Concept of Judicial Review

Concept of Judicial Review

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

INTERPRETATION OF STATUES PROJECT

CONCEPT OF JUDICIAL REVIEW

SUBMITTED TO: Dr. Ramesh Kumar

SUBMITTED BY: Ashish Singhal Roll No. 21 VII Semester B.A.LL.B

1

Concept of Judicial Review

ACKNOWLEDGMENT 

I would like to thank and express my gratitude towards my professor Dr. Ramesh Kumar for providing guidance in making this project. I would like to express deep gratitude towards sir for providing useful information for completing this project.

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Concept of Judicial Review

INDEX 1. Meaning

4

2. Definition

4

3. Origin

5

4. Judicial Review in India

5

5. Cases on Judicial Review in India

9

6. Extent of Judicial Review in India

11

6.1 Judicial review of political issues 6.2 The basic principles of judicial review of constitutional status 6.3 Judicial activism the expansion of judicial review 7. A Comparison of Judicial Review in India with that of U.S.A

14

8. Restrictions on the Right of Judicial Review

15

9. A Word of Caution

17

10. Conclusion

20

BIBLIOGRAPHY

21

3

Concept of Judicial Review

1. Meaning

Literally the notion of judicial review means the revision of the decree or sentence of an inferior court by a superior court. Judicial review has a more technical significance in pubic law,  particularly in countries having a written constitution which are founded on the concept of limited government. Judicial review in this case means that “Courts of law have the  power of testing the validity of legislative as well as other governmental action with reference to the provisions of the constitution.” 2. Definition

According to Black's Law Dictionary , judicial review is "a philosophy of judicial decisionmaking whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to i gnore precedent." Merriam-Webster's Dictionary of Law , defines judicial review as "the practice in the judiciary

of protecting or expanding individual rights decision that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent." 1

The Dictionary of Political Science,   defines Judicial Review as “The power of the court to review statutes or administrative acts and determine their constitutionality, the examination of Federal and State Legislative Statutes and the acts of executive officials by the courts to determine their validity according to written Constitution”. 2

The Supreme Court in Kartar Singh v. State of Punjab , explained Judicial review as it is not only concerned with the merits of the decision but also of the decision-making process. It intends to protect the individual against the misuse or abuse of the power by a wide range of authorities. Judicial review is a protection to the individual and not at weapon. Section 114, CPC, 1908   defines Judicial Review as a Means to look again main object of

granting a review of judgment in reconsideration of the same matter by the same judge under certain conditions. 1

 Joseph Dunner, 1965, p. 285.  (1994) 3 SCC 569 (738)

2

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Concept of Judicial Review

3. Origin

The doctrine of judicial review has been originated and developed by the American Supreme Court, although there is no express provision in the American Constitution for the judicial review. In Marbury v. Madison , the Supreme Court made it clear that it had the  power of judicial review. Chief Justice George Marshall  delivering the judgment stated; “ Certainly all those who have framed the written Constitution contemplate them as  forming the fundamental and paramount law of the nations, and consequently, the theory of every such Government must be that an act of the legislature, repugnant to the Constitution is void”. There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts declare void the acts of the legislature and the executive, if they are found in violation of the  provisions of the Constitution. 4. Judicial Review in India

The constitution of India, in this respect, is more akin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary enactment invalid. On the contrary every court is constrained to enforce every provision" of the law of parliament. Under the constitution of India parliament is not supreme. Its powers are limited in the two ways. First, there is the division of powers between the union and the states. Parliament is competent to pass laws only with respect to those subjects which are guaranteed to the citizens against every form of legislative encroachment. Being the guardian of Fundamental Rights and the arbiter of constitutional conflicts between the union and the states with respect to the division of powers between them, the Supreme Court stands in a unique position where from it is competent to exercise the power of reviewing legislative enactments both of parliament and the state legislatures.

