PROJECT ON

Constitution Law
“Judicial Review”

Submitted To: - Prof.

Submitted By: - Nikhil Mahesh Khaire

Date of Submission: - 05/July/2023

ID NO.: -65

LLB 1St Year – 2022-2023

KLE COLLEGE OF LAW,

NAVI MUMBAI
 ACKNOWLEDGEMENT

The success and final outcome of research paper required a lot of guidance and assistance
from many people and I’m extremely fortunate to have got this along the completion of the
research project. Whatever I have done is only due to such guidance and assistance and I
would not forget to thank them I respect and thank Principal DINKAR GITTE, and
Professor for giving me this opportunity to do this research work and providing me all
support and guidance which made me complete the research work on time.

I am extremely grateful to her for providing such a nice support and guidance for converting
my thoughts into reality and for encouragement to prepare the project of Constitution Law.
The research to enhance my ability in the field of law. I am grateful because I managed to
complete this assignment within the given time. This assignment would not have completed
without effort and cooperation from my teachers hence once again, I would like to express
my gratitude to them.
Abstract

The abstract of judicial review in constitutional law refers to the power of a court, typically a constitutional
court or a supreme court, to examine and interpret the constitutionality of laws, acts, or actions of the
government. It involves the authority of the judiciary to review and potentially invalidate legislation or
executive actions that are found to be inconsistent with the provisions of the constitution.

Judicial review serves as a fundamental mechanism for upholding the supremacy of the constitution and
ensuring the protection of individual rights and the separation of powers. It allows the judiciary to act as a check
on the legislative and executive branches, ensuring that they do not exceed their constitutional authority or
violate the fundamental rights guaranteed by the constitution.

Introduction

Law plays an important role in today’s society. People have given up on their rights and entered into a contract
with the government in return of which the government gave them protection against the wrong. This is known
as the Social Contract Theory given by Hobbes. In this phase of Rule of Law, the law without justice can
become arbitrary and can be misused. So to keep check and balance on the power of each organ of government
we have further adopted Judicial Review. Judicial review is the process by which the court declares any law
which goes against the constitution as void. We have adopted this feature from the United States Constitution.
But it took a lot of years to fix this feature in our constitution. Judiciary has played an important role in this
regard. Judicial Review can be of Constitutional Amendments, Legislative actions and of Laws made by the
legislature. In this research paper, we will discuss the history, growth, features and types of Judicial Review
with Indian case laws.

In India, there are three organs of government namely Legislature, Executive and Judiciary. The Legislature
performs the function of making the laws, the Executive executes/implements the laws and the Judiciary keeps a
check on both the organs specified above and makes sure the laws being made and implemented are not ultra
vires to the Constitution of India. To make these organs work in their specified limits our constitution has the
feature of Separation of Power. Article 50 of the Indian Constitution talks about the separation of power.

This concept is not followed in the strict sense as compared to the USA from where it has been adopted. The
concept of Judicial Review has been adopted from the American Constitution. The Judiciary has the power to
set aside any law passed by the parliament if it intervenes in the Constitution of India. Any law passed by the
legislature that contravenes the Constitution can be made null and void by the Judiciary. Under Article 13(2) of
the Constitution of India, any law made by the parliament that abridges the right conferred to the people
under Part 3 of the constitution is void-ab-initio. The power to interpret the Constitution of India to its full
extent lies within the Judiciary. It is the protector of the Constitution of India. Power of Judicial Review is
vested in many articles such as 13, 32,131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372(1) talks about Judicial review of the pre-constitutional laws that were in force before the
commencement of the Constitution of India.

Article 13(2) further talks about any law made by the parliament after the commencement of the constitution
shall be declared null and void by the Court.

The Supreme Court and High Court are said to be the guarantors of Fundamental given by the constitution. If
any person’s Fundamental right is violated he/she can approach the court under Article 32 or Article 226 of the
constitution.
Article 251 and 254 states that if there is any inconsistency between the union and state law, the law of union
shall prevail and the state law shall be deemed void.

History of Judicial Review

The word judicial review at a very early instance came before the court in Dr Bonham Case. In this case, Dr
Bonham was forbidden to practice in London by the Royal College of physicians as he was not having a license
for the same. This case is also known for the violation of Principals of Natural Justice as in this case there is
pecuniary bias. As Dr Bonham is fined for his without a license, practicing the fine would be distributed
between the king and the college itself.

Afterwards, the word judicial review was summarized in Marbury V. Madison, 1803. In this case, the term
period of President Adam belonging to the Federalist Party came to an end and Jefferson the anti-federalist came
to power. On his last day, Adam appointed the members of the federal party as judges. But when Jefferson came
to power he was against this. So he stopped Madison the secretary of state, from sending the appointment letter
to the judges. Marbury, one of the judges, approached the Supreme Court and filed a writ of mandamus. Court
refused to entertain the plea and first opposed the order of the legislature i.e Congress and thus the US Supreme
court developed the doctrine of judicial review.

Why the judicial review is important

Judicial review is significant for the reasons mentioned as under:

 It averts the tyranny of executives.

 It safeguards the fundamental rights of the citizens.

 It is crucial for shielding the independence of the judiciary.

 It is an absolute necessity for maintaining the supremacy of the Constitution.

 It also helps in intercepting the misuse of power by the legislature and the executive.

 It aids in maintaining the equilibrium between the centre and the state, thus keeping a federal
balance.

Scope of judicial review

Judicial review is not absolute, as some situations need to be met in order to demur against any law in the
Supreme Court or the high courts, i.e., a law can be questioned only if:

 The law violates the fundamental rights that are enshrined by the Constitution.

 The law infringes upon the provisions listed in the Constitution.

 The enacted law goes beyond the capacity or power of the official(s) in charge that enacted it.

