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TITLE OF THE DISSERTATION

Judicial Review: A Comparative Study of the Indian and the Australian Constitutions

By

Name of the Student: B. Milinda

Roll No.2018017

5 Year Integrated B.A. LL.B. (Hons.) Course

Title of the Seminar Paper

Comparative Constitution Law

Under the supervision of

Name of the Guide: Dr. Durga prasad

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM, VISAKHAPATNAM-531035
ANDHRA PRADESH, INDIA

Date of Submission:

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CERTIFICATE

This is to certify that the dissertation entitled Judicial Review: A Comparative Study of the
Indian and the Australian Constitutions for the Seminar Paper Comparative Constitution
law to Damodaram Sanjivayya National Law University; Visakhapatnam is a record of original
work done by Ms. B. Milinda under my supervision and guidance to my satisfaction.

SIGNATURE OF THE GUIDE

Visakhapatnam
Date:

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LIST OF ABBREVIATIONS

Anr Another

AIR All India Reporter

ALJR Australian Law Journal Reports

Art Article

CLR Common Law Reporter

Co Company

Ors Others

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

Sec Section

U.S United States

UOI Union of India

V Versus

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VLR Victorian Law Reports

Vol Volume

WALR Western Australian Law Reports

WP Writ petition

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TABLE OF CASES

 A.K. Gopalan V State of Madras, AIR 1950 SC 27.

 Amar Nath V. Union of India ,2004
 Australia v Western Australia (1999) 195 CLR 392.
 Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29
 Bank of New South Wales v Commonwealth (1948) 76 CLR 1
 Barnard v National Dock Labour Board [1953] 2 QB 18
 Betts v Brady (1942) 316 US 455
 Bignell v Casino Control Authority (NSW) (2000) 48 NSWLR 462,480.
 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651,
672
 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
 Church of Scientology v Woodward (1982) 154 CLR 25, 70 (Brennan J)
 Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, 167
 Commonwealth v Tasmania (1983) 158 CLR 1 at 165.
 Commonwealth v WMC Resources Ltd (1998) 72 ALJR
 DC Wadhwa V. State of Bihar1987 AIR 579
 Emperor V. Burah, ILR, Calcutta, 63 (1877)
 Ex parte Brisbane Tramways Co Ltd (No 1) (Tramways Case No 1) (1914) 18 CLR 54.
 Ex parte Cocks (1968) 121 CLR 313, 321
 Ex Parte Henry Berry & Co (Australasia) Ltd [1955] VLR 156, 163–4
 Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 119.
 Ex Parte Metropolitan Milk Board (1939) 41 WALR 110, 116
 Fertilizer Corporation Kamagar Union v Union of India [1981] AIR (SC) 344
 Gould v Brown (1998) 72 ALJR 375.
 Hockey v Yelland (1984) 157 CLR 124, 128 (Gibbs CJ).
 Indira Gandhi V. Raj Narain, 1975 SCR (3) 333
 Indira Sawney V. Union of India, AIR, 1993 SC 477
 K. Roy v. Union of India, (1982) SCC 27

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TABLE OF CONTENTS

1. Introduction………………………………………………….8
 Research question
 Research objective
 Literature review
 Scope, Significance
2. Judicial review in India…………………………………….12
 Ordinances vis-a -vis Judicial Review
 Cases on Judicial Review in India
 Judicial activism the expansion of judicial review
3. Judicial review in Australia…………………………………….24
 Principle of legality
4. Common Law principle and comparative study.………………32
5. Suggestions…………………………………………………….45
6. Conclusion…………………………………………………….46
7. Bibliography…………………………………………………..48

