make
laws because this is the responsibility of the legislature. The Court's role is
limited to interpreting and making decisions regarding the law. However, the
US judiciary has the authority to make laws as well as strictly examine current
ones. As a result, laws made by judges in the US remain in effect.

The scope of the judicial review of administrative acts is substantially wider

in each of the three nations. All presidential activities, if they are inherently
irrational, fraudulent, or unlawful, are subject to court decision. Every

47
Abhinav Rana, ‘Judicial review’,( July 24, 2022) < https://blog.ipleaders.in/all-about-
judicial-review/>accessed 19 March 2024.

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administrative or ministerial act that exceeds his authority may be contested;
in all three nations, the ultra vires theory is in place.

The authority of courts in the United States and India to review and determine
the validity of laws is far greater than that of UK courts when it comes to
making decisions about laws prior to the Human Rights Act and the European
Convention on Human Rights. As of right now, the situation has evolved;
judges are now susceptible to judicial activism aimed at formulating a set of
guiding principles. In contrast to the US and India, UK courts are now subject
to a greater degree of judicial review.

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 CHAPTER 3

CONSTITUTION OF INDIA AND JUDICIAL REVIEW

One of the main characteristics of judiciary is the power to judicial review. It

is the jurisdiction of the SC and the high court’s to analyses the
Constitutionality of parliamentary laws, including the state's legislative
bodies, executive command of governmental institutions of the union and
state. If its provision is found to be in breach or in contravention of the
Constitutional provisions, then they may be declared to be unconstitutional
and the government cannot enforce a law confirmed unconstitutional by the
Supreme Court48.

In India Judges have the jurisdiction of judicial review and they have power
to declare any provision or an Act unconstitutional if it is found to be in
contrary to constitution of India. Further India’s SC has the duty to clarify
and protect it. It also acts as the de-facto protector of people’s fundamental
rights.

India's Constitution is the supreme law of land. Hon’able apex court is

entrusted with the obligation to illuminate and guard it. Apex court also
safeguards the fundamental rights of the people of India. Due to this rationale,
it utilizes doctrine of judicial review to decide the Constitution validity of
various legislations. The Apex court has the power to deny any law or any of
its parts unconstitutional. Power of judicial review can also be exercise by the
High Court, but the Apex Court may reject or amend the decision of high
court.

According to the Redform49, “Judicial review is the power of a court to

enquire whether a law, executive order or other official action conflicts with
a written Constitution, if the court is of the opinion that there is confliction,
then it can be declared that law unconstitutional and void”. Alexander

49
Routledge Handbook of Rewilding (Routledge 2022).

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Hamilton who is one of the framers of 1789 American Constitution said, one
can find the basis for judicial review in the ‘Federalist’. He also wrote,
“Interpreting the legislation is the appropriate territory of the judiciary. In
reality a constitution has to be upheld by the judiciary being the act of
paramount importance. For that reason, it is for the judiciary to determine
the gist of it as well as that of other legislations50.” Moreover, he adds that
judges must consider the Constitution as supreme, and if there is any dispute
between the Constitution and the law, the constitution will prevail and this
later become the foundation of judicial review. With using this power, the
Judiciary maintains the law-making and decision-making body within the
Constitutional umbrella. It is an example of how powers are separated in a
modern system of government.

3.2 Nature And Scope Of “Judicial Review”

Every country has its own way in exercising power of judicial review. It can
be understood by two types. The power of judicial review can be authorized
by two systems i.e. the Common Law System and the civil law system or the
theory of democratic superiority of legislation and theory of separation of
powers. To exemplify, in the UK, which is a country of common law,
parliamentary sovereignty has been established and therefore judicial review
of legislative acts is not allowed. On the other hand, Constitutional supremacy
prevails in the US of America. Similarly, in India, as the Basic Structure of
Constitution and Constitutional Supremacy was established, the Doctrine of
Separation of Powers allows the legislative acts to be reviewed as well.

Application of the doctrine of judicial review is not absolute but is based on

the various restrictions explicitly stated such as in “Art.s
12,32,74,77,105,163,166,194,212,226 of the Constitution”. It is found in res
judicata and in waiver, etc.; the Apex Court has developed certain self-
imposed restrictions on its power of judicial review.

Nevertheless, it has been held in several cases that only through judicial
review can the Apex Court act as the guardian and protector of the civil

50
Edward Elgar Publishing, eBooks (Edward Elgar Publishing 2022).

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 liberties in democratic form of government. In the case of Keshavanand
Bharti51, “judicial review was affirmed as the basic feature, and such is not
allowed to be amended by the legislature.”

Judicial review’s extent, in India is adequate to allow the Apex Court to

become a commanding authority to organize the actions of the executive and
legislature. Dr. Ambedkar said that “Art. 32, is the heart & soul of the Indian
constitution, it is the provision of paramount significance in the Indian
constitution.”52 Art. 32 not only guarantees “the right to file writ in SC by
way of proper procedures, to make fundamental rights enforceable but also,
empowers the apex Court to make any such directions, suitable, for making
fundamental rights enforceable.”53

Art. 32, therefore provides a cost-effective and swift means of protecting the
fundamental rights of executive and legislative intervention. on the other
hand, a plead under Art. 32 may be made to confront the legitimacy of a law
by referring to provisions apart from those relating to primary rights, provide
that they unavoidably cause an unnecessary constraint on the lawful exercise
of fundamental rights.

The Apex Court shall not deny aid under Art. 32 on the contention that the
human so suffered might have approached other court for the same. He does
not need to wear out the other remedy before proceeding apex court. The
contentions shall be investigated before the aid being granted.

In the case of , PN Kumar v. Municipal Corp. of Delhi54, the Apex Court

ruled that people must not go directly to the S.C to enforce their elementary
rights, if the parties are unsatisfied with the decision of the H.C, they can
appeal to the S.C through a plea. The apex court set out the given guidelines
for the implement of the right under Art. 32 to dispose of the petition:

1) The extent of Art. 226 is larger as compared the Art. 32.

51
Kesavananda Bharati v State of Kerala (n 23).
52
J.N.Panday, “Constitutional Law of India”, (central Law Agency, 51th edn..2015).
53
Ashoke Kumar Deb, “Indian Bar Review”,(Vol. XL, 4th edn. 2013) .
54
PN Kumar v. Municipal Corp. of Delhi , 1988 SCR (1) 732

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2) The Indian High Courts have their own tradition and eminent judges/ lawyers.

3) SC is over burden because there are so many disputes pending

from last various decades.

In the case of Kanubhai Brahmbhatt v. State of Gujarat55 , the SC

ordered the applicant to go to high court first before coming to it.

3.2. Provisions Related To Judicial Review Under Constitution

Of India

The matter concerned the judicial review of administrative achievement,

which has generally complicated the base of the principle of common law
such as the principle of proportionality, the principle of legitimate
expectation, the principle of reasonableness and the principle of natural
justice. The Constitution has authorized the high court and SC of India to
examine the validity of various administrative accomplishments and
legislations.

The foremost role of judicial review is to preserve the various civil liberties
and to put the fundamental rights into operation as affirmed in the
Constitution.

Art.13 (2) of the Constitution of India considers that no legislation will be

created across the country that would shorten or adopt the law, as stated in its
third part, in sight of the significant fundamental rights of the Indians. Every
law established in contravention to Art.13 (2), it shall fall within the scope of
the violation and be stated invalid. The Art.13 (3) states the meaning of law.
It includes the custom or usage, bye-law, ordinance, regulation, order,
notification, and rule that apply in India. The meaning of the applicable law
means that a law adopted or approved by the governing body or the competent
authority in the states of India has entered into force. This law or part of it has
not been revoked earlier or at a location that is not in use, can be considered

55
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SCC 1159.

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valid laws56.

Doctrine of judicial review, has grown in 3 aspects, before the Indian

judiciary the first and foremost is, to safeguard the legitimacy of
indispensable privileges provided as fundamental rights under third Part of
the Constitution of India, second one is, to empower the indifference of
organizational attainment and third is, the examination public interest among
the relationship between state and Centre.

As provided in Art. 32 of the Indian Constitution, India’s Apex Court have

the joystick to uphold the fundamental rights. Indians are entitled under Art
32 to move the apex Court straightforwardly in search of relief for the damage
to the basic rights. However, the fundamental rights privilege is itself part of
the Indian public's fundamental right.

If there is any conflict of relationship between the Center and the state, Art.
246 of the Indian Constitution evidently differentiated the functioning region
among the authoritarian building reins of state legislators and the
parliamentarians. The higher judiciary comes up to apex Court once an issue
is raised in the public importance and the validity of an act57.

Wherever the Apex Court of India is authorized to put in force these rights
by way of writ petitions, such as that of habeas corpus, which communicate
the modus operandi, the release of a person on or subsequent to the unlawful
detention, quo-warranto that guides the individual to quit the post which was
held illegally by them, mandamus mandates a public authority to carry out
its work, certiorari, which instructs the courts to withdraw the matter from
subordinate judiciary and proceeding with the case. Other than S.C of India,
the higher judiciary of the state has the authority under Art.226 of Indian
Constitution to apply the writ, in case of violation of fundamental rights in
disparity to the people of India.

The Art. 32 of the Constitution is interpreted ingeniously into the form of

ground-breaking remedy to make sure that the administrative authorities shall

56
ibid.
57
ibid.

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obey the decisions of the court. In the matter pertaining to of public interest
litigation the private remedies are being applied by the judiciary such as stay
orders, injunctions, etc., which are vital to put in force, for the sake of the
public.58 Various instances, of the late 1970’s are, the public affable system
was allied with the public interest litigation. The purpose of the courts was
the development of the right to use fairness in support of persons who were
not capable to move to the courts because of scarcity of resources or lack of
knowledge of lawful privilege.

The judiciary permitted the advocates to solve the public issues of public as
representative of judiciary. In various matters, on the writing, which were
addressed to the sitting judges, the judiciary has also taken the suo-moto
cognizance, which concerned the violence against bonded workers,
detainee’s and fellow of mental institutions. The usage of commencing
proceeding has been modernized, on the foundation of those writings, and
nowadays it has been called as jurisdiction of epistolary.59

In matter concerning adversarial legal proceedings, the character of

proceeding doesn’t robust well in the common law structure. In public
interest litigation, the judicial measures are diverse from usual criminal or
civil petitions. The adversarial setting can exist; where events are tinted on
the offensive acts of government censure or the administrative ennui. In most
of the public interest litigation, judicial actions undoubtedly have been of an
added vital character. It places queries to the litigants in order to discover the
resolution particularly in the course of requisite action for make sure that of
the proper measures are taken to protect the environment or to make
government answerable and responsible. Generally, the orientation
procedures are much akin to that of solving the crisis together.60

The framers of the Constitution of India have made the capacity for judicial

58
K. .G. Balakrishnan, ‘Growth of Public Interest Litigation in India’, Fifteenth Annual
Lecture, Singapore Academy of Law, Oct.8th, (2008).
59
Susan D. Susman, “Distant voices in the Courts of India: Transformation of
standing in Public Interest Litigation”, Wisconsin International Law Journal, Vol. 13,
(1994).
60
Ashok H. Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’
available at: http://www.ielrc.org/content/a0003.pdf, (last visited on December 2019).