Features of Judicial Review

Power of judicial review can be exercised by both the Supreme Court and high courts:

Under Article 226 a person can approach the high court for violation of any fundamental right or for any legal
right. Also, under Article 32 a person can move to the Supreme Court for any violation of a fundamental right or
for a question of law. But the final power to interpret the constitution lies with the apex court i.e Supreme Court.
The Supreme Court is the highest court of the land and its decisions are binding all over the country.

Judicial Review of both state and central laws:

Laws made by centre and state both are the subject to the judicial review. All the laws, order, bye-laws,
ordinance and constitutional amendments and all other notifications are subject to judicial review which are
included in Article 13(3) of the constitution of India.

Judicial review is not automatically applied:

The concept of judicial review needs to be attracted and applied. The Supreme Court cannot itself apply for
judicial review. It can be used only when a question of law or rule is challenged before the Hon’ble court.

Judicial review is not suo motu

The Supreme Court or the high court for that matter do not use their authority to conduct a judicial review by
a suo motu action. However, such power is utilised when there is a question of law that comes before the courts
or during the court proceedings when any such incident occurs or such conditions arise as to where the law is in
question.

Principle of Procedure established by law:

Judicial Review is governed by the principle of “Procedure established by law” as given in Article 21 of the
Indian Constitution. The law has to pass the test of constitutionality if it qualifies it can be made a law. On the
contrary, the court can declare it null and void.

Functions of judicial review

Judicial review has two vital functions, namely:

1. Of making the actions of the government legitimate, and

2. To secure the Constitution from any undue encroachment by the government.

Judicial review can be done by whom?

Judicial review is interpreted as the doctrine under which executive and legislative actions are examined by the
judiciary. In India, even though we have the principle of separation of powers for the different organs of the
government, i.e., the executive, the legislative, and the judiciary, the judiciary is entrusted with the authority to
review the actions of the other two organs.

In India, judicial review can be done by the High Courts as well as the Supreme Court. The powers of judicial
review are delegated to the courts under Article 226 and Article 227 of the Constitution of India, as far as the
High Courts are concerned, and in Article 32 and Article 136 with regard to the Supreme Court.

Judicial review of ordinances

Article 123 and 213 of the Indian Constitution gives the president and the governor of the state to pass an
ordinance. An act of ordinance by the president or governor is within the same restrictions as which are placed
on parliament which makes any law. This power is used by the president or governor in exceptional conditions
only. The power should not be used mala fide. In a report published by the House of People, it was submitted
that till October 2016 president has made 701 ordinances. Through the ordinance, it was held that Rs.500 and
Rs. 1000 notes will cease to be liabilities from 31st December 2016.

In the case of AK Roy v. Union of India (1982) 1 SCC 271 it was held that the president’s power to pass an
ordinance is not a subject of Judicial Review.

In the case of T. Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198 it was held that just like
legislative power cannot be questioned, the ordinance made on the ground of motive or non-application of mind,
or necessity cannot be questioned.

Judicial review of Money Bill

Article 110(3) of the constitution of India states that whenever a question arises for whether a bill is a money
bill or not the decision of the speaker of Lok Sabha shall be final.

In the present scenario, a “money bill” is beyond the power of Judicial Review.

Article 212 of the constitution of India provides that the Courts cannot inquire proceedings of the Legislature on
the ground of any alleged irregularity of procedure.

Article 255 of the constitution of India provides that the recommendation and previous sanction are matters of
procedure only.

In the case of Mangalore Ganesh Beedi Works v. State of Mysore AIR 1963 SC 589, it was held that the
appellant was liable to sales tax under coinage act which was changed by coinage amendment act, 1955. So the
contention was that as it enhanced the tax the bill should be passed as a money bill and as it was not passed as a
money bill the tax should be held as invalid.

The Supreme Court held that the coinage amendment act 1955 substituted new coinage in place of old coinage
and thus it was no tax. By the way of obiter dicta, it was observed as if it would be a tax serving bill then also it
was out of the proceedings of judicial review.

Grounds for Judicial Review

Constitutional Amendment

Judicial Review in this phase is done for all the constitutional amendments done by the authority. All those
amendments which are in violation of Fundamental Rights are declared void and it is held to be
unconstitutional. All the judicial review for the constitutional amendments can be traced in history. We have
already seen in the above-mentioned case laws that the constitutional amendments were challenged and all those
against the constitution are declared unconstitutional and held void.

We can trace the marks of judicial review of the constitutional amendment in these cases:
Shankari Prasad V. Union of India;

Sajjan Singh V. State of Rajasthan;

I.C. Golaknath V. State of Punjab;

Kesavananda Bharti V. State of Kerala;

I.R Coelho V. State of Tamil Nadu.

Illegality

Lack of jurisdiction

If an administrative authority has no right to perform a particular act, any purported action of such a right will
be, as a matter of course, void and non-existent in the eyes of the law. Say for instance, if a minister has no
power to revoke a licence, an order of revocation passed by him will be ultra vires and lack jurisdiction,
as held in the case of R. vs. Minister of Transport (1934).

Further, in the case of Rafiq Khan vs. State of U.P. (1954), it was held that the Panchayat Raj Act, 1947 did not
give the Sub-Divisional Magistrate the authority to modify the order of conviction and sentence passed by a
Panchayat Adalat. The order passed by the Panchayat Adalat could either be quashed altogether or have the
jurisdiction of the Panchayat Adalat revoked. The Magistrate upheld the conviction of the accused in respect of
one of the offences only and quashed the conviction in respect of the other offences. So, the Allahabad High
Court subdued the conviction relating to the other offences via issuing a writ of certiorari.