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ABSTRACT

Judicial Review is a cycle under which chief or authoritative activities are liable to survey by the
legal executive. A court with expert for legal survey may refute laws, acts and legislative
activities that are inconsistent with a more significant position authority: a leader choice might be
discredited for being unlawful or a resolution might be negated for disregarding the particulars of
a constitution. Judicial Review is one of the balanced governances in the partition of forces: the
force of the legal executive to oversee the administrative and leader branches when the last
surpass their power. The principle fluctuates between wards, so the strategy and extent of legal
survey may contrast between and inside nations. Common law is known as the Anglo-American
Law. The assemblage of standard law, in light of legal choices and exemplified n reports of
chose cases, that has been controlled by the customary law courts of England since the Middle
Ages. From it has advanced the kind of general set of laws currently discovered likewise in the
United States and in the majority of the part conditions of the Commonwealth (once in the past
the British Commonwealth of Nations). In this sense customary law remains rather than the
overall set of laws got from common law, presently broad in mainland Europe and somewhere
else.

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SYNOPSIS

Introduction

The Judicial Review is conventionally considered to have kick-off with the attestation by the
John Marshall, 4th Chief Justice of the U.S.A. The Supreme Court of the United States had the
ability to nullify enactment sanctioned by Congress. There was, in any case, no express warrant
for Marshall's declaration of the force of legal survey in the genuine content of the Constitution
of the United States; its prosperity laid at last on the Supreme Court's own decision, in addition
to the shortfall of successful political test to it. The Chief Justice perceived the difficulty that the
case presented to the court. In the event that the court gave the writ of mandamus, Jefferson
could just disregard it, on the grounds that the court had no ability to authorize it. On the off
chance that, then again, the court wouldn't give the writ, doubtlessly the legal part of government
had withdrawn before the chief and that Marshall would not permit.
The arrangement he picked has appropriately been named a masterpiece. In one stroke, Marshall
figured out how to set up the force of the court as a definitive judge of the Constitution, to
chasten the Jefferson organization for its inability to submit to the law, and to try not to have the
court's position tested by the organization. Marshall's wonderful decision has been generally
hailed. Notwithstanding assaults on the legal executive dispatched by Jefferson and his
adherents, Marshall expected to offer a solid expression to keep up the situation with the
Supreme Court as the top of a same part of government. By affirming the ability to announce
demonstrations of Congress illegal (which the court would not exercise again for the greater part
a century), Marshall guaranteed for the court a central situation as translator of the Constitution.
Motivation behind why Judicial Review ought to be perceived with regards to both the
improvement of two particular overall sets of laws.
 (common law and precedent-based law) ; and
 two hypotheses of majority rule government (administrative matchless quality and
partition of forces)
is that a few nations with customary law frameworks don't have legal survey of essential
enactment. Despite the fact that a customary law framework is available in the United Kingdom,
the nation actually has a solid connection to the possibility of authoritative incomparability;
subsequently, decided in the United Kingdom don't have the ability to strike down essential
enactment.
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Notwithstanding, when the United Kingdom turned into an individual from the European Union
there was pressure between its inclination toward authoritative matchless quality and the EU's
overall set of laws, which explicitly gives the Court of Justice of the European Union the force of
Judicial Review.
The United Kingdom also gave Australia the idea of a written Constitution and judicial review of
federal and state laws, as well as executive branch acts. The 1901 Australian Constitution Act,
which, like the Canadian Constitution, is Australia's written constitution. The Act of 1867 was
initially a British imperial Parliament act.

Both statutes establish a separation of powers between the federal and state/provincial
governments, as well as a separation of judicial power from the merged parliamentary executive-
legislative bodies that they create. There is no Bill of Rights in Australia's Constitution although
Canada's Constitution includes the Charter of Rights and Freedoms. When the British Parliament
ultimately gave up its capacity to legislate in 1982 for the sake of Canada Queen Elizabeth II
continues to reign over both Canada and the United Kingdom. Despite the fact that she is
represented as head of state by Canadian and American diplomats, Australia, Governors General
were chosen by Australians.

Research question
 Whether Judicial review in Indian and Australian constitution are based on same common
law principles
 Whether Indian Judicial review has adopted any features from Australian constitution

Research objective
The Primary objective behind the present dissertation is to look into Australian constitutional
principles and further understand the distinction and similarities that are present in Judicial
review of Indian constitution.