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appraisal, based on the United States Constitution. Parliamentary controls
according to the Constitution of India are divided amid the nation and the
states. The SC of India has an impact on the evaluation of legislation that has
been approved by the legislative bodies of both state as well as that of union.
Judicial review was decided by the Constitution of India before the superior
courts of the state and before the SC of India.

Under Art.32 the privilege of legal remedy is granted in the form of

fundamental right. The individual whose rights are so infringed shall move
to the apex court, by appropriate procedure for implementation of his
fundamental rights guaranteed under the third part of Indian constitution. The
Apex Court of India has persuaded, for orders, directions and writs, to be
produced, which shall be appropriate for the execution of fundamental rights
by way of any of the writs.

The legislature has been empowered to control or authorize a little more to

the judiciary, for working outside their restrained boundaries, of this one
authority under clause (1) and (2) of Art. 32. Though, the authority entrusted
upon SC of India under Art. 32 can’t get suspended, independently from as
otherwise accessible from the constitution of India.

The Apex Court of India has the pioneer dominance in case of the disparity
under Art.131 of the Constitution of India, for quarrel among state
governments or amongst union government and state government at one side
or greater than two state governments. When the issue involves the mix-up
of law and fact, at what the lawful rights are dependent, the judicial review is
subject to Art.131 of Constitution of India.

The Art.132 of the Indian constitution states the appellate jurisdiction of the
SC of India. Person so aggrieved with the decision of high courts of the state
have the privilege to file appeal in the Hon’able Supreme Court. The appeal
to the SC can be filed in the matters such as civil, criminal or both. The
appeal can be filed in the SC of India on matters pertaining to verdict, final,
order or judgment of various high courts which are situated in the territory of
India.

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To file appeal under Art.132 certificate under Art.134A has to be applied
from the deciding high court. The certificate shall state that the matter holds
a major interpretation of law.73 It is only after receipt of such certificate from
the concerned, high court that party may file an appeal before, the Hon’able
SC of India, alleging that matter so disposed by the high court is wrongful.

As per Art.133, civil matter may be taken for judicial by the Hon’able SC on
the approval of high court, upon receipt of their final resolution, a decree on
a civil trial in court proceedings in India. The High Court in question,
according to Art. 134A, must confirm that the matter in question has a
considerable interrogation of the rule that it has a broad reputation and that
the High Court must be of general importance and require a SC decision.
When the superlative Court's complaint was declared, the SC of India will
not accept the action unless the Indian Parliament can by law rule out its
effect.

The apex court possesses the jurisdiction in connection with the appeal in
matter containing criminal elements. Appeal can be filed as per the provisions
of Art.133 of the Constitution. Any final judgment or sentence and judgment
passed by the High Court may be appealed to the highest Court of India
against this judgment.

In the event that, in a plea on or after the learned subordinate judiciary, the
higher court of the state has withdrawn for trial itself or reversed the acquittal
order under which the passing away sentence was award by the lower court
or the higher court of the state has sentenced the accused and sentenced him
to death, who had previously been released being found not guilty from the
learned subordinate court, the person so aggrieved may plead before the apex
Court.

If, the concerned high court particular that the criminal case is vigorous for a
petition pursuant to Art. 134A, the appeal may be accepted to the absolute
Court of India. The necessity of appeal must be traced in the appropriate
manner as laid down in Art.145 (1) (c).61

61
Constitution of India 1950, art 134

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Furthermore, the Indian parliament can empower the Hon’able apex court, by
law, various other additional powers to consider and admit an appeal from
any of the learned subordinate Court's directives, judgments or decisions of
criminal proceedings, inclusive of the various terms and or restrictions that
may be enforced or specified either on the time of passing that law or
afterwards.

Art.135, empower the Hon’able SC of India with the power which the federal
courts were having before the constitution of India commenced. It states that
in the matters where the provisions of Indian constitution such as Art. 133 &
133 are not applicable, but that matter is such that if there would have been
federal court which was there before the Indian constitution commenced in
that matters the SC will have the power to entertain those cases, however
this provision also provides that if parliament wishes, it can take away those
powers by passing an act.

Under Art.136 Hon’able SC is empowered with extraordinary jurisdiction.

It is said that the SC is the highest court to appeal, and this Art. justifies the
same as under this provision the court can grant the special permission to
plea. Once a decree, sentence, order or judgment of matter or issue, passed
by any court or tribunal, within Indian and even though that particular law
does not empower expressly any appeal to SC then also, the plea for appeal
can be filed in the SC of India. And if SC thinks fit the matter can be admitted
as appeal purely on the discretion of the Hon’able court.

Under Art.143 of the Constitution have the discretion to proceed with the
request of the President of India. President is empowered with the discretion
to consult the apex court of India in any matter pertaining to public
importance. If president think that it is necessary to take the opinion of SC
regarding any question of law or fact, it may refer the same to SC for its
advice. Proceeding to the request the SC may after investigating the matter
give its opinion to the President of India. This provision also empowers the
president that he can seek the advice of SC in the matters of the disputes as

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referred in Art.131.62

Art.145 deals with the law-making powers of judiciary, for the practice &
procedures to be followed in the SC of India. The consent that of the
President of India, for the same is foremost.63 It outlines the various rules and
procedure such as regarding fee, granting bail, stay of proceedings, enquiries,
for entertaining appeals, etc.64.

Under Art.226 the High Courts have been empowered to entertain the writs
as provided under Art. 32 but this provision is not a fundamental right, itself
like Art. 32. Where the fundamental rights of any individual are infringed all
over the India the high court has the authority to entertain that matter, and in
suitable matter to direct, instruct, command or issue writ for execution of the
fundamental rights, which have an effect on the public enclosed by the
authorization of the concerned high Court. High courts are also empowered
to issue stay order, injunction or any interim order in the matter concerned.
However, the reasonable opportunity of being heard shall be provided by the
high court to such party against whom it is taking measures. Application
might be filed in the concerned high court for the annulment of orders, or the
copy of the orders so made by the court and such copy asked may be
furnished by the court.

The above said application has to be disposed of by the Hon’able high court
within the time period of 14 days. In case of failure to do the same the interim
order, so passed by the court shall elapsed by itself mechanically. So, the
application is required to be disposed of within the provided time span of 14
days. The authority possessed by the Hon’able high court under Art.226 must
not be get overpowered by the virtue of Art.32.

Under Art.246 law has to be made by the state and central government within
the scope which has been provided by the 7th schedule of the constitution of
India. The state legislature is empowered to make the law on state list that is

62
‘Judicial Review of Administrative Action’, ‘Judicial Review of Administrative Action’ (31
December 2001).
63
J.N. Panday ( n 52 ).
64
ibid.

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list 2 in the 7th schedule and central government i.e. parliament is empowered
to make the law as provided in list 1 of the same schedule. There is list 3 also
i.e. concurrent list in which both state and Centre are empowered to make the
laws. However, it is the central act which will prevail over the state act in
case any law is conflicted between the acts of Centre and state governments.
In the matters which are not provided anywhere that is none of the three lists
in that case it is the parliament who is empowered to make the law.65

Art.251 of the Indian constitution, clearly states that whenever there arises a
conflict between the legislations passed by state assembly and the legislation
passed by the parliament then it is the parliamentarian law which will
prevail. Although this does not give the unlimited powers to the parliament
of India because if the parliament will interfere within the authority of state
legislature it is the central legislation which will be held void66.

Art.372 of the Indian constitution states the prerequisites of protraction in

potency of existing laws and editions. The law had been annulled by the
constitution of India in connation to Art.395.altough with connection to other
provisions of the constitution, the whole laws which are existing in the India
even before the constitution was commenced shall be in the force unless and
until such laws are annulled or repealed by the competent legislation. The
laws which are existing at the point of time is considered to be constitutional
unless and until the contrary is proved. President of Indian may, direct such
laws to be modified or repealed if he considers necessary to do the same on
the advice of council of ministers.

According to Art. 372, in any legislation, the President of India is empowered

to do the various alteration or variation after completion of 3 years from the
period Constitution commenced. He is also having power to avert other
capable authorities or the legislatures from doing the above said things.

The word “law” as stated in explanation II shall be construed as the law which
has been enacted by the authority which is entitled to do the same and if such

65
Preece RJC, ‘Federal German Emergency Powers' Legislation’ (1969) 22.
66
ibid.

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law was having extra territorial jurisdictions as made before the constitution
being commenced in that case it shall continue to be having extra territorial
jurisdiction67.

The tactic of judicial review has been predominantly adopted by the issuing
various writs to award the privileges for the appeal before it or to provide any
bizarre aid and to order the seizure of the property. Apex court is highest
court to entertain the writ petitions under Art.32 although the high courts are
also empowered under Art. 226.

There are 5 types of writs namely, mandamus, prohibition, quo warrant to

certiorari, habeas corpus.

Writ of Certiorari is the power whereby the higher courts i.e. high court or
SC as the case may be directs the learned subordinate court to it to forward
any matter and the material related to that matter before it which has been
already disposed of by the lower court.

The writ of prohibition looks although similar to writ of certiorari but there
is a difference. It is pertinent to note that both are used against the subordinate
judiciary by the higher judiciary. But the writ of certiorari comes at a stage
when a person has not used the writ of prohibition.

If writ of prohibition is the precaution, then the writ of certiorari is the cure.
Because the prohibition is used when the matter is pending in the subordinate
court and the other one is when the matter is disposed of by the court. Hon’ble
Mr. “Justice V. Iyar” made a difference between them. He stated that if the
subordinate court has in excess to its jurisdiction has entertained a case, then
in that case the person so aggrieved can approach higher court by the writ of
prohibition to stop it. When the case has been entertained as well as disposed
of by the subordinate court in that case the person so aggrieved can approach
the higher court to make the said order set aside.

The word Mandamus means “to command”. It is the command by the higher
judiciary to the public body or authority to perform its legal and public

67
ibid.

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functions which they have failed to do.

The word ‘Habeas corpus’ is comes from the Latin dictionary that means
“you should have a body”. In order to issue a writ of habeas corpus, which is
a permissible exercise, the person who is seized must be brought before a
judge or a magistrate for taking him for pre-trial detention.

This writ was originally evolved from the common law system, although it is
now a legal right in all democratic states of the globe. In case of arbitrary and
unlawful detention or arrest the person so aggrieved shall approach the higher
court for his freedom.

The Writ of “Quo-Warranto” is directed not in favor of the person who has
the privilege of government or public office in any function. The term quo
warranto means “by what authority”. The court issues a quo-warranto writ as
a lawsuit in which a person who has a privilege of government or public
office where individual rights are affected is challenged. The court issues a
quo-warranto writ order to the person concerned, which should explain the
status of the public office.

Wherever the privileges of individual are detained as a public authority, the

court may express to the person not to take out any public activity in the
workplace. The court can also pronounce to vacate the public office. The
court will issue the writ of quo-warranto afterward the studying the
circumstances of the matter.

The writ of quo-warranto is to show the lawfulness of the public authority. It

is generally issued in cases pertaining to illegal selections and elections in the
public posts.

3.3 Public Interest Litigations As A Source Of Judicial Review

Public interest litigation has played a major role in the development and
protection go the legal rights of the society. The rule of public interest
litigation is the concept evolved by the judiciary itself. It has been done by
the judiciary to let the legal rights being entertained by and knowledge reach

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to those sections of our Indian society who are powerless, knowledge less and
therefore is being exploited by the powerful. There exists a section of people
who really can’t afford to entertain their rights even after knowing that such
kind of rights exists. Although it is an irony that India is second fastest
growing economy in the world but there are people who don’t even know
their fundamental rights due to economical, or social disadvantageous.