A court may review an administrative action on the grounds that the authorities exercised jurisdiction that they
did not have originally. This review may be done on the following grounds (inter alia):

1. That the rules under which the administrative authority is composed and is exercising jurisdiction,
are in itself unconstitutional.

2. That the authority is not properly made in accordance with the rules and regulations or the laws.

3. That the authority has mistakenly made a decision upon a jurisdictional fact, hence, might have
assumed jurisdiction not belonging to the authority.

4. That there were some crucial preliminary terms that were conditions precedent for the exercise of
the jurisdiction but were disregarded.

5. That the administration/officials were inept to assume jurisdiction in respect of the subject matter,
areas and parties.

Excess of jurisdiction

It is mandatory that each and every administrative authority must exercise its power within the purview it is
entrusted with, i.e., it must not exceed the boundaries and govern everything by staying confined to the four
corners of the law. In case the power is exceeded, such an action will be deemed to be ultra vires and
therefore void.
In one case [County Council vs. Attorney General (1902) AC 165], a local authority had the power to operate
tramways, but this authority began to operate a bus service, thus acting ultra vires and therefore void. Pertaining
to the facts of the case, an injunction was applied for and duly granted by the Court.

Abuse of jurisdiction

This ground basically means that there should not be an act done in bad faith (mala fide actions), but authority
must always exercise its discretion for the reason it is allotted to them and must act in good faith ( bona
fide actions).

In the case of Pratap Singh vs. State of Punjab, AIR 1964, SC 72, a civil surgeon applied for a leave preparatory
to his retirement and was granted such a leave, which was withdrawn later. He was placed under suspension and
a departmental inquiry was ordered against him, which led to his dismissal from the post of civil surgeon. Here,
a petition was filed asserting that such an act was performed at the behest of the Chief Minister, who wanted to
settle a score with him since the time he had denied engaging in any illegal activities with the Minister. The
Hon’ble Supreme Court, after scrutinising the facts and situations, quashed the order as it was mala fide in
nature.

Abuse of jurisdiction may, inter alia, occur in some of the instances as under-

Malfeasance in office/improper purpose

Administrative power cannot be used for the purpose for which it is not allotted. In Attorney-General vs.
Fulham Corporation, the administration was entitled under the law to set up warehouses for the non-commercial
use of local occupants. The corporation then agreed to open a laundry on a commercial basis. The corporation
was held to have acted ultra vires the law.

A mistake apparent on the face of the record

A mistake is proclaimed to be obvious when one can establish such an inference just by analysing the record
without having to rely upon any other information.

In Syed Yakoob vs. K.S. Radhakrishnan (1963), the Hon’ble Supreme Court stated that there was a seemingly
obvious legal mistake on the face of the record where the outcome of the law recorded by an inferior tribunal is
as follows:

1. Is founded on a blatant misinterpretation of the appropriate statutory provisions,

2. Is in ignorance of it,

3. Is in disregard of it,

4. Is particularly premised on rationales that are wrong in law.

Consideration of extraneous material

In exercising power, the person in authority or the authorities must pay heed to all the appropriate circumstances
and dismiss insignificant circumstances.
In R vs. Somerset County Council, ex p Fewings (1955), the local authority decided to put a ban on stag hunting
on the property inhabited by the council and assigned it for recreational purposes. The Court of Appeal accepted
that, in some situations, there could be a rightful ban on stag hunting. In this case, animal welfare and social
considerations were relevant to take into account.

Mala fide management of power

When a decision taken by the decision-maker is taken dishonestly with a certain ulterior motive in his/her mind,
such a person may be said to have acted in bad faith.

In R vs. Derbyshire County Council, ex p Times Supplemets (1991), the local education authorities were under
a task to call the attention of qualified persons to fill the vacancies of a certain post(s). The articles published in
that newspaper (The Times) were read by a large number of potential applicants, but despite being aware of this
fact, the Council decided to halt advertising such vacancies in the paper, and thus, the papers were sought for
judicial review. The Derbyshire County Council reached a verdict that the educational council had taken such a
decision not on the basis of educational grounds but motivated by a malicious desire for retaliation; and thus, the
educational council has acted in bad faith, i.e., with mala fide intentions.

Fettering discretion

An authority may act ultra vires, i.e., beyond its capacity in times when a certain power to, say, adopt a policy,
is exercised without effectively giving it a thorough thought about it, which means it does not actually exercise
its discretion at all.

The same was held in the case of H Lavender & Sons vs. Minister of Housing & Local Government
(1970), wherein the local planning authority denied permission to Lavender to take extra sand and gravel from a
high-grade agricultural land. Aggrieved by the decision, an appeal was made to the Minister of Housing and
Local Government, but the appeal was dismissed as the Minister of Housing and Local Government was
convinced to do so by the Minister of Agriculture, stating that such land must be conserved for the purpose of
agriculture. This decision was set aside by the Court as the Minister, even after having the capacity to object,
reached a decision based solely on the opinions of another Minister. Here, the Minister of Housing and Local
Government did not have an open mind on Lavender’s appeal, and thus, fettered his discretion.

Failure to exercise jurisdiction

If any administrative authority is entrusted with power by law (even though discretionary), the person(s) in
power or the authority must implement it in one way or the other. A failure to exercise discretion may
arise, inter alia, in the following five circumstances, namely:

1. Unauthorised delegation,

2. Self-imposed fritters on discretion,

3. Acting under the dictates of a superior,

4. Non-application of mind,

5. Power coupled with duty.

Irrationality (Wednesbury test)

The principle of irrationality as a ground for judicial review was brought into existence by the Associated
Provincial Picture House Ltd. vs. Wednesbury Corporation (1948).