5

Concept of Judicial Review

This is what makes the court a powerful instrument of judicial review under the constitution. As Dr. M.P. Jain has rightly observed: "The doctrine of judicial review is thus firmly

rooted in India, and has the explicit sanction of the constitution."  In the framework of a constitution which guarantees individual Fundamental Rights, divides power between the union and the states and clearly defines and delimits the powers and functions of every organ of the state including the parliament, judiciary plays a very important role under their powers of judicial review. The power of judicial review of legislation is given to the judiciary both by the political theory and text of the constitution. There are several specific provisions in the Indian constitution,  judicial review of legislation such as Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372. Article 372 (1)   establishes the judicial review of the pre-constitutional legislation

similarly. Article 13 specifically declares that any law which contravenes any of the provision of the part of Fundamental Rights shall be void. Even our Supreme Court has observed, even without the specific provisions in Article 13. The court would have the power to declare any enactment which transgresses a Fundamental Right as invalid. The Supreme and high courts are constituted the protector and guarantor of Fundamental Rights under Articles 32 and 226. Articles 251 and 254 say that in case of in consistent if between union and state laws, the state law shall be void. Judicial review is a great weapon in the hands of judges. It comprises the power of a court to hold unconstitutional and unenforceable any law or order based upon such law or any other action by a public authority which is inconsistent or in conflict with the  basic law of the land. In fact, the study of constitutional law may be described as a study of the doctrine of judicial review in action The courts have power to strike down any law, if they believe it to be unconstitutional. 3

The judgment in  I.R. Coelho v. the State of Tamil Nadu   has answered this question by establishing the pre-eminence of judicial review of each and every part of the Constitution. The 3

 (1999) 7 SCC 580 6

Concept of Judicial Review

Court has laid down a two-fold test: (a) whether an amendment or a law is violative of any of the Fundamental Rights in Part III (b) if so, whether the violation found is destructive of the  basic structure of the Constitution. If the court finds that the impugned enactment damages the basic structure of the Constitution, it shall be declared void, notwithstanding the fictional immunity given to it by Article 31B.Thus, the basic structure doctrine requires the State to justify the degree of invasion of Fundamental Rights in every given case; and this is where the court's power of judicial review comes in. 4

Under our Constitution, judicial review can conve niently be classified under three heads : (1) Judicial review of Constitutional amendments.- This has been the subject-matter of

consideration in various cases by the Supreme Court; of them worth mentioning are: 5

6

7

8

Shankari Prasad case , Sajjan Singh case , Golak Nath case , Kesavananda Bharati case , 9

10

Minerva Mills case , Sanjeev Coke case

11

and Indira Gandhi case . The test of validity of

Constitutional amendments is conforming to the basic features of the Con stitution. (2) Judicial

review

of

legislation

of

Parliament,

State

Legislatures

as

well

as

subordinate legislation.- Judicial review in this category is in respect of legislative competence

and violation of fundamental rights or any other Constitutional or legislative limitations; (3) Judicial review of administrative action of the Union of India as well as the State Governments and authorities falling within the meaning of State. The researcher‟s

emphasis is in this direction. It is necessary to distinguish between „judicial review‟ and „judicial control‟. The term  judicial review has a restrictive connotation as compared to the term judicial control. Judicial review is „supervisory‟, rather than „corrective‟, in nature. Judicial review is denoted by the writ system which functions in India under Arts. 32 and 226 of the Constitution. Judicial control, on 4

 Justice Syed Shah Mohammed Quadri, Judicial Review of Adminstrative Action, (2001) 6 SCC (Jour) 1.  Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458 6  Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 7  Golak Nath v. State of Punjab, AIR 1967 SC 1643 8  Kesavananda Bharati v. Union of India, AIR 1973 SC 1461 9  Minerva Mills v. Union of India, AIR 1980 SC 1789 10  Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147 11  Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 5

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Concept of Judicial Review

the other hand, is a broader term. It denotes a much broader concept and includes judicial review within itself. Judicial control comprises of all methods through which a person can seek relief against the Administration through the medium of the courts, such as, appeal, 12

writs, declaration, injunction, damages statutory remedies against the Administration . Therefore judicial review is a fundamental principle of law that every power must be exercised within the four corners of law and within the legal limits. Exercise of administrative power is not an exception to that basic rule. The doctrines by which those limits are ascertained and enforced form the very marrow of administrative law. Unfettered discretion cannot exist where the rule of law reigns. Again, all power is capable of abuse, and that the power to prevent the abuse is the acid test of effective judicial review.