The rule of “locus standi” is not taken into consideration in the public interest
litigation, making the procedure more liberal and easily approachable. By the
means of such liberalization a new termed called “representative standi” has
been evolved.

In S. P. Gupta v. Union of India68, the petition was regarding the political

interference in the appointment and transfer of the judges of SC and high
courts. It was contended that there shall be no intervention by the politics in
the appointment and transfer of judges which has been done by the
government at the time of emergency. That the judges and appointment shall
be done by the chief justice of India with the consultation of the two seniors
most judges of the Supreme Court.

The rules were made for the filing of PIL. Any person who is aware of any
wrong being done or is aggrieved of any wrong can file in the SC the public
interest litigation for a collective cause. That is not all the persons has to file
the litigation in the court individually, but only one or few can file on the
behalf of all collectively and remedy so given will be for all.

The court however held that such petition shall not be politically motivated
and have malafide intention. The person shall have the genuine cause for the
betterment of the public at large.

Justice P.N. Bhagwati said that in case when there exist a class of persons
whose rights are so damages and legal wrong has been done and such persons
are not able to approach the judiciary due to the economic or social causes
in that cases any person having interest can file application in the court.

68
S. P. Gupta v. Union of India , AIR 1982 SC 149.

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In this landmark case for the first time the access of judicial review was given
in the form of public interest litigation

By the way of public interest litigation, the court has given the access to those
persons who are having interest in the public causes and social causes to file
the petition before it on the behalf of those persons who are unable to
approach it due to various circumstances.

There is no need to go to the lower court before coming to SC of India; the

person so interested can directly file the petition in the SC of India on behalf
of such section of community who are depressed, powerless, and poor.

By the way of public interest litigation court is not only encouraging the
people of India to abide by the fundamental duties among them are the
promotion of harmony and spirit of brotherhood and dignity of women but
also letting the nation towards the tradition of volunteer community.

Clark Cunningham has pointed out that “representative standing can view as
creative development as well as accepted rules, which permit the third party
to file the writ petition of habeas corpus, before the authority in the court, on
the basis of the injured party, when he himself cannot approach to the court”.

In Municipal Council, Ratlam v. Vardhi chand69, the Hon’able SC allowed

the petition filed by social activists on behalf of the one section of the society
living in Ratlam. The people have been denied with the basic facilities of life
by the municipal corporation. There was an Alcohol factory nearby and the
discharge of it was flowing on the streets causing public inconvenience. SC
not only allowed the petition by the social activist but also held that it was
the duty of the municipal corporation to provide with liveable facilities in
which it has failed. The court in this case held that on the behalf of persons
who are depressed either socially or economically, the social activists and
organizations can file the application. Thereby in the instant case the
Hon’able apex court has given legal authority to volunteer social activists to
fight for the rights of weaker sections of the societies.

Ratlam v. Vardhi chand, AIR 1980 SC 1622, 1981 SCR (1) 97.
69

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 CHAPTER 4

TUSSLE FOR THE SUPREMACY BETWEEN

LEGISLATURE AND JUDICIARY

India got independence from Britain after more than 200 years of ruling the
subcontinent on August 15, 1947. But the parliamentary system of British left
a lasting impression on it. India has followed the path of parliamentary
democracy as the framers of the Constitution of India inspired this system
initially from England because of the colonial legacy70.

At the time, the Legislature by formulating certain laws made various

restrictions on the judiciary's powers of the judiciary to review. Decisions
taken by the legislature that governs them are always presumed to be
constitutional valid within the scope of Art. 13. For example, a tax applied
through legislation, if considered to be disputed, can be rendered ineffective
by means of judicial autonomy; however, the legislature could shorten the
power to review that law by inserting a validation clause to confirm the tax
that court has declared unlawfully levied on the basis of an ineffective or
invalid law71.

In the Indian context the tussle between legislature and judiciary can be traced
back by 3 different time periods, i.e. 1950 to 1970, 1971 to 1990 and 1990 to
till date. The main purpose of dividing the periods into three parts is to study
the reasons behind the tussles for the supremacy between the judiciary and
legislature and their different approach for the same. Parliament member is
directly elected by the citizen and hence they represent them and they have
power to make law. However, some time while making law, they don’t
consider the value and ideas cherished in Constitution and go beyond the
Constitution limit and make law. The judiciary is there to check the validity
of that very law by the use of trump card i.e. judicial review. This study is all

70
Rau B, ‘The Parliamentary System of Government in India’ (1949) 24.
71
ibid.

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 about to check that whether the power judicial review use in right way or
judiciary use it unnecessary.

Tussle between Legislature and Judiciary

The period of tussle has been divided into

three parts as follows;

1. 1950 to 1970

2. 1971 to 1990

3. 1990 to till date.

4.1 Tussle During 1950 to 1970

The steady evolution of judicial claim of supremacy may be seen by

examining several case statutes of the Supreme Court, particularly following
India's independence. During the early decades, the SC took very slow,
modest, and slow shifts. However, it was relentless in ensuring the growth of
law and judicial supremacy.

The Indian President referred a subject of law and fact involving public repute
to the judiciary for judgment and consideration. The SC played a unique role
in providing legal guidance to the President of India. The court has the
authority to uphold constitutional supremacy by interpreting and enabling
statutes to apply to all enterprises operating under lawful conditions. The
court has taken on a critical role in the subject of federation and the state, in
which an argument has arisen between the state and the center.

The issue between the “Allahabad High Court and the Uttar Pradesh
Legislative Assembly” has already been before the Supreme Court. The
judiciary allowed the aggrieved person to challenge the penalty imposed on
him by the state Assembly of Legislation. The court ordered that the disturbed
individual be discharged on surety. The Legislative Assembly discussed the
contempt action against the judge and the lawyer who initiated it at the High

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Court. The concerned High Court issued a restraining order against the
legislative assembly and its personnel who took action in this regard.72

The controversy between judiciary and the legislature started in 1950; the
Madras State banned a leftist weekly English newspaper named, Cross
Roads, published by Romesh Thapar for publishing critical views on Nehru’s
alleged ineffective policy, which appealed to the SC on May 26th, 1950,
leading to the landmark judgment of Romesh Thapar state of Madras73, The
Nehru administration eventually made a provision in 1951 limiting “Art.
19(1) (a) of the Indian Constitution against "abuse of freedom of speech and
expression”.

The Indian Parliament noted that freedom of speech and of the press in other
countries with written Constitutions is not considered to impede the State
from punishing or preventing this freedom from being abused.

Subsequently, the problem of acquisition of land by state and compensation

paid to the owner has been a source of confusion. For the same, various
repeated amendments and laws have been made in relation to “right to
property”. The state’s legal capacity to acquire people private property for
public purposes has been recognized as a fundamental attribute of a sovereign
state. Parliament added 9th schedule to the Constitution. Effect of 9th schedule
is that the Statue, which comes under 9th schedule they are not subject to
judicial review.

However, in State of Bihar v. Kameshwar Singh74 the SC held that although

this power of acquiring property was recognized, under Constitutional
provisions but also defined safeguards under which the right could be
exercised. Again, from time to time the state tried to explain the exceptions
to property rights. What we see today is where a significant domain was being
exercised for doubtful reasons.75

72
Professor Narender Kumar, Constitutional law of India, (Allahabad Law Agency, 8 th edn.
2016).
73
Romesh Thapar state of Madras, 1950 SCR 594.
74
State of Bihar v. Kameshwar Singh ,AIR 1952 SC 252.
75
ibid.

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In the case of Champakam Dorairajan v. State of Madras case76, the state
came with law which reserved the seats on the basis of sex, race and caste in
medical colleges. In honourable Supreme Court, they contended that it has
come with legislation to achieve the goal given in Art. 46 of Constitution but
court held it was against the Art 15(1). At the result of that parliament came
with 1st amendment to Constitution and added the clause 4 of Art 15 which
stated that state can make special provision for the development of Schedule
Castes and Schedule Tribes and Other Backward Classes. Parliament added
9th schedule to the Constitution. Effect of 9th schedule is that the Statue, which
comes under 9th schedule they are not subject to judicial review.

In Shankari Prasad v. Union of India77, the 1st Constitutional amendment was

challenged in the instant case, which inserted Art. 31A and Art. 31B. Art.
31A provided the government with full authority with regard to land reform
laws, while Art. 31B protected these laws from judicial review. The main
problem in this case was whether the word ‘law’ in Art. 13 (2) also contained
an amendment by Parliament. The SC held that the “law” in Art. 13 does not
include a Constitutional amendment; it refers to an ordinary law made by the
legislature. It argued that since there were no limits in Art. 368, restrictions
and fundamental rights were included in the power to amend the Constitution.
Parliament passed the Fourth Amendment of the Indian Constitution78, which
put seven new laws into the Ninth schedule, four years later, in 1955. The
three laws out of these seven laws did not relate to the agrarian reforms
specifically created for the Ninth Schedule. Parliament has therefore
continued to amend the Constitution.

4.1.1 Effect Of 1st Amendment

The Constitution (1stAmendment) Act of 1951, implemented in 1951,

introduced various amendments to the provisions of the fundamental rights of
the Indian Constitution. It gives against validation of zamindari abolition laws,
abuse of freedom of speech and expression and clarification that the right to

76
Champakam Dorairajan v. State of Madras case, AIR 1951 SC 226.
77
Shankari Prasad ( n 18).
78
India. Parliament. Lok Sabha. Secretariat, Constitution Amendment in India (1995).

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equality does not prevent the passing of laws that provide “special attention”
to the society’s weakest sections.

The 1st Amendment passed by the Parliament on June 18, 1951, then approved
by the president of India, on May 10, 1951. This amendment sets the precedent
for a Constitutional amendment in order to overcome judicial processes that
impede the fulfilment of State responsibility for specific policies and
programs.

In State of West Bengal v. Bela Banerjee79, The West Bengal Land

Development and Planning Act (1948) was found to include an arbitrary
provision that violated Article 31(2). The provision set the maximum
compensation for land acquired under the Act at the market value on
December 31, 1946. It was therefore ruled to be invalid and unconstitutional.
Following this lawsuit, the fourth amendment to the Indian Constitution was
introduced, declaring Articles 31, 35, and 305 to be unconstitutional.

In case M.R. Balaij v. State of Mysore80 , the government issued an order on

July 26, 1958, for all communities to fall into the definition of educational and
socially backward classes, For SC’s and ST’s 75% seats in educational
institutions were reserved for them and the most regretted part of this order is
that Brahmins were excluded. On 14th May 1959, 22nd July, 1959, 9thJune,
1960 and 10th July, 1961, similar reservation orders were issued. The
percentage of seats reserved has varied in several orders, but all have been
discontinued aside when they were challenged. The SC imposed a 50%
limitation on reservations for all categories as a whole, in order to guarantee
that the omission does not go beyond the general non-discrimination rule.81

The Parliament had passed the 17th Amendment Act to the Constitution in
1964 inserting 44 statutes under the 9th schedule. It is to be kept in view that
9th Schedule was immune from any Constitutional challenge in the courts. In
Sajjan Singh v. State of Rajasthan82 the validity of the 17thAmendment Act,

79
State of West Bengal v. Bela Banerjee, 1954 AIR 170, 1954 SCR 558.
80
M.R.Balaij v. State of Mysore, AIR 1963 SCC 649.
81
I.C. Golaknath (n 22 ).
82
Sajjan Singh ( n 21).