A decision of the administrative authority shall be considered irrational in matters when-

1. It does not have the authority of a law.

2. It is not based on evidence.

3. It is based on a consideration that is irrelevant and extraneous.

4. The decision of the authorities is so whimsical, twisted, arbitrary, absurd and unfair that no rational
person can reach a conclusion which has been reached by the authorities.

5. It is so irrational that it may be done in bad faith or maliciously.

Procedural impropriety

Procedural impropriety needs a ‘fair procedure’ to be followed in every administrative action. The fair
procedure would include

Rule against bias

It means no person should be a judge in their own cause (nemo judex in causa sua).

Rule of fair hearing

The rule of fair hearing states that no person should be condemned unheard (audi alteram partum).

Moreover, procedural impropriety also comprises the failure to observe regulations laid down in statutes along
with the failure to observe the basic common rules of natural justice, as stated above.

In the classic case of Ridge vs. Baldwin (1963), there is a revelation of judicial insistence on the fairness of the
procedure notwithstanding the kind of authority deciding a question. The Chief Constable of Brington, Mr.
Ridge, was dismissed from his duty following charges of conspiracy to pose a hindrance in the path of justice.
In spite of the fact that the allegations imposed upon Ridge were proven false, the judge made comments which
were critical of Ridge’s conduct. Thereupon, Ridge was dismissed from the force. He was not even invited to
attend the meeting wherein the conclusion to remove him from work was reached, even though he was given the
chance to appear before the Committee which inferred the previous decision. Ridge then made an appeal to the
Home Secretary, which was dismissed. Ridge then sought a declaration on the grounds that the rules of natural
justice were violated and that the Home Secretary went beyond his powers, i.e., ultra vires, while dismissing the
appeal. This case law is of significant importance as it pinpoints the linkage between the right of an individual to
be heard and the right to know the charges brought against the individual.
Proportionality

Proportionality means that the administrative authority must not be more drastic than it ought to be to seek the
desired outcome. Proportionality is sometimes explained by the expression ‘taking a sledgehammer to crack a
nut’. This doctrine endeavours to balance means with ends. Proportionality shares space with ‘reasonable
restrictions’.

In Chairman, All India Railway Board vs. Shyam Kumar and Ors. (2010), the Apex Court had defined the
proportionality test as the “least injurious means” or the “minimal impairment test” for protecting the
fundamental rights of citizens and guaranteeing a fair equilibrium between the individual rights and interests of
the public.

While reviewing the action of an administration on the doctrine of proportionality, the court generally considers
the following points:

1. Whether the relative merits of varied objectives or interests are properly evaluated and balanced in
a just manner?

2. Whether the actions under consideration were, in the situations, extremely restrictive or inflicted a
needless burden?
In Sardar Singh vs. Union of India (1991), an Army Jawan who was serving in the Indian Army was granted
leave. While proceeding to his hometown, he purchased 11 bottles of sealed rum and one bottle of brandy from
the army canteen, even though he was authorised to carry only 4 bottles. In the Court Martial Proceedings
initiated against him on those grounds, he was sentenced to undergo rigorous imprisonment for 3 months and
was dismissed from his service. The Supreme Court withheld the award of punishment granted to the appellant.
It further held that the action taken against the appellant was arbitrary and the penalty was severe.

The doctrine of proportionality is an important principle as it authorizes the courts to check the possible abuse of
discretionary power by the executive. In this doctrine, the court has to ascertain whether the action taken was
seriously needed as well as whether it was within the purview of courses of action that could otherwise be
interpreted.

Types of judicial review

As famously classified by Justice Syed Shah Mohamed Quadri, there are three major categories of judicial
review. They are as follows:

Reviews of legislative actions

This type of judicial review insinuates that the laws enacted by the legislature are in accordance with the laws
laid out in the Constitution. This has been a topic of discussion in numerous Supreme Court cases, of which the
following are the most noteworthy:

Shankari Prasad case

In Shankari Prasad vs. Union of India (1951) , a challenge was made to the First Amendment Act of 1951 on the
grounds that the ‘Right to Property’ was restricted. The Supreme Court denied such an argument and stated that
this could not be executed since the fundamental rights under Article 13 cannot be curtailed.
Sajjan Singh case

In Sajjan Singh vs. State of Rajasthan (1965), the existence of the Constitution under the 17th Amendment
Act of 1964 was in question. The Court eradicated the position in the Shankar Prasad case (discussed above)
and held that the constitutional amendments made under Article 368 are not within the ambit of judicial review
by the courts.

Golakh Nath case

In I. C. Golaknath & Ors vs. State Of Punjab & Anrs. (1967), there was a challenge made to three constitutional
amendments, namely- the first (1951), fourth (1955) and seventeenth (1964). The Hon’ble Supreme Court
asserted that Parliament has no authority under Article 368 to change the Constitution or to take away or restrict
fundamental rights.

Keshavananda Bharati case

In Keshavananda Bharti vs. State of Kerala (1973), a challenge was made to the 24th (1971) and 25th (1971)
Constitutional Amendments. A 13-bench judge was formed to attend the case, and with a 7 : 6 ratio, the Court
deduced that:

1. Article 368 of the Constitution provides the President with the power to bring about changes in the
Constitution.

2. Ordinary laws and constitutional amendments are not the same thing.

3. The core structure of the Constitution cannot be toppled with or amended by the Parliament.

Indira Gandhi case

In Indira Nehru Gandhi vs. Shri Raj Narain & Anr (1975), the then Prime Minister of India- Indira Gandhi was
held guilty of electoral malpractices by the Supreme Court.

Minerva Mills case

In Minerva Mills Ltd. vs. Union of India (1980), clauses (4) and (5) of Article 368, which were inserted by
the 42nd Amendment (1976), were struck down by the Apex Court on the grounds that these clauses destroyed
the basic structure of the Constitution.