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Under the traditional theory, courts of law used to control existence and extend of  prerogative power but not the manner of exercise thereof. That position was, however, considerably modified after the decision in Council of Civil Service Unions v. Minister for 14

Civil Service , wherein it was emphasized that the reviewability of discretionary power

must depend upon the subject-matter and not upon its source. The extent and degree of judicial 15

review and justifiable area may vary from case to case . At the same time, however, the power of judicial review is not unqualified or unlimited. If the courts were to assume jurisdiction to review administrative acts which are „unfair‟ in their opinion (on merits), the courts would assume jurisdiction to do the very thing which is to  be done by administration. If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk. It is submitted that the following observations of Frankfurter, I. in Trop v. Dulles

16

lay down correct legal position:

12

 M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the Subject containing case-law reference (Indian & Foreign), 6th Ed., Wadhwa and Company Nagpur, New Delhi, 2007, p. 1779. 13  Wade, Administrative Law, (1994), pp. 39-41 14  (1984) 3 All ER 935: (1984) 3 WLR 1174: (1985) AC 374. 15  Craig, Administrative Law, (1993), p. 291. 16  (1985) 35 US 86. 8

Concept of Judicial Review

“All power is, in Madison‟s Phrase „of an encroaching nature‟. Judicial Power is not   immune against this human weakness. It also must be on guard against encroaching beyond its  proper bounds, and not the less so since the only restraint upon it is self restraint.” 5. Cases on Judicial Review In India

The basic function of the courts is to adjudicate disputed between individuals and the state, between the states and the union and while so adjudicating, the courts may be required to interpret the provisions of the constitution and the laws, and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land. There is no appeal against the judgement of the Supreme Court. In Shankari Prasad vs. Union of India

17

the first Amendment Act of 1951 was

challenged before the Supreme Court on the ground that the said Act abridged the right to  property and that it could not be done

as there

was

a restriction on the amendment of

Fundamental Rights under Article 13 (2). The Supreme Court rejected the contention and unanimously held. "The terms of Article 368 are  perfectly general

and

empower parliament

to

amend

the

constitution without any

exception whatever. In the context of Article 13 law must be taken to mean rules or regulations made in exercise of ordinary legislative power and amendments to the constitution made in exercise of constituent power, with the result that Article 13 (2) does not affect amendments made under Article 368." 18

In Sajan Singh's case , the corupetence of parliament to enact 17th amendment was challenged  before the constitution. Bench comprising of five judges on the ground that it violated the Fundamental Rights under Article 31 (A). Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when article 368 confers on parliament the right to amend the constitution the power in question can be exercised over all the provisions of the constitution, it would be unreason about to hold that the word law' in article 13 (2) takes in amendment Acts passed under article 368.

17

 AIR 1951 SC 458  Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845

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Concept of Judicial Review

Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and could not be struck down by the application of article 13 (2). 19

The historic case of Golak Nath vs. The state of Punjab  was heard by a special bench of 11  judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged. The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed. (1) Article 368 only provides a procedure to be followed regarding amendment of the constitution. (2) Article 368 does not contain the actual power to amend the constitution. (3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list. (4) The expression 'law' as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power. (5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) of it takes away or abridges the rights conferred by part III of the constitution. (6)

The

First

Amendment

seventeenth Amendment Act.

Act

1951,

1964

the

fourth

abridge the

Amendment

scope of

Act

1955

and

Fundamental Rights

the and,

therefore, void under Article 13 (2) of the constitution. (7) Parliament will have no power from the days of the decision to amend any of the provisions of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined there in.

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 AIR 1967 SC 1643 10

Concept of Judicial Review

The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of law to change or destroy the entire fabric of the constitution through the instrumentality of parliament's amending power. 20

In Minerva Mills case  the Supreme Court by a majority decision has trunk down section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24, 19 and 31 of part III of the constitution, on the ground that part III and part IV of the constitution are equally important and absolute primacy of one over the other is not permissible as that would disturb the harmony of the constitution. The Supreme Court was convinced that anything that destroys the balance between the two part will I psoTacto destroy an essential element of the basic structure of our constitution. 6. Extent Of Judicial Review In India