Literature review
 Paul D. Evans & Jennan A. Ambikapathy, Judicial Review in Australia, 6 JUD.
REV. 188 (2001).

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Judicial review in Australia is a dynamic and volatile battlefield upon which government and the
judiciary wage war in the quest for balance between government efficacy and justice for
individual. The jurisprudential ingenuity of our judges lends a great depth to their judgments,
providing lively material for consideration in other countries where similar review issues may
yet emerge. The present article deals with Australian constitution principles.
 Garima Raisinghani, Tenet of Judicial Review in India, 24 Supremo Amicus [596]
(2021).
Judicial Review is a cycle under which chief or authoritative activities are liable to survey by the
legal executive. A court with expert for legal survey may refute laws, acts and legislative
activities that are inconsistent with a more significant position authority: a leader choice might be
discredited for being unlawful or a resolution might be negated for disregarding the particulars of
a constitution. The present article highlights these aspects of Judicial review in India
 Anthony E. Cassimatis, Judicial Attitudes to Judicial Review: A Comparative
Examination of Justifications Offered for Restricting the Scope of Judicial Review
in Australia, Canada and England, 34 MELB. U. L. REV. 1 (2010).
Legislative reform of judicial review in Canada and Australia has encountered unexpected
dificulties. Judicial attitudes appear to have been a factor in this. These attitudes, however defy
simple classification according to realist, functional or 'green light' critiques of judicial values.
The history of legislative reform in Ontario and Australia appears far more complex. Other
factors, particularly the precision (or otherwise) of the drafting of the legislative provisions,
appear far more significant. Experiences in both Ontario and Australia also point to the
continuing vitality of the traditional common law and equitable remedies. Judicial attitudes to
judicial review appear to be an important source of this continuing vitality.
 S. P. Sathe, Judicial Review in India: Limits and Policy, 35 OHIO St. L.J. 870
(1974).
The above account suggests that both the Supreme Court and Parliament claimed supremacy vis-
a-vis each other. Golak Nath amply illustrated that the Court cannot establish its supremacy
through legal logic alone. In Kesavananda the Court has once again attempted to do the same.
Both Parliament and the Supreme Court debated with great zeal the question of the sovereignty
of the people. Parliament claimed that it alone spoke on behalf of the people.
Research methodology

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The present dissertation adopts doctrinal method of research with explanatory mode.

Scope of the dissertation

The present dissertation is limited to Australian and Indian constitution.

Significance of the dissertation

The present project attains its significance based on the fact that Australia and Indian
jurisprudence owes its origin to common law.

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JUDICIAL REVIEW IN INDIA

The First Analysis of the Judicial Review in India1

Just Conditional Legislation has been approved by the Privy Council and in this way assigned
enactment isn't allowed according to its thinking. The organization of common and criminal
equity of a domain can be vested in the possession of those officials who were delegated by the
Lieutenant Governor now and again.

The Privy Council has expressed that it is smarter to take help from the subordinate office in
outlining the guidelines and guidelines that will be the piece of the law and giving another body
the fundamental administrative highlights that has simply given to the Legislature through the
Constitution. He additionally expressed about the fundamental administrative capacity that
remembered for deciding the enactment strategy.

Character of Judicial Review in the Constitution of India

The part of Judicial Review in Indian Constitution is to secure/give freedom and opportunity of
individuals. Some Indian masterminds have seen that the extent of Judicial Review in India is
exceptionally restricted, and the Indian Courts loath as wide ward as the courts in America.
American courts believed that due to the 'Fair treatment's statement they have more extensive
degree though in India the extent of Judicial Review is smaller. While legal survey occasion of
managerial activity has arisen straightforwardly from precedent-based law tenets, for example,
'proportionality', 'real assumption', 'sensibility' and standards of characteristic equity, the
Supreme Court of India and the different High Courts were enabled to run on the lawfulness of
authoritative just as regulatory activities to secure and uphold the essential rights ensured in Part
III of the Constitution.