Review of administrative actions

This is yet another mode to achieve constitutional discipline over the administrative agencies while exercising
their authority. A point must be noted that the judicial review of administrative actions of the Union of India as
well as the state governments and their officials comes under the ambit of the meaning of state.

Review of judicial decisions

This type of review is implemented to rectify or revamp amendments in previous findings or pronouncements
by the judiciary itself. This sort of review was evident in the following cases, inter alia:
Bank Nationalisation case

In Rustom Cavasjee Cooper vs. Union of India (1970), popularly known as the Bank Nationalisation Case, the
Supreme Court ruled that the Constitution assures the right to compensation, i.e., to an identical sum of money
for property that was acquired by compulsion.

Allied principles of judicial review

Principle of comity

As per the principle of comity, all the state authorities should support the functions of each other that are
important to enable authorities to perform their duties in a responsible way as per the rules and values of the
Constitution.

Principle of subsidiarity

By virtue of the principle of subsidiarity, public functions and powers should be applied at a level where they
can be undertaken properly and in a responsible way. For instance, political questions can be better determined
by the political authorities, policy matters can be better established by the legislative branch, whereas judicial
matters can be regulated in a finer way by the judicial branch.

Principle of contextually

In the principle of contextually, the law needs to take into consideration the context in which it is to be applied.
Such action is performed for verifying that the role of law attains its duty as an indicator of social engineering in
society.

Principle of proportionality

On account of this principle, the courts exert their power of judicial review to determine if there is a harmony
between the limitation on the right and the lawful end sought to be accomplished. As a part of this principle,
there are three measures applied by the court, they are-

Examining the means

The courts scrutinise the means adopted by the administrative authority. Thus, it inspects whether the ways
adopted by the administrative authorities are within the purview of their power, the least onerous, and
reasonably connected to the end.

Examining the end

Following the above procedure, the court then delves into the ends, in terms of whether they are legalised, and
within the capacity of the officials.

Examining the balance between means and end

Finally, the courts consider whether there is an equilibrium between the means and the end.
Constitutional provisions for judicial review

Articles Provisions
Article 13 Declares that laws that are unstable with or in derogation of Fundamental Rights shall be null
and void.

Article 32 Ensures the right to move the Supreme Court for the enforcement of fundamental rights and
entrusts the Apex Court with the power to issue directions or orders, or writs.

Article Provides for the original jurisdiction of the Apex Court in conflicts related to centre-state and
131 inter-state.

Article Provides for the appellate jurisdiction of the Supreme Court in constitutional cases.
132
Article Provides for the appellate jurisdiction of the Supreme Court in civil cases.
133
Article Provides for the appellate jurisdiction of the Supreme Court in criminal cases.
134
Article Deals with the certificate for an appeal to the Supreme Court from the high courts.
134-A
Article Authorises the Apex Court to exercise the jurisdiction and powers of the federal court under
135 any pre-constitution law.

Article Empowers the Apex Court to bestow special leave to appeal from any court or tribunal (except
136 military tribunals and court-martial).

Article Provides an authority to the President to seek the opinion of the Apex Court on any question of
143 law or fact and on any pre-constitutional legal matters.
Article Certifies the high courts with the power of judicial review and to issue directions or orders or
226 writs for the enforcement of fundamental rights or other objectives.
Article Entrusts the high courts with the authority of superintendence over all courts within their
227 respective territorial jurisdiction (except military courts and tribunals).
Article Deals with the territorial extent set by Parliament and the Legislature of the states.
245
Article Discusses the subject matter upon which laws can be made by Parliament and by the
246 Legislatures of States (i.e., the Union List, State List, and Concurrent List).
Article Deduces the hegemony of the central laws in situations where there is a dispute between the central and state law
 251 and Ar central law shall prevail over the state law, and the state law will be considered void.
ticle 254

Article Deals with the continuance in force of the pre-constitutional laws.

372

Procedure for judicial review in India

In India, judicial review is headed by the principle of ‘Procedure established by law’ as stated under Article 21
of the Constitution of India. If the law passes the test of constitutionality, it can be said to be legislation.
Conversely, the court has the power to declare the law null and void.

Limitations of judicial review

There are certain limitations on the exercise of power when it comes to judicial review by the high courts and
the Apex Court. In fact, when the judiciary oversteps its boundary and intrudes into matters that are authorised
by the executive, it is termed judicial activism; whereas, when power is exploited further, it can lead to judicial
overreach. Below are some of the limitations of judicial review:

General limitations

Restricts the functioning of the government

The scope of judicial review is limited, both in terms of availability and function. Here, the role of the court is to
perform a review on the method through which an outcome was deduced so as to determine whether such a
finding is defective and must be rescinded, instead of re-making the ruling in question or investigating the
merits of the decision deduced. In short, it is only allowable to the degree of determining whether the method of
reaching the inference was properly adhered to or not. It is not a decision in itself.

Violation of limits set by the Constitution

When it overrides any previously established law, it violates the limits of power put forth by the Constitution.
Here, the legislative powers that are exercised by the Constitution are said to be aired.

Concept of separation of power not observed

The concept of separation of functions is followed rather than that of separation of power. Additionally, the
concept of separation of powers is not strictly adhered to. Although, a system of checks and balances has been
introduced, thus entrusting the judiciary with the power to overturn any unconstitutional laws passed by the
legislature.

Sets a precedent

The judicial opinions of a judge once taken in a particular case would serve as the basis for deciding another
case, thus acting as a precedent.
Selfish motives and influences

Judicial review can prove to be detrimental to the local public as there are chances of the judgment being
influenced by personal or selfish motives. This can lead to causing damage to the public at large.

Frequent interference by the court has a negative effect on the local public

Repeated court interventions can undermine the confidence of people in the integrity, quality, and efficiency of
the government.