From 1950 to 1975, the Indian Supreme Court ruled that more than one hundred federal and state case Laws, constituted unconstitutional. The judiciary in the constitutional system, made a very important position. Indian Supreme court on a series of allegations of violation of basic human rights under the Constitution of India conducted a judicial review of cases. The Supreme Court's  position is that any attempt to amend the Constitution related to impact of civil rights legislation or regulations are subject to subject to judicial review. India has also restricted judicial review of executive and legislative powers to play a role. Judicial review of legislation from the early review extends to all acts of government or administration. It can be said that in addition to specific case, the Court exercise their restraint of judicial power, judicial review has almost no borders. 6.1 Judicial review of political issues: In the early practice of judicial review, Supreme

Court of India was that if the case involved political issues, does not apply to judicial review. But then this position has changed slowly, in Keshavananda Bharathi case , the Court noted that "involves tampering with the Constitution judicial review of cases may involve

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 (1980) 3 SCC 625 11

Concept of Judicial Review

 political issues, but only the court has the power to judge cases. interpret the Constitution's  powers should be attributed to the State jurisdiction ". The Court's position in the later case in a series of further specific, as in S. R. Bommai case,  the court decision that "The state Governor, the President formed the basis of his political views may be based on judgments, it is not appropriate for judicial review. If Justice will fall into a complex political disputes, which the court should be avoided. So , the court can not forbid the President to exercise the powers conferred on him by the Constitution, unless the evil abuse of power, but the court also noted that" judicial review although it can not review the President's subjective judgments, but the president may review the basis on which to make decisions.” From these precedents it can be seen that the Indian courts in dealing with the basic legal and  political position of the judiciary in finding significant matters involving politics should be careful to play its role of judicial review, and some restraint in handling cases, to avoid use of  judicial jeopardize the constitutional review powers the legislative and executive powers, but the  judiciary but also to minimize the abuse of presidential power judicial review and supervision should be ultra vires the right balance. 6.2 The basic principles of judicial review of constitutional status:   In 1973, the Supreme 21

Court in the landmark Keshavananda Bharathi v. State of Kerala  case presented the basic  principles of judicial review. Legislature can ame nd the constitution, but cannot change the basic  principles of the Constitution. If the violation of basic constitutional principles, constitutes unconstitutional is generally believed that the basic principles of the Constitution of India has the following five basic points: the supremacy of the Constitution, republican and democratic form of government, secular constitution, legislative, administrative and judicial separation of powers and federalism. These  basic principles are throughout the Preamble to the Constitution of India and the entire framework of the Constitution. The Constitution is built on the basic principles citizens on the basis of freedom and dignity, the Indian Constitution, the Law may not deprive citizens of any form of freedom and dignity. The basic principle of the Constitution is only a matter of  principle, not exhaustive revision of the constitution limits the power of all cases. 21

 AIR 1973 SC 1461 12

Concept of Judicial Review

In the subsequent series of cases, the court of judicial review is further recognized as one of the basic principles of the Constitution. The Court in some cases held that judicial review is a constitutional fundamental and essential feature. If the judicial review is absolutely deprived of the Constitution had no vitality. The Court further pointed out that if the Supreme Court ruled out legislation enjoy the constitutional right to judicial review, and with no other alternative mechanisms for judicial review is in violation of the basic  principles of the Constitution, the Congress, the legislation goes beyond the scope of legislative power. In 1997 in, L. Chaiadra Kumar V Union of India

22

case, the Constitutional Court more

clearly stated that "the Constitution and Articles 32 &226 were granted to the Supreme Court and High Court judicial review of existing legislation is a constitutional right to an integral and essential element judicial review itself constitutes one of the basic principles of the Constitution. Indian Supreme Court precedent established by judicial review the basic  principles of the Constitution, this Constitution and the rule of law in India's role can not  be ignored, for enhancing the legislative and executive powers of judicial checks and balances  play an important role. But given the absolute power of judicial review, in fact distorted the  balance of power theory, to some extent, led to the expansion of judicial review and abuse of  power. 6.3 Judicial activism the expansion of judicial review:   After 80 years of the 20th century,

 public demand for government administration in strict accordance with the Constitution and laws, hoping to promote administrative reform through judicial growing louder and louder, the judiciary is also required in response to the public judicial activism began to take 23

 position. In the subsequent case of Menaka Gandhi , the Supreme Court to promote the implementation of the Constitution in terms of protection of citizens basic human rights, and to seek India's laws in line with the global trend of legal protection of basic human rights. The court of human rights protection thanks to a series of successful litigation procedural law reform, as introduced in the procedural law of social activities on litigation, public interest