Purview of Judicial Review

The extent of judicial review under the watchful eye of Indian courts has arisen in three
measurements

1. Initially, to set up reasonableness in managerial activity,

1
Emperor V. Burah, ILR, Calcutta, 63 (1877)

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2. Also, to secure the ensured sacred essential rights, and

3. Ultimately, to run on inquiries of authoritative ability between the middle and the states.

The force of the Supreme Court of India to authorize and carry out these basic rights is gotten
from Article 32 of the Constitution. It gives residents the option to straightforwardly move
toward the Supreme Court and High courts for looking for cures against the infringement of
these basic rights. The producers of the Constitution judicially consolidated in it the
arrangements of Judicial Review to keep up the equilibrium of federalism, to secure the principal
rights ensured to the residents and to bear the cost of a helpful weapon for correspondence,
freedom and opportunity.

Judicial Review as a Fragment of the Basic Structure of the Indian Constitution2

Kesavananda Bharati is a milestone case and the choice taken by the Supreme Court illustrated
the essential construction tenet of the Constitution. The choice which was given by the seat in
Kesavananda Bharati's case was remarkable and insightful. The judgment was of 700 pages
which incorporated an answer for both Parliament's entitlement to alter laws and resident's
entitlement to secure their Fundamental Rights.

S.M. Sikri, C.J referenced five fundamental highlights:

1. Matchless quality of the Constitution

2. Conservative and popularity-based type of Government.
3. Secular character of the Constitution.
4. Partition of forces between the council, the chief and the legal executive.
5. Federal character of the Constitution.3

The Supreme Court for this situation held that Constitution is preeminent. Also, if parliament
made any laws, so it ought to be as per necessity of the Constitution and it will be looked at by
the legal executive. It was held that none of the sections of the Preventive detainment act, IV of
1950 encroached the arrangements of Part III of the constitution excepting S.14, confining the

2
Keshavananda Bharti V. State of Kerala, (1973) 4 SCC 225
3
A.K. Gopalan V State of Madras, AIR 1950 SC 27

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revelation of the grounds of confinement. Section14 of the demonstration was proclaimed Ultra
Vires; in any case the assertion didn't influence the legitimacy of the go about in general. 4

The Supreme Court added another condition to the essential construction tenet, legal survey and
congruity between Fundamental Rights and Directive Principle of the State Policy. For this
situation, the Court likewise held that the Limited changing force of the Parliament is a piece of
the fundamental construction teaching.5

Through the 39th amendment, there was an addition of a condition that Prime Minister, Vice
President, Speaker is past the Scope of judicial review. The Court for this situation, while
articulating judgment on the fundamental design regulation held that piece was past the
Parliament correcting power and subsequently it was struck down. For this situation, the
Supreme Court embedded different justification execution of reservations like the rich half
limitation, and so forth.6

The Supreme Court embedded different justification for execution of reservations like the rich
layer, half limitation, and so forth Law and order was embedded in the fundamental design
teaching. solidarity and Integrity of the country, Federal Structure, Secularism, and Socialism
were embedded by the court through this case. 7 The Supreme Court, through this case, embedded
Preamble in the fundamental construction precept since Preamble goes about as a managing light
for the council to decipher the Constitution. Therefore, essential construction precept has a huge
spot in the Indian Constitution it restricts the force of the Parliament to outline laws that are
conflicting with the privileges of individuals.8

It was held that “Constitution is incomparable and is a perpetual rule that everyone must follow.
What's more, every part of government gets its force from Constitution. High Court is doled out
the fragile assignment of figuring out what is the force presented on each part of the public
authority.”9It is settled arrangement that the High courts are the established courts and expelling
its purview and barring its force of legal audit is against the teaching of the essential
4
Minerva Mills V. Union of India, AIR 1980 SC 1789
5
Indira Gandhi V. Raj Narain, 1975 SCR (3) 333
6
Indira Sawney V. Union of India, AIR, 1993 SC 477
7
S. R. Bommai V. Union of India, AIR 1994 SC 1918
8
The State of Rajasthan V. Union of India, INSC, 145, 1977
9
L. Chandhra Kumar V. Union of India, 1997 (2) SCR