Lack of the capability to overrule administrative decisions

The court lacks the ability to repudiate the decisions taken by the administrative authorities. If a review of an
administrative ruling is authorized, the decision of the court would be substituted, thus regarded to be a
shortcoming due to inadequate knowledge.

Judicial activism and judicial self-restraint

There is quite a discourse on whether there should be a line drawn between judicial activism and judicial self-
restraint.

Doctrine of Strict Necessity

The doctrine of strict necessity states that the court must rule on constitutional matters only if strict necessity
requires it to do so. Thus, constitutional questions will not be determined in a wider manner than required.

Constitutional limits and limitations on judicial review

The Hon’ble Supreme Court enjoys a privileged position that empowers it with the authority to review the
legislative enactments legislated by Parliament and the state legislature. This power empowers the court with a
powerful means for judicial review. There are several provisions in the Constitution of India (as discussed
above) that provide for judicial review. The court has the duty to determine the unconstitutionality (if any) of the
law enacted by the legislature and to rightly comprehend the provisions and objectives of the Constitution.

In L. Chandra Kumar vs. Union Of India And Others (1997), a question was raised as to ‘Whether the exclusion
of the jurisdiction of the high court through Article 323 A (2)(d) and 323 (b) was in opposition to the doctrine
of judicial review, which basically was a primary feature of the Indian Constitution?’ The Court, while arriving
at a decision, took several references like the Administrative Tribunals Act, along with the Sampat Kumar
Judgement and the debates of the Constitutional Assembly. The Court, after carefully scrutinizing each and
every event, reckoned that judicial review is indeed a basic feature of the Constitution of India. Moreover, the
Court also considered the opinions of Dr. B. R. Ambedkar, who was the Chairman of the Drafting Committee of
the Constitution, on Article 25 (present Article 32), where he asserted that this Article is the very soul of the
Indian Constitution. Further, the seven-judge Constitutional Bench also stated that “the power of judicial review
over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of
the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure.”
Implied limitations on the exercise of the power of judicial review

Locus Standi

Considering the principle of ‘locus standi’, a petition under Article 32 of the Constitution can only be filed by
the individual(s) whose fundamental or legal rights have been violated, however, relaxation has been given by
the courts via the formation of the concept of Public Interest Litigation (PIL). Thus, if a decision which is
contemplated to be patently bad is challenged, the courts ought not to protest in evaluating the act on the
grounds of locus standi.

Res Judicata

As per the principle of res judicata, there should be finality to binding verdicts of the court of competent
jurisdiction and no party should be irked with the same litigation a second time. Thus, if a petition has been filed
in a court that gets dismissed, the same petition cannot be filed in the same court on the exact foundation.

Unreasonable delay

The remedies granted under Articles 32 and 226 of the Constitution must be sought within a reasonable time
unless the reason for the delay is persuasive and acceptable. Due to this limitation, the court will decline to
exercise its jurisdiction in matters of parties who have come to seek justice after a reasonable delay and are
guilty of laches.

Regardless, a point must be noted that there is no fixed period for laches, thus, every case will be decided based
on the facts and contentions of the parties to the case.

Exhaustion of alternative remedies

This limitation is not strictly imposed, however, as stated in the case of Y. Theclamma vs. UOI (1987), the
Supreme Court dictates that all the possible remedies must be sought by the petitioners before resorting to
Article 32. The reason behind such a limitation is that the writ jurisdiction is not meant to dodge statutory
procedures but only be used as an extraordinary remedy in situations where all other remedies are ill-suited.

Exclusion of judicial review

Meaning of exclusion of judicial review

Exclusion of judicial review refers to those circumstances wherein the powers of the high courts and the
Supreme Court to exercise writs are excluded. It can be said to be the restrictions/limitations imposed on the
power of the courts to review the actions of a public body (including the executive and the legislature).

How is the exclusion of judicial review carried out?

The exclusion of judicial review is carried out by Article 74(2) of the Constitution of India, and then there is the
ouster clause. The ouster clause has provisions that do not provide for appeals or revision. It makes the
judgement or act of the authority to be final and binding. This clause also avers that once an order is passed, it
may not be called upon for questioning in any court. Thus, it may exclude the jurisdiction of the court entirely.
Indian scenario on the exclusion of judicial review

The position of India on matters of judicial exclusion is quite similar to that of the United States. There is a
charter of fundamental rights guaranteed under the Constitution in written format, and such rights can be
reduced by the theory of administrative finality.

In India, all three organs of the state, i.e., the legislature, the executive, and the judiciary, obtain power from the
written Constitution, and the organs must act within the limitations of such powers.

Constitution of India (COI) and the exclusion of judicial review

The judiciary has been allotted the task of ascertaining what powers are conferred on which branch of the
government, thus being the interpreter of the Constitution. It is also presented with the power of judicial review
under Articles 32 and 226, which is not only an important part of the Constitution but also its basic structure, as
held in the case of SP Sampath Kumar vs. UOI (1987) by Justice Bhagwati, relying on the Minerva Mills case.

A note must be taken that despite the written Constitution, the fundamental rights (Articles 12 to 35) and the
constitutional remedies (Articles 32, 226, 227, and 136), the legislature still has the propensity to exclude
judicial review in certain fields, namely:

 Express or implied exclusion,

 Total or partial exclusion,

 Conditional or qualified exclusion, or

 Unconditional or unqualified exclusion.

Provisions of the Constitution excluding judicial review

Article 53

Under Article 53 of the Constitution, the executive power of the Union is vested in the President.

Article 72

Under Article 72 of the Constitution, the President shall have the power to grant pardons or suspend
punishments and such a power cannot be truncated by any court.