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1964 was challenged on the ground that conditions of Art. 368 were not
fulfilled. The Shankari Prasad case was also under challenged. The Hon’ble
SC held that amendment as provided under Art.368 empowers the parliament
to amend the whole constitutional provisions. The Majority doubts the view
in Shankari Prasad case that Art. 13(2) does not include amendments and
cannot be reviewed in Courts. This was another step towards the landmark
Keshvananda Bharti case, but it was the first time Justice Mudholkar sowed
the seeds for the basic structure doctrine. There comes the Golakhnath case
which rages the real Constitutional conflict between the parliament and the
judiciary on the issue of ‘right to property’. In the 1967, Golak Nath case, the
validity of 1st Amendment, 4th Amendment and 17th amendment was
challenged. The issues involved were whether amendment under Art. 368 is
a “law”, within the meaning of Art.13 (2)? And whether or not it is possible
to amend fundamental rights? The SC overruled Shankari Prasad case with
6:5 majority and held that Amendments comes under the purview of law
under Art. 13(2) and the Courts could review it if it violates Fundamental
Rights. Further the Court held that parliament had no power to amend Part
III of the Constitution. The Court for the first time propounded the “Doctrine
of prospective overruling”. The legislature felt outrageous by the view of the
court and the war of supremacy went on its peak.83

4.2 Tussle During 1971– 1990

In 1971, Parliament played its cards by passing the 24th Amendment Act to
repeal the Judgment which put embargo on legislative power regarding
Amendments in the case of Golkh Nath v. State of Punjab84, The legislature
had amended the Constitution to explicitly state that Parliament has the power
to amend any part of the Constitution, including fundamental rights
provisions, and added clause 13(3) by 24th amendment which states that Art.
13 does not apply to amendments made in accordance with Art. 368. In
addition, to this a new clause was added in Art. 368, under which Art. 13
would not apply to changes made under Art. 368. Moreover, it has changed

83
M.P Jain, “Indian Constitutional Law”, (Wadhwa and Company, 5th edn.. 2003 ).
84
I.C. Golaknath (n 22 ).

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the marginal notes of Art. 368 from Procedure to Change to Parliamentary
power to amend the Constitution and its procedure. Further, it also provides
that the President must approve the amendment once it has been adopted by
both houses with a majority. Thus, it has given the ultimate power into the
hands of legislature to fulfil their desires according to their whims and desire.

Another step toward supremacy. Parliament approved the “25th

Constitutional Amendment” to resolve the issues raised by the SC in the
matter of bank nationalization. In this decision, the SC read Art. 31 and
concluded that “a law which sought to acquire or requisition property for a
public purpose should also satisfy the requirements of Art. 19(1) (f)”. To
overcome the barriers created by the Court, the 1971 Constitutional Act
(amendment 25) amended Art. 31 and replaced the word “compensation” in
Art. 31 (2) with “amount,” so that there is no law that allows the compulsory
acquisition or seizure of property could be challenged in any court on the
grounds that the amount determined under this law.

The 25thamendment of the Constitution inserted new Art. 31C in order to

allow Parliament to circumvent Art. 14, Art. 19 and Art. 31, it provides that
no law, implementing the state policies to guarantee the principles specified
in Art. 39 (b) or (c) shall be void by being incompatible with, or removing or
restricting, rights under Art. 14, Art. 19 or Art. 31 and no law that claims that
if it is to implement this policy, it will be challenged in any court by not
implementing that policy. By inserting this clause, Parliament has once again
armed the power to introduce socio-economic changes in the country by
implementing some directions provided under DPSP.

The 29th Amendment introduced the “Kerala (Reform) Land Reform Act” of
1969 and 1971 into the 9th schedule of the Constitution to ensure its
Constitutional validity and prevent the judiciary from being annulled because
of its inconsistencies with the Part III of the Constitution. The S.C upheld 29th
Amendment.

In Kesavananda Bharati v. State of Kerala85, a petition filed under Art. 32 of

85
Kesavananda Bharati (n 43).

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the Constitution. Whereby, Petitioner prayed that Kerala reforms Act and
24th, 25th and 29th amendment, be declared ultra vires being
unconstitutional. The 13 judge’s bench with 7:6 majority held Parliament of
India is empowered to amend any constitutional provision except the “basic
features” of it. The doctrine of “basic structure” was introduced first time
in this case. SC further explained that basic structure means the main features
of the Constitution such as rule of law, separation of power, right to equality
and judicial review, because without them Constitution of India become
meaningless. Framers of our Constitution made the Constitution on the basis
of these features only, so court held that parliament cannot amend those
provisions which are come under the doctrine of basic structure but except
those, parliament has power to amend the Constitution.86

In Indira Nehru Gandhi v. Raj Naraya87 ,The election of Smt. Indira Gandhi
challenged on the ground of corrupt practice. The Allahabad H.C invalidates
the election of Indra Gandhi’s and barred her from contesting any election in
future. To contrary the view of Court the parliament of India added Art.329A
in the Indian Constitution. This Art. provides immunity to the speaker of Lok
Sabha and election of prime minster of India from judicial review so by this
amendment election of the prime minister is out from preview of judicial
review. Though election of Indira Gandhi held valid but SC struck down the
39th amendment on the ground that it violates the basic structure of
Constitution.88

89
In the case of ADM Jabalpur v. Shivkant Shukla , also known as habeas
corpus case where for the national emergency was imposed by the Prime
Minister Indira Gandhi was challenged. Several people arrested including
many leaders of opposition that day was known as black day for Indian
judiciary because court gave narrow approach regarding that issue and said
that no one can approach the court for volition of fundamental rights under
Art.21 during emergency which are suspended by state during emergency.

86
H.M. Seervai,Constitutional law of India , (Universal law publishing, 4th edn. 2015).
87
Indira Nehru Gandhi v. Raj Naraya, AIR 1975 1975 SCC (2) 159.
88
Professor NarenderKumar,Constitutional law of lndia ,( Allahabad Law Agency, 8 th edn.
2016).
89
ADM Jabalpur v. Shivkant Shukla , 1976 SCC 21.

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 This judgment is still criticized but contradicting view of justice H.R. Khana
in this judgement holds more significant than majority decision. The alleged
unfair practices of Indira Gandhi’s government exposed when Justice Khanna
asked the first valid question. “Life is also mentioned in Art. 21 and would
Government argument extend to it also?” The boldness of the Justice Khanna
is still appreciated.

The Govt, could not reconcile to any restriction, whatsoever, be imposed into
the constituent power of the parliament. It held that the obstacles in the
growth of the Constitution must be removed, for the Constitution, to be
living, must be growing. With these considerations, legislature came with
42nd amendment. This amendment has following major two changes-

a) It added clause 4 and 5 in Art.368 to the effect that an amendment of the

Constitution under Art 368 shall not be called in question in any court on any
ground and the constituent power that of the Parliament shall be unlimited.

b) It amended Art 31C to provide precedence to all the directives principle over
fundamental rights.
In Minerva Mills v. Union of India90, by 4:1 majority SC stuck down clause 4
and 5 and further SC made it clear that Constitution is supreme and not the
legislature. The fundamental provisions of the Constitution cannot be altered
by the parliament. The five-year-term Parliament does not have complete
power to change the Constitution. The Court further stated that ordinary laws
passed by legislatures are not at risk of basic structure changes or violations of
the Constitution; only modifications enacted by parliament.

In Mohd. Ahmed Khan v. Shah Bano Begum91 an old aged Muslim woman
claimed alimony from her husband after their divorced. However, before this
judgement Muslims were not allowed to give maintenance and alimony after
the marriage. In the history of Indian judiciary, it was one of most important
pronouncements till now. In this case first time general law prevailed over
the personal law and court allowed to Muslim women to get the maintenance

90
Minerva Mills ( n 24).
91
Mohd. Ahmed Khan v. Shah Bano Begum , 1985 SCR (3) 844.

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under the 125of CrPC. Many people and politicians were against this
judgement and to dilute the effect of the judgement Govt. Came with new
legislation Muslim Women (Protection of Rights on Divorce) act, 1986.
However, SC in the case of Shamima Farooqui v Shahid Khan interpreted the
provisions of the Act and allowed the maintenance under the Act and as result
decision of Shah Bano remained valid.

4.3 Tussle From 1991 To Till Date

This era from 1990 to till now is the main concern of the study because this is
showing about the recent tussle between the judiciary and legislature and its
current image. It started with in year 1992.

In the well-known Mandal Commission case (Indra Sawhney v. Union of

India 1992)92 , as the people of non-beneficiary of reservation considered this
case as stigma in a democratic republic. The issue was to what extent and
amount of Art. 16(4), which provides reservation of jobs in support of
backward classes, has been examined in detail by the SC. although the Court
has discarded the additional reservation of 10% for inferior sections of higher
castes. Further, the court said that creamy layer should be excluded from the
benefit of the reservation. The court added that there should be no reservation
in promotions; it should be confined to initial appointments only. The
threshold limit of 50% should not be exceeded. The ‘carry forward rule’ was
held to be valid but it should not surpass the 50% rule. Let’s come back to
the current scenario; the Narendra Modi Government has added Art. 16(6) to
provide 10% reservation to the economic weaker section of the county aims
to accomplish the commitments of the directive principles of state policy
under Art. 46, to promote the educational and economic safety of the inferior
sections of the country although SC denied to stay on this amendment, but
the matter is still pending in the Hon’able supreme court.

In well-known First Judges Case (1981)93, SC by 4:3 majority said that in

the appointment of a judge of the S.C or the H.C, the word “consultation” in

92
Indra Sawhney v. Union of India 1992, Supp (3) SCC 217.
93
S. P.Gupta v. Union of India, AIR 1982 SC 149.

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Art. 124(2) and in Art. 217(1) of the Constitution does not denote
“concurrence”. Court held that final power to choose the Judges of S.C and
HC lies in the hand of union government not in the hands of CJI.

In the Second Judges Case (1993) 94, SC with 7:2 majority struck down the
verdict given in the first judge case and held that CJI has upper hand to choose
the judges of SC and HC. Court further added that suggestion of the president
will be non-binding. This decision also gave the birth to the collegium system
which means judges appointment by the judges.

In the Third Judges Case (1999)95 , The SC extended the collegium to include
the CJI and the four most-senior judges of the court. It is very unambiguous
from these decisions that SC was well aware of the fact that, if it grants the
control of judicial appointments in the hands of other organs it would damage
the autonomy of the Judiciary through political influence.

In year 2002 major argument again arose in “T.M.A. Pai Foundation v. State
of Karnataka”96, where 11 judges bench held, that a minority institution
cannot deny admissions to non-minority sections, the moment it received
government’s help. it would be compulsory to admit a reasonable extent of
non-minority student that would not significantly impair the rights under
Art30 (1) and university interference would be minimum necessary to
maintain values and to provide some representation for non-minority
students. After that Govt. came with 93rd amendment in contrary to previous
judgment.