22

 (1997) 3 SCC 261  AIR 1978 SC 597

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Concept of Judicial Review

litigation and other new design of the system, so that vulnerable groups in society can more easily enter the judicial process. Indian court has also sought, through judicial interpretation of constitutional provisions to achieve its goals. 80 years in the 20th century and early 90s, the Indian court would change its traditional law enforcement agencies as a simple nature of many of its  political decision to the Indian society, the enormous social and economic change. While  judicial activism has played an active court supervision of administrative and legislative  powers, the role of the effective exercise of judicial power, to some extent contributed to the improvement of the rule of law in India. But on the other hand, the Supreme Court's new role of judicial activism also has been criticized, and many Critics accused him of breach of the principle of separation of  powers, especially the Supreme Court administrative action policies and guidelines established  by the widely criticized, is considered by more powers of the executive and legislative areas. As a result, limit the power of judicial review has be come India's new task of constitutional law. 7. A Comparison of Judicial Review in India with that of U.S.A

The scope of Judicial Review in India is somewhat circumscribed as compared to that in the U.S.A. In India the fundamental rights are not so broadly corded as in the U.S.A and limitations there on have been stated in the constitution itself and this task has not been left to the courts. The constitution makers adopted this strategy as they felt that the courts might find it difficult to work act the limitations on the fundamental rights and the same  better be laid down in the constitution itself. The constitution makers also felt that the Judiciary should not be raised at the level of 'Super legislature', whatever the justification for the methods logy adopted by the constitution makers, the inevitable result of this has been to restrict the range of judicial review in India. It must, however, be conceded that the American Supreme Court has consumed its  power to interpret the constitution liberally and has made so thorough a use of the due  process of law clause that it has become more than a more interpreter of law. It has, in fact come to occupy the position of a maker of law and has been correctly described as a 'third

14

Concept of Judicial Review

chamber of the legislature, indeed, as a super legislature. Of course the U.S. Supreme Court has assumed this position; it has not been specifically conferred upon it by the constitution. Like the American Supreme Court, the Supreme Court of India enjoys the power of Judicial Review' and this power has been specifically recognized by the constitution. However its authority in relation to 'judicial review of legislation is more restricted than that of the American Supreme Court. The framers of the Indian constitution took good care not to embody the due process of law clause in the constitution. On the contrary, the Indian constitution refers it to 'procedure established by law'. It can invalidate laws if they violate provisions of the constitution but not on the ground that they are bad laws. In other words the Indian Judiciary including the Supreme Court is not a Third Chamber claiming the power to sit in judgement on the policy embodied in the legislation passed by the legislature 8. Restrictions on the Right of Judicial Review

1.

A Court cannot take up a matter for judicial review sua moto. It has to wait till the

case is brought before it by the parties or through PIL. 2. The Court cannot enter into policy decisions of the government such as the economic policy. Also matters involving political questions cannot be decided by the Court. Only disputes inter parties can be decided by the Court. 3. The Constitution is the supreme law of the land and all state organs –   Legislature and Executive are bound by it. The Constitution has provided for separation of powers  between the Legislature, Executive and Judiciary and therefore each organ must act within the limits prescribed for it. The Courts as interpreter of Constitution and arbiters of legal disputes may declare any law made by Legislature or any act of the Executive as unconstitutional if it violates the limits placed by Constitution. In doing so the Courts have to give due regard to the powers and autonomy of the other organs. For example Courts presume that Legislature acts are constitutional unless proved otherwise and they interfere only in clear cases. But the cases are not always clear and therefore an unending debate

15

Concept of Judicial Review

continues on the role of Courts in judging an act of the Legislature and Executive as unconstitutional. 4.