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construction. In the event that another semi legal body is set up by the leader for quick equity of
certain issue to diminish the weight on the High Courts and Supreme Court then the choice ought
to be dependent upon legal audit as even the legal body's choice is exposed to legal survey.
Notwithstanding, it is set up by the energy of giving time-compelling and financially savvy
equity however nothing can be said about the nature of equity apportioned by it, so the choice by
the Supreme Court, for this situation, is exceptionally surprising thinking about the consecrated
Constitutional arrangements.

Impact Of Judicial Review Vis-Vis Balancing of Power:

The Constitution of India has numerous unique highlights that recognize it from different
constitutions of the world. It is the longest Constitution; it is thorough and nitty gritty since it
manages the perplexing and assorted circumstance that won (and still wins) at the hour of its
composition and appropriation after the British allowed autonomy to India. It additionally builds
up a bureaucratic parliamentary type of Government in which the parts of the chief, the law-
making body and the legal executive are plainly characterized and depicted.

The Constitution of India outlines a specific division of the three organs of India. The partition of
forces implies the dispersion of the Government's political, managerial and legal obligations. It
limits the danger of illegal government abundances since the execution, consistence and
execution of laws is should have been endorsed by every one of the three branches.

Lord Acton, the 'justice of history', has properly aphorized-"Force adulterated and supreme
Power will in general ruin totally". With regards to administration, it shows that total force gave
upon a solitary authority is slanted to yield assertion. The idea of detachment of force gives a
rampart against this defilement and involves the allocation of force and depiction of limits
between three unmistakable parts of the public authority, rather than packing power in a solitary
individual or gathering of people.

Being an old convention and not a lawful guideline, partition of forces has gone through
development to arrive at the state in which it exists today. Under the advanced view, the
administrative, the chief and the legal executive have been for the most part acknowledged to
establish these three wings of the Government and various forces, capacities and obligations are

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similarly and autonomously agreed to every one of them. The authoritative compares to the
creation of laws, rules and guidelines and their correction.

Subsequently, fundamentally, this precept endorses that the law-making body can't practice
leader or legal forces, the chief can't practice administrative or legal forces, and the legal
executive can't practice authoritative or leader powers. Diverse sacred frameworks grandstand
various varieties and types of this hypothesis, fit to their particular necessities. Subsequently, the
tenet isn't inflexible in nature and can be deftly shaped to find a way into the exceptional
circumstances of various states. Regardless, in the entirety of its numerous structures, the soul of
this hypothesis stays unblemished and is ordinarily shared by most current majority rules
systems - that all force ought not be given upon a solitary organization and ought to be
partitioned inside different foundations.

Judicial Review Dementing from the Separation of Powers

Most current overall sets of laws permit the courts to audit managerial demonstrations (singular
choices of a public body, like a choice to give an endowment or to pull out a home license). In
many frameworks, this additionally incorporates audit of auxiliary/designated enactment
(lawfully enforceable standards of general relevance embraced by regulatory bodies). There are
three expansive ways to deal with legal survey of the defendability of essential enactment i.e.,
laws passed straightforwardly by a chosen governing

A. No survey by any courts:

Some nations don't allow an audit of the legitimacy of essential enactment. In the United
Kingdom, hypothetically talking, resolutions can't be saved under the precept of parliamentary
power.

B. Review by broad courts:

In the United States, government and state courts (at all levels, both redrafting and preliminary)
can survey and pronounce opportune "defendability" of enactment by a cycle of legal
understanding that is applicable to any case appropriately inside their purview.