In famous case of Justice KS Puttaswamy (Retd.) v. Union of India97 , in this

case Sc declared that right to privacy is fundamental right of person. The
Court struck down M.P. Sharma and Kharak Singh because it “did not be
aware of the privacy rights. The Court also recognized that the right was not
limited and could become limited in situations when it was mandated by law,

94
Supreme court advocates on record Association vs. union of India, (1993) 4 SCC 441.
95
Re: Under Art. 143(1) Of The constitution of India on Principles and Procedure regarding
appointment of SC and High Court Judges v. Unknown , AIR 1999 SC 1.
96
T.M.A. Pai Foundation v. State of Karnataka , AIR 2002 8 SCC 481.
97
KS Puttaswamy (Retd.) v. Union of India, (2015) 8 SCC 735.

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aligned with the State’s legitimate goals, and proportionate with those goals.
The most unfortunate aspect of the case, however, was that the Adhaar Act
of 2016 was upheld despite having been introduced as a money bill and
circumventing the constitutional requirement that an ordinary law be
presented to both houses of parliament before the president is asked to sign
it.

The only relaxing point is that it is not mandatory which the parliamentarians
intended to be. But it was held mandatory for the pan card and the pan card
was held to be mandatory for opening bank accounts. However, validity of
Adhaar act is now referred to the larger bench for review.

In Navtej Singh Johar v. Union of India98 (2018), judgment, the S.C

unanimously held that Section 377 which criminalized “carnal intercourse
against the order of nature” was unconstitutional, if it punished adults of the
same sex for engaging in sexual conduct together. Dancing star Navtej Singh
Johar filed a petition against Section 377 of the IPC, arguing that it violated
his rights to equality, privacy, human dignity, and freedom from
discrimination. The Court stated that discrimination based on sexual
orientation violates the right to equality, that legalizing adult consenting sexual
relations in private violates the right to privacy, and that since sexual
orientation is a fundamental component of an individual's identity, denying it
would violate that person's right to life because it only affects a small portion
of the population.

The five-judge panel of the Indian SC ruled unanimously that Section 377 of
the IPC was unconstitutional insofar as it related to adult consenting sexual
behavior in private.

But the part which deals with the bestiality remains operative. The Court thus
overruled its Suresh Koushal v. Naz Foundation99, decision that upheld
Section 377 Constitutionality. In this judgement court showed their boldness
and declared the section 377of IPC partially unconstitutional and allow the

98
Navtej Singh Johar v. Union of India, 2018 (10) SCALE 386.
99
Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1.

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intimacy between same sex and the Court relied on its decision to reiterate
that gender identity is its own personality and denies the same, would violate
human dignity. The Court used the reference of K.S. Puttaswamy v. Union of
India100 and held that “denying the LGBT community its right to privacy on
the ground that they form a minority of the population would be violation of
their fundamental rights” and that of Shakti Vahini v. Union of India and
Shafin Jahan v. Asokan K.M 101 to reaffirm that “an adult’s right to choose a
life partner of his/her choice” is a facet of individual liberty”.

In - Re Banners Placed on Road Side in the City of Lucknow v. State of U.P.102

Allahahabad high in a suo moto litigation court ordered the removal of all
banners and posters that the Lucknow police had up that included the names
and images of people who were allegedly violent during demonstrations
against the Citizenship Amendment Act.

The Court observed that the State action amounted to “unwarranted

interference in privacy of people” and hence violative of Art. 21 of the
Constitution.

On 5th August, 2019 the central government removed the special status of J &
K, granted under Art.370 of Indian constitution. During the same the internet
services were shut down for more than 6 months for which the SC criticized
the administration and directed to restore the internet facilities. 103The
challenge to the constitutional validity is still pending in the Hon’able Supreme
Court. Moreover, the citizenship amendment bill was passed by the central
government in the recent past. It is alleged to be the one of the first act of
independent India made on the basis of secularism and is alleged to be
violative of “Secularism” which is the basic feature of Indian constitution.

So, it can be analyzed that governments from time to time tried to change the
face of Indian constitution as to make it as per there wish. But SC has

100
K.S. Puttaswamy v. Union of India, (2018) 7 SCC 192.
101
Shafin Jahan v. Asokan K.M , 2018 (5) SCALE 422.
102
Re Banners Placed on Road Side in the City of Lucknow v. State of U.P., 2020 SCC Online
All 244.
103
Anuradha bhasin & others v. Union of India, W.P. (C) N0 1031 OF 2019.

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successfully defended and protected the supremacy of the constitution. By
doing the same it has also not crossed it limits and allowed various changes
in constitution which it fund to be reasonable and well within the scope of
the powers of Indian Parliament. It has evolved the doctrine of “basic
feature”, the features which are not allowed to be played with by the
legislature at any cost.

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 CHAPTER 5

LIMITATIONS OF JUDICIAL REVIEW

Courts has the power to declare any Act unlawful not because to make the
judiciary supreme then other organs it is because it helps to maintain the
doctrine of “checks and balances” among all organs. The court’s task is not
to lay it alone in criticism of the majority rule's policy and the politics. On the
contrary, the court's responsibility is simply to implement a statute's
legislative policy in the light of the Constitution’s Values.104 It is very true to
say that, the courts possess extensive powers to review the provisions that are
Constitutional and statutory. But these powers must be exercised with
significant caution and self-control. The courts should not cross the limits of
their legitimate judicial review powers. There are completely different
parameters for Judicial review of Constitutional and statutory provisions.

In “J.P. Bansal v State of Rajasthan”105 The honourable SC has observed

that “It is true that this court in interpreting the Constitution enjoys a freedom
which is not available in interpreting a statute. It endangers continued public
interest in the impartiality of the judiciary, which is essential to the
continuance of rule of law, if judges, under guise of interpretation, provide
their own preferred amendments to status which experience of their operation
has shown to have had consequence that members of the court before whom
the matters come consider being injurious to public interest. Where the words
are clear, there is no obscurity, there is no ambiguity and the intention of the
legislature is clearly conveyed, there is no scope for the court to innovate or
to take upon itself the task of amending or altering the statutory provisions.
In that Situation the judge should not proclaim that they are playing the role
of lawmaker merely for an exhibition of judicial valour. They have to
remember that there is a line, though thin, which separates adjunction from

104
C Neal Tate, ‘Judicial Review’ (Encyclopedia Britannica, 19 Dec. 2023)
<https://www.britannica.com/topic/judicial-review> accessed 20 March 2024.
105
J.P. Bansal v State of Rajasthan, (2003) 7 SCC 121

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legislation. That line should not be crossed. This can be vouchsafed by an
alert recognition of the necessity not to cross it and instinctive, as well as
trained reluctance to do so.”

The Constitution's fundamental purpose would be affected, and the harmony

between the three independent branches of government would be upset if the
court failed to recognize the importance of judicial advice. The SC has taken
a serious check on this prevalent disturbing exercise in “State (Govt, of Delhi's
NCT) v. Prem Raj”106where the honourable High Court has reduced the
sentences by transgressing its limits. The court noted that “The power of
commutation exclusively vests with the appropriate government. The
appropriate government means the Central government in cases where the
sentence or order relates to a matter to which the executive power of the Union
extends, and the state government in other cases. Thus, the order of the High
Court is set aside.” Similarly, in “Syed T.A. Haqshbandi v State of J&K”107,
the honourable SC noted “Judicial review is permissible only to the extent of
finding whether the process in reaching the decision has been observed
correctly and not the decision itself, as such. Critical or independent analysis
or appraisal of the materials by the court exercising powers of judicial review
unlike the case of an appellate court would neither be permissible nor
conducive to the interest of either the officer concerned or the system and
institutions. Grievances must be sufficiently substantiated to have firm or
concrete basis on properly established facts and further proved to be well
justified in law, for being countenanced by the court in exercise of its powers
of judicial review. Unless the exercise of powers is shown to violate any other
provision of the Constitution of India or any of the statutory rules, the same
cannot be challenged by making it a justifiable issue before the court’’.

5.1 Constitutional Limitations

The exercise by the courts of the power of judicial review is not uncontrolled,
but with certain restrictions. Even in the USA, there are certain restrictions,

106
State (Govt, of Delhi's NCT) v. Prem Raj (2003) 9 SCC 592.
107
Syed T.A. Haqshbandi v State of J&K”, (2003) 9 SCC 592.

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 although they are primarily self-imposed. In India limitations and restrictions
cover much widely, mostly incorporated into the Constitution itself.108

Many acts are excluded from judicial review by the Indian Constitution.
Some of the Constitutional Art.s expressly preclude the powers of judicial
review. They are 31-A, 31-B Art.s, read with Ninth. Schedule 31(33,74,
(2) 77(2), 100(2), 122(1), 323-A, 262, 323- B,239(a), 352, 360, 356, 363,
368(4) and 10. Some of these provisions, however, were struck down by the
honourable SC on the grounds that they have violated the Constitution’s
Basic Structure.

5.2 Proceedings In Parliament & State Legislatures

Clause (2) of Arts, 100 and 189 bar the jurisdiction of the courts to
invalidate the proceedings of a House of the Legislature on the ground:

(i) The membership of the Legislature was vacant at the appropriate time ; or

(ii) The disqualified person had sat in the Chamber, voted or otherwise
participated in the relevant proceedings.

Therefore, the mere fact that a legislation was passed during a vacancy in the
Legislature's membership does not render it invalid. This “vacancy” refers to
a vacancy that results from the properly formed Legislature being unable to
address any issues with the Legislature’s Constitution or any of its members.
This was illustrated in the case of Vinod Kumar v State of H.P109, where the
honourable The Himachal Pradesh Abolition of Big Landed Estates and Land
Reforms Act of 1954 was declared illegal by the SC on the grounds that it was
approved by the Legislative Assembly of the Old State of Himachal Pradesh,
which had dissolved due to the Himachal Pradesh and Bilaspur (New State)
Act of 1954, without a n convocation.110 “Cls.(1) of Arts,122 and 212 relate to
a challenge against the validity of any ‘proceedings’, on the ground of
‘irregularity of procedure”.

108
ibid.
109
Vinod Kumar v State of H.P, (2015) 3 SCC 220.
110
ibid.

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 Firstly, it must be remembered that the immunity granted by the Clauses is
only applicable to the legality of the actions conducted by the Legislature.
These Clauses cannot stop the courts’ jurisdiction from challenging the
validity of a statute passed by the Legislature if the matter transcends the
current state of proceedings and the statute is deemed to violate certain
mandatory provisions of the Constitution, thereby rendering the statute
unconstitutional. Thus, the question of whether a statute can be overturned on
the grounds that it was passed in violation of a purely procedural
Constitutional clause still needs to be answered. The response seems to be
negative because it would entail declaring that the procedures that led to the
enactment of the statute were void due to a procedural flaw.

It would therefore be impossible for a court in India to invalidate a statue on

the ground :-

(a) That it was approved without a quorum, as required by Art. 100, Clause (3),
with the Speaker or Chairman handling the quorum-related matters under Art.
100, Clause 4; or
(b) That was passed without a majority of votes, as required by Art. 100 (1),
where the Speaker has endorsed on a Bill that it has been duly passed,
for, our SC has adopted the English principle that “the certificate of the
Speaker is conclusive on the point that the Bill was passed by the
Legislature”
(a) The fact that one or more members failed to take an oath or affirmation.
(a) That a decision made by a committee or the House of the Legislature has
been made in a way that is not compliant with its procedural rules.