The main controversy is that whether amendment of the Constitution is subject to th

 judicial review. Art 13(4) which was added by the Constitution 24

Amendment Act,

1971 explicitly states that nothing in Art 13 shall apply to any amendment of this Constitution made under Art 368. The same Amendment Act also added clause (3) to Art 368 which states that nothing in Art 13 shall apply to any amendment made under this article. In Golak Nath v. State of Punjab , the constitutional validity of Constitution (17

th

Amendment) Act was challenged. The Supreme Court by 6:5 held that the word law in Art 13(2) included amendments to the Constitution and consequently if an amendment abridged or took away a Fundamental Right guaranteed by Part  – III of the Constitution, the amending Act itself was void and ultra vires. th

th

To neutralize the effect of Golak Nath, 24 Amendment Act and 25   Amendment Act (Art 31-C was added). th

In Keshavananda Bharati v. State of Kerala , the constitutional validity of 24   and th

25   Amendment Act was challenged in the Supreme Court. The Supreme Court overruled the th

Golak Nath‟s case and it was unanimously held that the Constitution 24   Amendment Act was valid. All the judges agreed that under the amended Art 368 all provisions of the Constitution including those enshrining Fundamental Rights could be amended. However, the majority of 7:6 being invalidated on the ground that it violates the basic structure. In I. R. Coelha v. State of Tamil Nadu , a nine Judge Constitution Bench held that any law th

 placed in the 9

Sch. after Apr 24, 1973 when Keshavananda Bharati‟s judgment was th

delivered will be open to challenge. The Court said that even though on Act is put in the 9  Sch.  by a Constitution Amendment its provisions would be open to challenge on the ground that they destroy or damage the basic structure.

16

Concept of Judicial Review

Thus, the judiciary plays an important role as custodian of the rights of the citizens. In a federal Constitution it has another important role of determining the limits of the powers of the Centre and the States. It is therefore necessary that the Judiciary should be independent and free from the influence of the Executive. 9. A Word of Caution

There are many examples where Supreme Court has decided a lot of cases in the field of social welfare. But this pleasing and positive personality of the court and evolution of the PIL created a lot of the problems also. These all judgments are best at their place but this does not mean that judicial activism is always found to be in good line. Following two judgments will tell us what harm judicial activism could cause. Ashok Hurra vs Rupa Bipin Zaveri

24

In this particular case, the plaintiff and the

defendant filed for divorce by mutual consent after a few troubled years of marriage. However, the wife withdrew her consent before divorce was granted. Keeping this in mind, the lower court did not grant divorce to the husband. However, taking into consideration the fact that consent had been withdrawn after the 18 month period prescribed under the Hindu Marriage Act, the High Court granted divorce. The wife appealed to the Supreme Court. In the meantime, the husband got married elsewhere and had a son. The Supreme Court held that although the husband ought not to have married before the disposition of the appeal, irretrievable breakdown of marriage had taken place. The parties had been suffering for 12 years and hence it would not be right to prolong their agony. Although the court made serious remarks about the behaviour of the husband, it was held that divorce had been granted and that the second marriage was valid. This Shocking and astounding judgment well and truly defeats the purpose of an appeal to the Supreme Court. The Supreme Court accepted that the husband should not have remarried  before the disposition of the appeal but at the same time, it held the second marriage valid. Granted that there was no possibility of reconcialiation in the marriage with Rupa Hurra,

24

  AIR 1266 1997 17

Concept of Judicial Review

 but the manner of grant of divorce deserves serious criticism. Since the appeal was pending in the apex court, it cannot be said that divorce had been granted with finality. Yet the husband remarried, and yet the marriage was held to be valid by the Supreme Court. This may  become a weapon in the hands of the people wanting to get remarried before disposition of appeals in higher courts. 25

In Arnit Das vs. State of Bihar  A crime of murder was registered at Patna according to which one Abhishek was shot dead. On 13.9.1998 the petitioner was arrested in connection with the said offence. A day later the petitioner was produced before the Additional Chief Judicial Magistrate, Patna who after recording his statement remanded him to a Juvenile home in Patna. The petitioner claimed to have been born on 18.9.1982 and therefore a juvenile, entitled to  protection of The Juvenile Justice Act, 1986. The petitioner's claim was disputed on behalf of the prosecution. The A.C.J.M. directed an enquiry to be held under Section 32 of the Act. The petitioner was referred to examination by a Medical Board. On receipt of the report of the Medical Board and on receiving such other evidence as was adduced on behalf of the  petitioner, the A.C.J.M. concluded that the petitioner was above 16 years of age on the date of the occurrence and therefore was not required to be tried by a Juvenile Court. The finding was upheld by the Sessions Court in appeal and the High Court in revision. On appeal to the Supreme Court, it was decided that the crucial date is not the day on which the offence is committed but on the day on which the offender is brought before a competent authority. It was never a disputed fact as to whether the offender was a juvenile on the date of the commission of the offence. It was hence never necessary for the Supreme Court to decide on the issue of whether the date of the commission of the offence or the date on which the offender is brought before a competent authority is the date on which the offender should  be a juvenile The Juvenile Justice Act was enacted in order to protect the interest of Juveniles, taking into consideration the age of the person when the offence was committed. The fact that the offender may not have been well aware of the effects of his act contributes to the sanctity of the