C. Review by particular courts:

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In 1920, Czechoslovakia received an arrangement of legal audit by a specific court, the 'Sacred
Court' (as imagined by Hans Kelson, a main law specialist of the time). This framework was
subsequently received by Austria and now imitated by various different nations India has
embraced this model vide its Constitutional courts to be specific High Courts and the Supreme
Court.

Key Legal Barometer Judicial Review in India

Judicial Review basically gives a bunch of lawful guidelines, upheld through writ petitions, to
empower individuals to challenge the legitimateness of choices made by open bodies/others
practicing public functions. Such lawful norms, as might be gathered from different legal points
of reference are typified beneath:

1) Public bodies must 'have lawful expert for their activities.' This might be gotten from
resolution, the Constitution or some other legitimate wellspring of law. Public bodies
should act inside the extent of that legitimate power.
2) Where a sculpture/the Constitution gives a public body an optional force, that force
should be utilized to additional the degree and object of the resolution/Constitution not
for an incidental reason. 'May' can be perused as 'will' in specific cases.
3) Public bodies should consider all lawfully significant contemplations and try not to
consider those that are superfluous.

Limitations and Exceptions

Following kinds of impediments merit investigation:

Restrictions in the actual Constitution - for instance:

1. Clause (2) of Articles 100 and 189 bar the ward of the courts to negate the procedures
of a House of the Legislature on determined procedural abnormalities. Be that as it
may, there would be no invulnerability if the procedures are held in disobedience of
the obligatory arrangements of the Constitution by practicing powers which the
council doesn't have under the Constitution

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2. Non-justiciable mandate standards: However, non-Justiciability of Directive

Principles has been weakened practically speaking by court choices which have
adequately authorized a portion of the order standards on the side of the key rights.10

Ordinances vis-a -vis Judicial Review11

Judicial Review of the president's fulfilment with respect to the need to give an Ordinance isn't
completely rejected. Preconditions of Article 123 can't be viewed as a simply political inquiry
and kept past judicial review- be that as it may, by all appearances case should be set up by
Petitioners as to non-presence of the conditions vital for issuance of the law before weight can be
projected on the President to set up those conditions.12

A mandate can't be addressed on grounds of thought process or non-use of brain or on grounds of

legitimacy, practicality and need, very much like the activity of authoritative forces can't be so
addressed.13At the point when the assertion of object of the Ordinance indicates that President is
fulfilled - at first sight case that President has legitimately practiced his authoritative force. 14

Where such is the situation, proclamation of the Ordinance may not be available to assault. Yet,
else, it would be a colorable exercise of force with respect to the Executive to proceed with an
Ordinance with considerably similar arrangements past the period restricted by the Constitution,
by embracing the procedure of repromulgation. It is settled law that an established authority can-
not do in a roundabout way what it isn't allowed to do straightforwardly. In the event that there is
a sacred arrangement hindering the protected authority from doing an Act, such arrangement
can't be permitted to be crushed by selection of any deception. That would be unmistakably an
extortion on the established arrangement.15

Enactment by statutes is certifiably not a customary wellspring of law-production; laws must be

proclaimed in crisis or excellent circumstances, and just while the council isn't in meeting.
Further, the Constitution necessitates those statutes should be mandatorily introduced before the

10
Maneka Gandhi V. Union of India, 1978 AIR 597
11
A. K. Roy V. Union of India, (1982) SCC 271
12
T. Venkata Reddy V. State of Andhra Pradesh, (1985) SCC 198
13
Amar Nath V. Union of India ,2004
14
DC Wadhwa V. State of Bihar1987 AIR 579
15
DC Wadhwa V. State of Bihar1987 AIR 579

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assembly. The rehashed re-declaration of a mandate is proof that the chief is attempting to
exceed its established limits with the statute, and the court is allowed to strike down any such
law.

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 honored by all courts of the land. There is no appeal against the
judgement of the Supreme Court.

In Shankari Prasad vs. Union of India16 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.

In Sajan Singh's case17, 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. 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).