Article 74 (1) and (2)

Under Articles 74(1) and (2), there shall be a Council of Ministers at the head to help and educate the President,
and the President shall work in consonance with such advice. However, the question of whether any and if so
what, advice was given to the President by the Ministers shall not be investigated by any court.

Article 77

Under Article 77, the conduct of any business of the government shall not be a subject of suspicion.
Article 77 and 78

Under Articles 77 and 78, there is a prohibition of judicial review to give ample freedom for the exercise of
executive power.

Article 80

Under Article 80, the composition of the Council of States is exclusively left to the discretion of the President.

Article 103

Under Article 103, on the grounds of Article 102, the decision on questions as to disqualifications of members
shall be vested in the President and such rulings shall be absolute.

Article 161

Under Article 161, the power of the Governor to grant pardons, suspend punishments, etc., cannot be truncated
by any court.

Article 361

Under Article 361, the President, Governors, and Rajpramukhs are excused from legal proceedings in a court of
law with respect to the acts performed during the term of office.

Further, the exercise of the power of the President or the Governor cannot be subjected to judicial review based
on merits, as held in the case of Swaran Singh vs. State of UP (1998).

Moreover, the courts cannot issue any guidelines in matters of such interests as held in the case of Maru Ram vs.
UOI (1981).

Besides, the court cannot ask the President or the Governor to list reasons for backing the order passed by them
as stated in the case of State of Punjab vs. Joginder Singh (1990).

Exceptions for the exclusion of judicial review

The power of judicial review will be exercised in cases where the exercise of power is-

 Arbitrary,

 Discriminatory,

 Mala fide, or

 When material facts were not brought to the notice of the President or the Governor.
In such cases, the action can be set aside and instructions can be issued to pass a new ruling in compliance with
the law.

Ouster clauses
An ouster clause can be defined as an effort of the legislature to preclude the actions or rulings of any public
authority from being questioned before the courts. Such clauses are formed in order to signal to the decision-
makers that they may perform without any fear of intrusion from the court. There are two main types of ouster
clauses, which are discussed below.

Types of ouster clause

Partial ouster or time limit clause

Unlike the total ouster clause, which eliminates judicial review completely, a partial ouster or time limit clause
provides a certain time period, after which no remedy shall be attained. These types of clauses are generally
quite efficacious unless the public authority has acted with mala fide intent.

The partial exclusion of the judiciary was given consent in the case of Sampath Kumar vs. UOI. In this case, it
was held that the decision of the administrative tribunal can be excluded from judicial review by the high court
if the tribunal constitutes a ‘judicial element’. In order to completely preclude judicial review, an appeal
procedure has to be established, but this is not very much appreciated in the Indian continent as it is believed
that judicial review cannot be barred completely even if there were other remedies in cases where the tribunals
used powers that were ultra vires.

Total ouster or finality clause

Total or finality clause means the decision by any agency ‘shall be final’. In simple words, it means the decision
of the judge or tribunal is final and cannot be challenged by any court.

In the case of Shri Kihota Hollohon vs. Mr. Zachilhu and Others (1992), a reference was made to a statement by
Professor Wade that said “Finality is a good thing, but justice is better”. He also made an observation that many
statutes render that some decisions are “final” and that these provisions act as a bar to any appeal, but such
provisions do not hamper the operation of judicial review as the courts forbid them to act in such a way. Thus,
the normal effect of the finality clause is to not give rise to any further appeals.

Further, in the case of Union of India and Anr. vs. Tulsiram Patel and Ors. (1985), the Hon’ble Supreme Court
was dealing with Article 311(3) of the Constitution, which attaches finality to the order of the disciplinary
authority regarding whether it was reasonably practicable to hold an inquiry or not. The Court made an
observation that the ‘finality’ clause did not preclude jurisdiction, be that as it may, but it suggested that the
jurisdiction is bounded by certain grades.

The legal issue associated with the ouster clause

The main legal issue with the ouster clause is ‘whether it is truly feasible to eliminate the jurisdiction of the
courts by the use of carefully drafted laws?’

A professor in Singapore by the name of Thio Li-ann has observed that “courts generally loathe ouster clauses
as these contradict the rule of law whereby judges finally declare the legal limits of power and also as the
individual’s ultimate recourse to the law is denied. Hence, courts try to construe these strictly to minimise their
impact. In so doing, they may be going against the grain of parliamentary will.”
A note must be taken that the ouster clause does not effectively debar judicial review of errors of law that have
an impact on the jurisdiction of the authority in the process of making decisions. In the case of Regina vs.
Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application: CA 25 Feb (1957), Lord Alfred Denning
stated that he finds it very “well settled that the remedy by certiorari is never to be taken away by any statute
except by the most clear and explicit words. The word ‘final’ is not enough.” And in Anisminic Ltd. vs. Foreign
Compensation Commission (1968), it was stated that this type of clause is for making the “decision final on the
facts, but not final on the law. Notwithstanding that the decision is by a statute made ‘final,’ certiorari can still
issue for excess of jurisdiction or for error of law on the face of the record.”

Thus, it can be deduced from the above cases that judicial review cannot be eliminated by the courts in cases
where there was an excess of jurisdiction or if there was an error of law in attaining an inference/judgement.

Judicial self-restraint

What is judicial restraint or judicial self-restraint

Judicial restraint, also known as judicial self-restraint, is a theory of judicial interpretation that encourages
judges to limit the exercise of the power vested in them. In simple words, the courts must render the law and not
intrude in the policy-making process. The judges, too, should make an attempt to decide cases on the grounds
of-

 The primary intent of the writers of the Constitution.

 The precedents, i.e., the past verdicts in previous cases.

 Moreover, the policy-making process must be left to others and should not be intervened in by the
court.
In judicial restraint, the courts ‘restrain’ themselves from implementing new policies at their discretion.