25

 AIR 2001 3575 18

Concept of Judicial Review

legislation. However, what happens in a case where an offender is arrested 30 years after the commission of the offence? Does one send him to a remand home with other juveniles regardless of the fact that he is not of their age? Does one try him as a regular offender regardless of the fact the offence had been committed when he was not of age? Irrespective of how much time elapses after the incident, the offence itself remains an offence committed by a juvenile and the person should thus be judged according to his age and intent at the time of the commission of the offence. The Supreme Court however, provides no guidelines about the aforementioned issue and how this particular situation should be handled. In

a

monograph

"Judicial

Activism

and

Constitutional

Democracy

in

India"

commended by Professor Sir William Wade, Q.C. as a "small book devoted to a big subject", the learned author, while recording appreciation of judicial activism, sounds a note of caution- "it is plain that the judiciary is the least competent to function as a legislative or the administrative agency. For one thing, courts lack the facilities to gather detailed data or to make probing enquiries. Reliance on advocates who appear before them for data is likely to give them partisan or inadequate information. On the other hand if courts have to rely on their own knowledge or research, it is bound to be selective and subjective. Courts also have no means for effectively supervising and implementing the aftermath of their orders, schemes and mandates, since courts mandate for isolated cases, their decrees make no allowance for the differing and varying situations which administrators will encounter in applying the mandates to other cases. Courts have also no method to reverse their orders if they are found unworkable or requiring modification". Highlighting the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the learned author advises "the Supreme Court could have well left the decision- making to the other branches of the government after directing their attention to the problems, rather than itself entering the remedial field". One more problem which Supreme Court is facing is the over flow of cases in Supreme Court through PILs. Now a times it is hobby of some the NGOs to file writ petitions on valuable causes off course but they don‟t mind if it is frivolous and not worth.

19

Concept of Judicial Review

One of the usual misunderstandings in judicial review of the action of legislature and executive seems to arise as if courts consider them self superior to legislature and executive. If it would be like that then it will result in creation of third chamber of legislation which is against the principle constitutionalism. 10. Conclusion

The Supreme Court of India is no doubt the finale interpreter of the constitution as we have studied and analysed from many cases. It is playing a role of protector and working at its best. With its intellect and time our supreme court has achieved a lot more than bare rigid law interpreter made by the legislation. Now with its power of judicial review and judicial activism this court is doing a lot for the social welfare. It has become the last resort for the weak sections of the society. But on the other hand this law making power in the hands of the judiciary is posing a threat to the state constitutionalism. India is following constitution and its spirit is to establish constitutionalism in the country. But this power of the Supreme Court can lead to the country where judiciary will be the head. It is synonymous of creating a third chamber of legislation, which is against the principle of constitutionalism i.e. idea of limited government where a organ of the government can be checked on the ground of being arbitrary. So in the end I would like to say that this power requires a sense of causation while exercising it. Court should not act arbitrarily. “great powers bring great responsibilities”, this quotation of some scholar can guide the court while using its powers.

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Concept of Judicial Review

BIBLIOGRAPHY

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10. J.N.Pandey, THE CONSTITUTIONAL LAW OF INDIA, 45  edition, 2008, Central Law Agency 11. Basu, Durga Das, Administrative Law, 5th Ed., Kamal Law House, Calcutta, 1998. 12. Jain, M.P. and S.N. Jain, Principles of Administrative Law: An Ex haustive Commentary on the Subject containing case-law reference (Indian & Foreign), 6th Ed., Wadhwa and Company Nagpur, New Delhi, 2007. 13. Rai, Kailash, Administrative Law, Allahabad Law Agency, Haryana, 2006. 14. Takwani, C.K., Lectures on Administrative Law, Eastern Book C ompany, Lucknow, 2003. 15. Wade, Administrative Law, (1994),

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