However, if the infringement is related to the Legislature's correct

Constitution, one that gives the Legislature authority to act, or one that sets a
precedent for the use of power, judicial jurisdiction would not be excluded or
if the proceedings are unconstitutional.111

111
ibid.

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In Pandit M.S.M. Sharma v. Sri Krishna Singh112 the Honourable SC stated
that “the validity of the proceedings in a State Legislature cannot be called
into question on the grounds that the proceedings as laid down by the laws
have not been followed. No court can address these issues within the
legislature’s own special jurisdiction, which has the power to conduct its own
business.”

In the case of Keshav Singh v. Speaker, Legislative Assembly 113 regarding the
Power, privileges and immunities of state legislatures, Court, while
constructing Art. 212(1), made observations that “the validity of any
proceedings within the Legislature may be questioned by a citizen if his case
is that the proceedings in question do not suffer from the more irregularities
of the proceedings. To interpret Art. 122 of the Indian Constitution, the
similar principle could be applied .’’

In Ramdas athawale V. Union of India,114 applying the ratio of the

aforementioned judgments of the Constitutional Bench of the Apex Court, the
petition which challenges the validity of the proceedings in Lok Sabha began
on 29 January 2004 on the grounds that the President did not address both
parliamentary houses as provided for in Art.s 87 of the Constitution. The
observations of the Court are as follows: “According to Art. 122(2), the Any
decision made by the Speaker to modify the process or the way business is
conducted will be conclusive and enforceable against every House member. It
is not possible to look into the legality of the Speaker’s decision on December
23rd 2003, to adjourn the House sine die, and his subsequent order to restart
sessions due to any procedural irregularities. After the House resumes its
sessions in compliance with the Speaker's directives, the courts are not
permitted to look into the matters discussed or the legality of the proceedings.

No Speaker’s decision can be challenged by a House member complaining of

mere procedural irregularity in business conduct”. Such decisions are not

112
Pandit M.S.M. Sharma v. Sri Krishna Singh, 1959 AIR 395, 1959 SCR SUPL.
113
Keshav Singh v. Speaker, Legislative Assembly, AIR1965ALL349, 1965CRILJ170.
114
Ramdas Athawale v. Union of India, AIR 2010 SC 1310.

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 subject to any court's jurisdiction and are, as understood and explained in the
case of Keshav Singh and further explained in Indira Nehru Gandhi v. Raj
Narain & Anr , where it was noted that the “house is not subject to court control
in administering the House's internal proceedings. Each House of Parliament
has the right to be the sole judge of the legality of its own proceedings. The
courts cannot go into the legality of the proceedings of the Houses of
Parliament. The Constitution seeks to preserve a fine balance among the
Executive, legislature and the Judiciary. The object of the Constitutional
scheme is to ensure that each Constitutional organ operates within its
respective assigned sphere. That is precisely the Constitutional philosophy
embedded in Art. 122 of India’s Constitution”.

All provisions which are discussed in this section are immune from judicial
review however certain circumstance if these Art.s will be entrusted with
essential provisions of constitution (which are subject to judicial review) in
this case all the immune Art.s will lose their immunity.

5.1.2 Non –Justifiable Provisions of Constitution

In Indian Constitution there are few provisions those are known as Non-
justifiable.

(i) Directive Principles Art. 37 states that Part four relating to the Directive
Principles shall not be enforceable by any court. The reason for non-
justifiability and the non-enforceability of these principles is that they impose
positive obligations on the state. Government functions are under a number of
constraints while taking positive action towards the resources, most
importantly the financial resources.

Therefore, the makers of the Constitution refrained from giving teeth to these
principles by taking a pragmatic view. Rather than in court proceedings, they
believed more in awakened public opinion as the ultimate sanction to fulfil
one of these principles. In practice, the non-justifiability of DPSP has been
diluted decisions of the court that have enforced few of the guidelines in light
of basic rights, since the illustrated case of Maneka Gandhi V. Union of

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 India,115 “Art. 21 of the Constitution was widely and liberally interpreted in
the light of the guidelines in order to broaden its frontiers”.

(ii) “Election of President and Vice-President”

Art. 71(4) provides that, on the grounds of the existence of any vacancy, the
election of a person as President or Vice-President shall not, for whatever
reason, be called into question by the members of the Electoral College who
elect him116.

In N.B. Khare v. Election Commission117 The argument that the election for
president should not take place until all state legislatures and parliamentary
posts have been filled was denied by the Supreme Court.
The Constitution (Eleventh Amendment) Act, 1961 introduced clause 4 to Art.
71 to keep the matter beyond any doubt.

(ii) Ministerial Advice

The Indian President shall act on the advice offered by Council of Ministers
pursuant to Art. 74(1). “if the judiciary had the power to annualize a
president's act on the ground that the president had not consulted the
ministerial council before taking such action or had acted contrary to the
ministers suggestions, it would have been contrary to the basic principles of
the cabinet system of govt. Accordingly, Art. 74(2) states that: The question
whether or not any advice has been given to the President by the Minister shall
not be investigated in any court”118.

A corresponding Art. 163(3) bars jurisdiction over the governor's relationship

with his ministerial council. It is made clear that only non-justifiable advice
under Art. 74(2) is not immune from judicial scrutiny, but is the material on
which advice is based.

115
Maneka Gandhi V. Union of India (1973) 3 SCR 530.
116
ibid.
117
N.B. Khare v. Election Commission ,1958 SCR 648.
118
M.P Jain, ( n 84).

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(iii) Art. 77(2), 166(2). All actions taken by executive shall be executed either by
the President or the Governor, the President has the executive authority of the
Union, while the Governor of a State has that authority. Art. Cl. (2), 77, and
166 provide for the "authentication" of a presidential or governor's order, and
further state that an authenticated order or instrument cannot be questioned on
the grounds that it was not made or executed by the president (or governor).
Although it would not be barred from opposing the validity of the instrument
on any other ground, the authentication in the prescribed manner prevents
court inquiry as to whether such order or instrument is the order of the
President or Governor. It doesn't stop the courts from looking into the accuracy
of the recitals in an order or instrument. It also doesn't stop someone from
objecting to government directives as being unreasonable or unconstitutional.

(iv) Delimitation of Constituencies Art.s 81 and 82 contain provisions that relates

to the delimitation and re-adjustment of the constituencies. Art.s 327 and 328
provide for the legislative power. Under Art. 329(a) of these provisions,
stating:

“Notwithstanding anything in this Constitution -(a) The validity of any law

relating to the delimitation of constituencies or the allotment of seats to such
constituencies, made or purporting to be made under Art.s 327 and 328, shall
not be called in question in any court”.

In Mehraj Kothari v. Delimitation commission119, the SC stated “that

notwithstanding anything in the Constitution makes it as clear that in the
Constitution this clause overrides everything else. Due to Art 329(A), the
orders issued by the Delimitation Commission regarding the delimitation of
constituencies and published in the official gazette cannot be challenged in a
court of law”.

(v) Election Disputes.

Art 329 (b) states that:

119
Mehraj Kothari v. Delimitation commission ,AIR 1978 SC 669.

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“ Notwithstanding anything in the Constitution,' no election to a Chamber of
Parliament or a Chamber of a State Legislature shall be called in question
except by an election petition submitted to that authority and in such a manner
as may be prescribed by or in accordance with any law made by the
legislature concerned.”

Parliament has enacted the ‘Representation of the People Act, 1951’, in

relation with clause (b) of Art.. The Part VI of the Act deals with disputes
over elections. High Court entertains electoral petitions as provided in the
People's Representation (Amendment) Act, 1966.

In actual, the ‘People’s Representation Act, 1951’, provides that a court would
decide the election dispute. During an arrangement emerged whereby a
tribunal would initially rule on an election petition; following that, the subject
would eventually be brought to the High Court via a written petition; and
ultimately, the SC would hear an appeal under Article 136. When the 1951
People’s Representation Act was modified in 1956 to provide for a regular
appeal from an electoral court to the High Court, this three-tier system was
recognized. The Honorable Supreme Court may then hear an appeal in
accordance with Articles 132, 133, and 136. This laborious three-tier structure
was altered in 1966 when the 1951 People’s Act Representation was amended
to give the High Court the authority to hear cases and render decisions on
election disputes. The High Court now considers the election petitions
immediately, and under Arts, an appeal may be filed with the Supreme
Court.132, 133, and 136.

(vi) Art. 363

Art. 363 of the Constitution provides that “Notwithstanding anything
contained in this Constitution but subject to the provisions of Art. 143, neither
the SC nor any other court shall have jurisdiction in any dispute arising from
any provision of a treaty, agreement, agreement, sanitation or other similar
instrument entered into or executed prior to the commencement of the
proceedings”.

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 Along with the Proviso to Art.131, is also to be read, which states- "Provided
that such jurisdiction shall not extend to a dispute arising out of any
agreement, treaty, convention, undertaking or other similar instrument which,
having been entered into or executed before the beginning of this
Constitution, is still in operation after such beginning or which provides that
such jurisdiction shall not extend to such dispute."
No court shall be competent to entertain a dispute arising from treaties etc.
between the rulers of Indian States and the Government of India. The cause
of action relating to such disputes is of a political nature, and the
Constitutional remedy is a reference to the SC under Art.143 by the
President.
For the purpose of applying the bar under Art.363(1), such instrument should
have been executed before the Constitution enters into force and must be in
operation after the Constitution, but the dispute that is the subject of the
litigation may arise before or after the Constitution enters into force. Under
the first part the exclusion of court jurisdiction concerns disputes arising from
any treaty provisions. The dispute must relate to a right or liability arising
under a Constitutional provision under the second part.

5.1.3 Legislative Powers Of The President & Governor And

Emergency Provisions

There are certain Constitutional provisions that are unjustifiable because the
Constitution itself rests on the subjective determination of the president or
governor to exercise the relevant power.

(i) Ordinance-Making Power

Art.s 123(1) and 213(1) of the Constitution entrust the ordinance-making
power of the President and a Governor to the subjective satisfaction of the
President / Governor respectively “that circumstances which make it
necessary” for him to take immediate action.
The word ‘satisfied’ pursuant to Art. 123 & 213 denotes the extraordinary
president / governor’s subjective satisfaction. There are circumstances that

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make immediate action necessary. The existence of such circumstances and
the need for immediate action make ‘composite’ satisfaction.

Whether or not there exist conditions that need the publication of an order is a
matter for the Executive to determine in its own best judgment. It is uncertain
if this pleasure is unreasonable or subjected to judicial review in any way.
Clause 4 was inserted into Article 123/213 by the Constitution Act of 1975
(Thirty-eight Amendment) to make the approval of the president final,
conclusive, and immune from judicial scrutiny. However, in 1978, the
Constitution (Forty-Fourth Amendment) Act removed this particular clause.
As such, Parliament did not think it appropriate or safe to provide the executive
branch the authority to give subordinates unlimited power.120
The question of judicial review was raised in A.K. Roy v. Union of
India121regarding the passage of the 1980 National Security Ordinance “The
Supreme Court ruled that the President's satisfaction on the need to issue an
order is subject to judicial review. Furthermore, outside judicial review, the
fulfillment of Art. 123 preconditions cannot be taken into account and
maintained. It was thought unnecessary to address the President's query as
the issue of the order in question satisfied all parties, as the Parliament Act of
the court had superseded the order in question. The court also believed that
the internal position it was presented with was insufficient to support any
conclusion on this matter, for whatever reason”.