The necessity of judicial restraint

Judicial restraint is necessary due to the following reasons:

 Judicial restraint aids in maintaining a balance between the three branches of the government, that
is-

1. The executive,

2. The judiciary, and

3. The legislature.

 The laws established by the government in the legislature are sustained.

 It shows earnest respect for the separation of problems from the government.
  It allows the legislature and the executive to comply with their obligations and job responsibilities
thereof without reaching into their area of work.

 By leaving the process of policy-making to the policymakers, judicial restraint marks respect for
the democratic form of government.

Landmark judgments on judicial restraint

State of Rajasthan vs. Union of India (1977)

In this case, the Court rejected a petition on the basis that it had the involvement of a ‘political question’. Being
involved would mean moving into the political domain, and thus, the Court would not go into the matter.

S. R. Bommai vs. Union of India (1994)

In this famous case, the judges opined that in specific circumstances, political elements are predominant and
there is no possibility of judicial review. The exercise of power, as stated under Article 356 of the Constitution,
was a political issue and therefore there was no need for judicial intervention. The Court asserted that it is
challenging to develop norms that are judicially manageable for analysing political decisions, and if the courts
intervene, then they would be entering into the political domain and thus impugning political wisdom, which
they must stay away from at all costs.

Almitra H. Patel vs. Union of India (2000)

In this case, the Court, on the issue of whether directions should be issued to the Municipal Corporation
pertaining to making Delhi neat and clean, expressed that it was not for the Supreme Court to instruct them as to
how to execute their most basic tasks. Thus, the Court can only instruct the municipal authorities to perform
functions prescribed under law.

Current scenario of judicial review in India

Not long ago, the Supreme Court of India denied agreeing to the Central Vista project as a unique case needing
‘heightened’ judicial review. The Court stated that the government had the discretion to construct policies and
have an error in it thereof as long as the Constitutional guidelines are being adhered to.

With the elimination of the locus standi principle, suo moto cases and Public Interest Litigations (PILs) have
granted the judiciary the power to meddle in matters relating to the well-being of the general public even when
the offended party did not raise any objections.

The way forward

Judges, especially in a country like India, have potent judicial powers in their hands. Most importantly, they
have the power of judicial review. This is why it is crucial for the judiciary to not only avert abuse and misuse of
power but also to cease exploitation and unjust activities.

Furthermore, there should be a clear deliberation on judicial activism and the proper use of PILs, in order to
make sure that such tools are not used for political motives. The judiciary needs to scrutinise why a particular
writ or PIL was filed in cases where a constitutional remedy is sought. The CAA, or the abrogation of Article
370, was opposed in the Hon’ble Supreme Court for gaining a political agenda. This is why when such cases
reach the judiciary for review, they should be carefully scrutinised as to whether there is an ulterior motive or if
it is against the betterment of the common people.

Moreover, many a time, NGOs are puppets of political parties or of those who are backed up by international
countries or communities wishing nothing but ill for the sovereignty of the country, thus, it is high time the
courts look through the transparent glass doors and carefully examine the motives of parties seeking such
remedies.

Another polemic issue on the interpretation of the Constitution occurred when the constitutional power to
appoint the Chief Justice of India (CJI) was taken away from the President by the Hon’ble Supreme Court. Such
acts must undergo careful judicial scrutiny.

Conclusion

The conclusion of a judicial review depends on the specific case and the legal issues involved. Judicial review
refers to the process by which a court reviews the lawfulness of actions or decisions made by government bodies
or public officials. It is an essential aspect of the separation of powers and serves as a check on the exercise of
governmental power.

In general, the conclusion of a judicial review can result in several outcomes:

Upholding the decision: The court may find that the actions or decisions being reviewed are lawful and in
accordance with the applicable laws and regulations. In such cases, the decision under review will stand, and the
court will not interfere with the decision-making authority.

Striking down the decision: The court may determine that the actions or decisions being reviewed are
unlawful, unconstitutional, or in violation of the legal principles. In such instances, the court can declare the
decision null and void, effectively overturning it.

Remanding the decision: In some cases, the court may remand the decision back to the relevant authority for
reconsideration or further action. This may occur if the court finds procedural errors or other deficiencies in the
decision-making process.

Providing guidance or clarification: Judicial review can also lead to the court providing guidance or
clarification on the interpretation of laws or legal principles. This can help establish precedents for future cases
and contribute to the development of legal principles.

It is important to note that the outcome of a judicial review is specific to the case at hand and does not establish
a blanket conclusion for all judicial reviews. Each case is evaluated based on its individual merits, the applicable
laws, and the arguments presented by the parties involved.
Reference

Constitution of India (Bare act)

Article 13, 32,131-136, 143, 226, 145, 246, 251, 254 and 372.

AK Roy v. Union of India (1982) 1 SCC 271

T. Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198

Article 212

Article 255

Mangalore Ganesh Beedi Works v. State of Mysore AIR 1963 SC 589

Shankari Prasad V. Union of India;

Sajjan Singh V. State of Rajasthan;

I.C. Golaknath V. State of Punjab;

Kesavananda Bharti V. State of Kerala;

I.R Coelho V. State of Tamil Nadu.

Rafiq Khan vs. State of U.P. (1954)

County Council vs. Attorney General (1902) AC 165

Pratap Singh vs. State of Punjab, AIR 1964, SC 72

Syed Yakoob vs. K.S. Radhakrishnan (1963)

R vs. Somerset County Council, ex p Fewings (1955)

R vs. Derbyshire County Council, ex p Times Supplemets (1991)

H Lavender & Sons vs. Minister of Housing & Local Government (1970)

State of Rajasthan vs. Union of India (1977)

S. R. Bommai vs. Union of India (1994)

Almitra H. Patel vs. Union of India (2000)