Likewise, in K. Nagraj v. State of Andhra Pradesh122, the SC observed that

“the submission that the order may be invalidated on the grounds of non-
application of the mind is not acceptable. The power to issue an order is not
an executive power, but the executive's power to legislate”.
In these cases, it appears that the honourable SC has gone too far in
vaccinating from judicial review at ordinance. Treating an ordinance in all
forms with a law passed by Parliament does not seem correct. In every respect,
an ordinance and a law are not the same. The main difference between the two

120
M.P Jain, ( n 84).
121
A.K. Roy v. Union of India, (1970) 3 SCR 530.
122
K. Nagraj v. State of Andhra Pradesh , 1985 SCR (2) 579.

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 is that while legislation is open and transparent through Parliament, an elected
body, and is criticized on the floor of the House and even outside the House,
making and promulgating an ordinance is merely an executive decision,
neither transparent nor open, nor subject to any open discussion in any forum.
(ii) Emergency Provisions. Articles 352(1), 356(1), and 360, respectively, give the
President the authority to declare an emergency whenever the President is
confident that the situation mentioned in these Articles is true. The
Constitution is silent on the fact that these extraordinary powers may only be
used in response to specific events listed therein, such as a threat to India's
security, the country's financial stability, or the collapse of the state's
constitutional system.
Clause 5 of the Thirty-eighth Amendment to the Constitution, which was
added in 1975, makes the President's satisfaction permanent, conclusive, and
impervious to judicial review in Article 352. Consequently, the 1978
Constitution Act (Forty-Second Amendment) removed this clause, implying
that the President's satisfaction is subject to judicial review and may be raised.

In Mills Minerva Ltd. U. Union of India123, Justice Bhagwati observed that:

“There is no bar to judicial reviews of the validity of a proclamation of
Emergency issued by the President under Art. 352(1). Merely because a
question has a political complexion, that by itself is no ground why the court
should shrink from performing its duly under the Constitution, if it an issue of
Constitutional determination. It would not therefore, be right for the court to
decline to examine whether in a given case there is any Constitutional
violation involved in the President issuing a proclamation of Emergency under
Art. 352(1). But the Constitutional jurisdiction of the SC does not extend
further than saying whether the limit on the saying conferred by the
constitution on the President has been observed or there is transgression of
such limits. The court cannot go in question of correctness or adequacy of the
facts and circumstances on which the satisfaction of the Central Govt is based.
The Satisfaction of the President is a condition precedent to the exercise of
power under Art. 352 (1) and if it can be shown that there is no satisfaction of

123
Mills Minerva (n 24).

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the President at all, the exercise of the power would be constitutionally
invalid. Where therefore the satisfaction is absurd or perverse or malafide or
based on a wholly extraneous and irrelevant ground, it would be no
satisfaction at all and it would be liable to be challenged before a court,
notwithstanding clause 5(a) of Art. 352”.
In S.R. Bommai v. Union of India124 a nine judge Bench of the SC held “that
the President’s exercise of power to issue proclamations pursuant to Art.
356(1) was subject to judicial review. While the President’s satisfaction is
subjective, it must be based on objective facts. In the same case secularism
was held to be basic feature of Indian constitution”

124
S.R. Bommai v. Union of India, 1994 SCC (3).

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 CHAPTER 6

CONCLUSION AND SUGGESTIONS

In India we have written and a Federal Democratic Constitution which

declaring that the Constitution is the ultimate Law of the country because the
founding fathers of Constitution said that when all governmental bodies owe
their origins to the Constitution and derive powers there, the Constitution itself
cannot be changed, except the method expressly set out in Constitution. India's
Constitution makers very intelligently included the provisions of the Judicial
review into the Constitution itself in order to keep the balance of federalism,
to protect the citizens ' certain fundamental rights and provide a useful weapon
for equality, freedom and liberty. To maintain the liberty and which is the
country’s Supreme Law and all other laws are subject to this Supreme Law.

Indisputably, the enlargement and overlapping trend of unconstitutional

legislation in India is a big problem and requires caution and determination to
cultivate the practice of distraction laws in accordance with the Constitution.
In the rights of individuals of the Constitution of India there is no explicit
provision; judicial review is recognized as an indispensable and essential
prerequisite for the creation of a developing civilization, which is based on
the insight of community and morality welfare. The authority of judicial
review is entrusted extensively through the apex Judicial institutes of States
and the SC of India. People’s rights are safe in testimony of the Indian
constitution. The need for judicial evaluation was deemed crucial by the
Drafting Committee of the Constituent Assembly after independence. The
judicial review’s compulsion has been described in fundamental rights under
Art.13 of the Constitution of India. It stipulates that the laws that abridge or
infringe the fundamental right of an individual shall not be made either by the
parliament or the State legislature. Likewise, it is précised that any law that
has been enacted in infringement of the fundamental rights will be null and
invalid.

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Use of Judicial review in India saw for the first time in the case of Emperor v.
Burah125 honourable court held that courts of India have the jurisdiction under
certain limitations that of the “Judicial review”. This opinion was followed in
the many proceeding cases until the “Government of India Act, 1935” was
enacted. According to this Act, a federation was introduced, and a judicial
review experiment adopted a new approach under the Constitution of India,
1950. The Judicial review played a major role in Indian democracy. It works
under India's current Constitution is a genuine protection of people's freedom
and liberty. Few writers of India have noted that the extent of judicial review
in India is very limited and that Indian courts have no jurisdiction as broad as
the United States courts. In their views, it is because of the "due process"
clause that the United States courts have a broader scope; the scope of judicial
review in India is smaller.

6.1 Hon’ble Judges Opinion About Judicial Review

Opinion of the judges of SC of India on the power of the judicial review as

following.

6.1.1 Justice Jaishanker Manilal Shelat

“The preamble to the Constitution contains the clue to the fundamentals of the
Constitution. According to the learned Judges, Parts III and IV of the
Constitution which respectively embody the fundamental rights and the
directive principles have to be balanced and harmonised. This balance and
harmony between two integral parts of the Constitution forms a basic element
of the Constitution which cannot be altered. The word 'amendment' occurring
in Art. 368 must therefore be construed in such a manner as to preserve the
power of the Parliament to amend the Constitution, but not so as to result in
damaging or destroying the structure and identity of the Constitution. There
was thus an implied limitation on the amending power which precluded

125
Emperor v. Burah, (1878)ILR 3CAL64.

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Parliament from abrogating or changing the identity of the Constitution or any
of its basic features”126.

6.1.2 Justice Jaganmohan Reddy

“The word "amendment" was used to refer to allowing a modification as
opposed to the damage that repeal or abrogation causes. As a result, changing
the amending power itself would not increase the breadth of the amendment
power.

According to the learned judge, the preamble of the Constitution reflects the
fundamental components of its structure, and among its salient characteristics
are justice, freedom of speech, and equality of status and opportunity. The right
to eliminate the essential elements and fundamental freedoms could not
reasonably be encompassed by the word “amendment,” hence that aspect of
the fundamental structure could not be harmed or destroyed. The learned Judge
held that the provisions of Article 31-C, as they existed at the time, which
granted Parliament and State Legislatures the authority to pass laws
implementing the principles outlined in Clauses (b) and (c) of Article 39,
completely revoked the right granted by Article 14 and were, therefore,
unconstitutional.

In the end, the learned Judge ruled that even though the amendment process
was broad, it did not include the authority to completely repeal, weaken, or
harm any of the Fundamental Rights or fundamental components of the Indian
Constitution, nor to destroy the Constitution’s identity. Parliament had the
authority to change any of the Constitution’s provisions, subject to these
restrictions”127.

6.1.6 Justice Yeshwant Vishnu Chandrachud

“Expressed the view that the power of amendment under Art. 368 is plenary
with no implied or inherent limitations and that it includes the power to add,
alter or repeal the various Art.s of the Constitution not excluding those relating

126
Kesavananda Bharati, (n 23).
127
Kesavananda Bharati (n 23).

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to fundamental rights . I Khanna, J., while agreeing with this view has stated
that the power, however, does not extend to altering the basic structure or
framework of the Constitution”128.

6.1.2 SC Acts As Interpreter And Guardian Of Constitution

The scope of judicial review has been greatly expanded under India's
Constitution. In contrast to the U.S.A., India’s Constitution has expressly
provided for judicial review. In several Constitutional Art.s, such as “13,
32,131,136,143,226 and 246” the scope of judicial review is present. In India
the judicial review depends on the belief that the supreme law of the nation is
the Constitution, and that all administration bodies that owe their origin to the
Constitution and obtain their jurisdictions from its provisions and have to be
operate under the Constitution Under the Constitution of India there is a
definite provision in Art. 13(2) that “the state shall not make any law which
takes away or abridges the rights conferred by Part III of the Constitution
containing fundamental rights and any law made in contravention of this
clause shall, to the extent of the contravention, be void”129. Therefore, the
Indian courts have a Constitutional responsibility to interpret the Constitution
and to declare that the law is unconstitutional if it is different to the provisions
of Constitution. Obviously, the protection of judicial review is closely linked
to the protection of fundamental rights; to deprive the same would be that
fundamental rights were not enforceable by “mere paper-based provisions” as
they would become rights without any solution.

The doctrines of Constitutional superiority and judicial review have been

interpreted in a very clear but compelling way, by J. BHAGWATI as follows
in case of “Rajasthan v. Union of India”,130

“It is necessary to assert in the clearest terms particularly in the context of

recent history, that the Constitution is supreme law, the permanent law of the
land, and there is no department or branch of government above or beyond it.

128
Kesavananda Bharati (n 23).
129
J.N. Pandey, Constitutional Law of India (Central Law Agency 51st edn, 2015).
130
Rajasthan v. Union of India, AIR 1977 SC 1361.

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Every organ of government be it the executive or the legislature or the
judiciary, derives its authority from the Constitution and it has to act within
the limits of its authority. No one however highly placed and no authority
howsoever lofty can claim that it shall be the sole judge of the extent of its
power under the Constitution or whether its action is within the confines of
such power laid down by the Constitution. This Court is the ultimate
interpreter of the Constitution and to this Court is assigned the delicate task of
determining what is the power conferred on each branch of government,
whether it is limited, and if so, what the limits are and whether any action of
that branch transgresses such limits”. It is therefore not possible to blame the
Indian courts for Constitutional decision-making; it is a function imposed on
them by the Constitution itself. It is a delicate task; Courts can sometimes see
it embarrassingly, but they cannot avoid their Constitutional liability.

In Minerva Mills’s case131 SC observed “the constitutional will not remain

the way it is, if the power of judicial review will not remain with that judiciary.
It is not only the duty of the court but its essential obligation to check the
validity of law and uphold the constitution.” In the instant case only,
Bhagwati, J, observed that “judicial review is the essence of rule of law, and
without it rule of law will become mockery and guarantee of fantasy, he was
of the view the judicial review is the basic feature of Indian constitution and
paramount to hold a check on the arbitrariness of the legislations and uphold
the democratic form of government as stated in Indian constitution.”

In L. Chandra Kumar v. Union of India132 it has been observed “The judges

of the SC have been entrusted with the task of upholding the Constitution and
to this end, have been conferred the power to interpret it. It is they who have
to ensure that the balance of power envisaged by the Constitution is
maintained and that the legislature and the executive do not, in the discharge
of their functions, transgress Constitutional limits. After the emergency
period, the judiciary was at the receiving end for delivering a series of
judgments that many considered an infringement of the basic human rights of

131
Minerva Mills (n 24).
132
L. Chandra Kumar v. Union of India ,AIR 1997 SC 1125.

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citizens of India and a change in the way they regarded the Constitution. The
SC stated that any legislation is changeable to judicial review, either the
transcendental amendment of the Constitution or the development of regimes
and regulations of municipal authorities that affect the life of the citizen.”

6.2 Importance Of Amending Provisions Under Indian

Constitution

“The Amending provision in the written Constitution takes on great

importance because it gives the opportunity to subsequent generations to grow
according to their needs. The essence of the written Constitution lies in its
method of change. The process of change is an opportunity to express
democratic concepts of fundamental Constitutional values without abolishing
the fundamental Constitutional principles.”133

In India, the scope of judicial review is wider than in the United States and the
United Kingdom because the United States Constitution is extremely short.
The terms so used in it is formless and common in character. The United States
Constitution is the strictest Constitution in the world; it is our tendency and is
limited. While the Constitution of India is both strict and elastic in character,
it is having complete and exhaustive provisions and is the richest and largest
Constitution in the globe. The language and terminology used in the
Constitution of India are definite and precise. On the other hand, in United
Kingdom the constitution is unwritten, and therefore its extent of judicial
review is very narrow. “Judicial review” is of 3 dimensional in India, such as
judicial reviews of the amendments made in constitution of India & legislative
acts administrative acts, and that of the judicial pronouncements itself. While
the Constitution of the United States is a very rigid, the revision of the
Constitutional amendment is rarely used, the United States Supreme Court,
has the power to examine the administrative act and the legislative Acts that
is different to the Constitution. While there is no scope in the United Kingdom

Sudhir Krishnaswamy’s, “Democracy and Constitutionalism in India: A study of the Basic

133

Structure Doctrine”,. (p.3, Oxford University Press, 2011).

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 to verify the validity of Parliament's legislative acts, secondary legislation is
subject to judicial review.

Framers of the Constitution was fully aware that, in the case of written
Constitutions, a Constitution that cannot be changed has no value, because the
provisions on regulation are of great importance and these provisions
guarantee a flexible and smooth implementation. The provisions of the
amendment were formulated by the Constitutional Assembly following a
debate and a detailed examination of the provisions of the amendment to the
Constitution of several countries, namely the Switzerland, Canada, France,
United States of America, South Africa, Australia, etc. To avoid problems that
existed in the strict provisions and flexibility in the Appendix, the creators of
Art. 368 defined as a subtle blend of flexibility and stiffness. This means that
the Constitution of India is not rigid and flexible. Rigidity and flexibility
depend on the nature and meaning of the Constitutional provisions.

When referring to the need to amendment the Constitution to change political

conditions and socio-economic, Pandit Jawaharlal Nehru Ji said, “It is the one
of the utmost importance that the people should realize that this great
Constitution of ours, over which we laboured so long, is not a final and rigid
thing. A Constitution which is responsive to the people’s will, which is
responsive to their idea, in that it can be varied here and there, they will respect
it all the more and they will not fight against, when we want to change it”.

6.3 Conclusion

The conclusion of this research study is enumerated as follows:

1) The primary point of protection against the executive, legislative, and

functioning branches of government is judicial review. Since the emergency
in 1975, when the courts were not fully protected by the public, there have
been important public interest lawsuits (PILs) to advance citizens’ rights, such
as those related to the environment. Individual rights are further advanced by
fundamental rights and a more expansive reading of Article 21.

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2) The judiciary acts as the protector of the fundamental elements of the
constitution that the legislative is unable to alter. Under Keshavananda Bharti's
direction, the idea of Basic Structure developed.

3) The Constitution is the ultimate law of the nation. The government must
perform its duties in conformity with the laws as outlined in the Constitution.
The Legislature, the Executive, and the Judiciary are the three main institutions
of this “Democratic” Constitution that are provided for.

4) The judiciary, legislature, and executive branches must function independently

of one another. No branch is allowed to take control of another branch or
obstruct the operation of another branch. The fundamental element of the
Indian constitution is the separation of powers.

5) There is a separation of powers between the executive, legislative, and

judiciary in India. They are distinct from one another, and each is meant to
serve as a balance to the other two. The judiciary has formally acknowledged
the separation of powers, even though our Constitution does not strictly uphold
it (Delhi Laws Case, 1951). Additionally, our Constitution’s Art. 50 explicitly
mentions the separation of the judiciary from the executive. The principles of
judicial review and the rule of law are acknowledged as fundamental
components of our Constitution and are woven throughout it.

6) Judges who declare legislative and executive actions unconstitutional and

invoke the Constitution to protect fundamental rights are only carrying out
their constitutional duties and upholding the rule of law; they cannot be
accused of interfering with the work of others.

7) How can the judiciary in India, a country where a significant portion of the
population lives in poverty and faces discrimination; where the Legislature and
Executive generally show little concern for upholding the Constitution; where
the government shows indifference and insensitivity to its mandatory duties;
and where law enforcement agencies demonstrate brutality when enforcing

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 laws, continue to be apathetic spectators on this unfolding drama? There is no
denying that the judiciary is seen as the State’s weakest branch. However, it
only gains strength when others put their trust in it.

8) Judges cannot and are not expected to administer the government in

accordance with the framework of governance; the only way they may do so
is by using their power of contempt.

9) Judges need to have personal beliefs and values that shape their decisions.
Inter-se agree between the various levels of governance may only be attained
by the judiciary exhibiting restraint, combined with the respect it should have
for other organs and by refusing to be influenced by popular praise. In order
to prevent the complete collapse of the Indian legal system, it is imperative to
implement a policy of judicial a lack of involvement in specific areas. Such
policy-making would simply be an acknowledgment that the judiciary has its
limitations and that the Constitution does not designate it as a stand-in for other
parts of government failing. It would not be interpreted as a sign of weakness
or abdication on the part of the judiciary.

10) Judicial activism is appropriate in the context of lawful judicial review.

However, judicial interference would be defined as -Judicial Overreach in
subjects pertaining to legislative policy or concerns that are purely political
and fall inside constitutional bounds.

6.5 Suggestions

The suggestions by the researcher are enumerated as follows;

1. Upholding the Supremacy of Constitution: The judiciary's primary

responsibility is to uphold the Constitution's supremacy. The Constitution's
provisions cannot be violated by any branch of government. If one arm of
government attempts to do so, the judiciary has the authority to declare the
action illegal. The other organs of government must respect and uphold the
constitution in addition to the judiciary. The court will always seek to protect

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 the constitution as supreme and will act without hesitation to declare any act
of any branch of government that violates it in the future.
‘Basic Structure Theory’ propounded by the SC in the case of “Keshavananda
Bharti v. State of Kerala”, and the court held “that Basic Structure is not
contained in one or more provisions of the Constitution of India, but it is
supposed to be the sum total of the core of our Constitution. Moreover, judicial
review is also a part of basic structure. So, while pronouncing a Judgement the
Judiciary has to keep in mind this Basic Structure.”
2. protection of Fundamental Rights is paramount: The judiciary will continue to
defend citizens' fundamental rights. A court with active judicial power takes
seriously its responsibility to protect the people's freedoms and fundamental
rights from attacks by the state. To safeguard fundamental rights, the courts
would need to step in. This chance frequently presents itself when the
executive branch fails to carry out its constitutional and legal duties.

People’s basic rights are compromised as a result of this failing. The

Constitution itself gives the judiciary the authority to review actions taken by
the state. In the constitutional framework, Parliament is not the highest
authority.

There is a major constraint on the fact that legislation cannot violate any basic
right or value found in the Constitution. Ensuring that fundamental rights are
not violated and that essential constitutional ideals are upheld is the judiciary’s
responsibility. Stated differently, the chapter on fundamental rights serves as
a check on the authority of Parliament.

The Court has the authority to determine whether Parliament has violated this
restriction or not. However, there is no strict division of powers under the
Indian Constitution. Every country must draft its Constitution in light of its
own needs, desires, and issues.

Justice Krishna Eyre once said: “Every new decision, on every new situation,
is a development of the law and law does not stand still. It moves continually”.
The courts cannot remain silent spectators and let the fundamental rights be
violated. It would be an inactive judiciary if the judiciary did not intervene.

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3. Implementation of Judicial Decisions: only pronouncement of Judicial
Decisions after Judicial review is not enough; there must be implementation
of that decision. In “Shayara Bano v. Union of India” case, SC declared that
the Muslim practice of Triple Talaq or instant divorce by uttering "talaq" three
times "illegal and sinful". “Triple talaq" is not integral to religious practice
and violates Constitutional morality", said the court. Chief Justice J.S. Khehar
and other five judges who were from different religious faith - Christianity,
Hinduism, Zoroastrianism, Islam and Sikhism. Three of them, Justice
Rohington Nariman, UU Lalit and Justices Kurian Joseph said “what is sinful
under religion cannot be valid under law. They asserted that ‘Triple Talaq’ may
be a permissible practice but it retrograde and unworthy. Since triple talaq is
instant it is irrevocable and the marital tie gets broken, it violates the right to
equality”. In month of July 2019 Indian parliament passed a law related to
marriage of muslin women. This is a very good example of implementation
of judicial review.
4. Open the various benches of High Court’s and SC at other suitable places:
The Indian Supreme Court is the highest court in the country and is
overflowing with cases. It is the highest appellate court in India. The SC takes
years to decide average people's claims. No court of law may hear an appeal
of the SC’s decision. The government could establish Indian SC benches in
other appropriate locations in order to reduce the backlog of court proceedings.
Additionally, the high court benches will be opened to allow members of the
lower economic classes to exercise their legal rights.

5. Legal awareness: People of all ages should receive greater legal education,
according to government policy. It is advised that legal education programs be
implemented in all educational levels, from junior to senior, to ensure that
students are aware of their rights and responsibilities. Furthermore, a sizable
portion of society lacks the means to file a complaint with a higher court when
their fundamental rights are violated. These people are impacted by a number
of issues, including financial hardship, deep-rooted societal discrimination,
poverty, and a lack of legal knowledge. The government ought to approve
greater funding for raising this group of people's legal awareness. Therefore,
those who have been wronged in such a society may file a complaint with a

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higher court if their fundamental rights have been violated.
These are a few recommendations about the judicial review doctrine. After my
research, I would like to state that this theory has a significant impact on courts
as well as the lives of laypeople because it grants the SC the authority to make
corrections and administer justice in cases of constitutional violations or
abridgments. The main factor behind the success of democracy in both
America and India is this theory. This idea prevents the government from
serving as an arbiter.

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 BIBLIOGRAPHY

1. Legislations/Statutes

➢ Indian Penal Code, 1860

➢ The Code of Criminal Procedure, 1973
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➢ Anand, A.S., Judicial Review-Judicial Activism-Need for Caution, JILI Vol.

42

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➢ Alexander, Roshen D., We, The People: Experiments with Judicial Review, ,
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➢ www.vakilnol .com
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