16
AIR 1951 SC 458
17
1960 A.C. 167

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The historic case of Golak Nath vs. The state of Punjab 18was 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 Act 1951, the fourth Amendment Act 1955 and the seventeenth
Amendment Act. 1964 abridge the scope of Fundamental Rights 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 their in.

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.

In Minerva Mills case19 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,

18
AIR 1967 SC 1643
19
(1980) 3 SCC 625

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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 parts will Ipso facto destroy an essential element of the
basic structure of our constitution.

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.

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
Kesavananda Bharathi case, the Court noted that "involves tampering with the Constitution
judicial review of cases may involve 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 latter 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 dispute, which the court should be avoided. So, the
court cannot 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 cannot
review the President's subjective judgments, but the president may review the basis on which to

21
 22

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 powers judicial review and
supervision should be ultra vires the right balance.

The basic principles of judicial review of constitutional status:

In 1973, the Supreme Court in the landmark Kesavananda Bharathi v. State of Kerala20 case
presented the basic principles of judicial review. Legislature can amend 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 have 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 principle’s 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. 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, L. Chandra Kumar V Union of India21 case, the Constitutional Court
more clearly 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

20
AIR 1973 SC 1461
21
(1997) 3SCC261

22
 23

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 cannot 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.

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
22
judicial activism began to take 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 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 become India's new task of constitutional law.

JUDICIAL REVIEW IN AUSTRALIA

22
AIR 1978 SC 597

23
 24

In addition to the common law, s 75(v) of the Constitution provides for an ‘entrenched minimum
provision’ of judicial review.23 Section 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act)
extends the original jurisdiction of the High Court of Australia (High Court) to the Federal Court
of Australia (Federal Court).24 Section 39B(1A)(c) vests the Federal Court with jurisdiction over
‘any matter arising under any laws made by the Parliament, other than a matter in respect of
which a criminal prosecution is instituted or any other criminal matter’.

In 1977, the ADJR Act was introduced as part of wide-ranging reforms to federal administrative
law in Australia. 25The Act seeks to simplify, codify and, in some cases, expand common law
judicial review. It established: a single, simple procedure for review, which applies regardless of
the grounds argued, or the remedy sought; codified the grounds for review; and established a
right to reasons for a decision where a person has standing to seek review, with certain
exceptions. However, limitations imposed on the ADJR Act have affected its capacity to operate
as a simpler, more streamlined avenue for judicial review.26

This chapter discusses how access to the courts is protected from statutory encroachment; laws
which restrict access to the courts; and when laws that restrict access to the courts may be
justified. It is about judicial review, rather than merits review. 27 However, judicial review has

23
This is discussed further below. The ‘entrenched minimum provision’ of judicial review extends to State Supreme
Courts, and thus, the decisions of state administrative bodies: Kirk v Industrial Relations Commission (NSW) (2010)
239 CLR 531. Section 75(iii) of the Constitution also protects access to the courts. It states that the High Court shall
have original jurisdiction in any matter in which the Commonwealth, or a person suing or being sued on behalf of
the Commonwealth, is a party.
24
This jurisdiction is modified to exclude the justiciability of certain criminal justice process decisions before the
High Court.
25
In addition to introducing the Administrative Decisions (Judicial Review) Act 1977, the government established
the Administrative Appeals Tribunal as a general merits review body, introduced freedom of information legislation,
and established the Commonwealth Ombudsman: John McMillan, ‘Parliament and Administrative Law’ (Research
Paper 13 2000-01, 7 November 2000).
26
Decisions of the Governor-General, and findings and recommendations in official reports are excluded from
review under the ADJR Act. Reviews under the ADJR Act are only available for decisions made under an
enactment, thus, excluding challenges to delegated legislation, decisions made in exercise of executive or
pregorative power and contractual decisions. The courts have interpreted the term “decision” in the ADJR Act to
generally mean a ‘final, or operative and determinative’ decision. An intermediate step does not ordinarily constitute
a decision. Intermediate decisions were considered to be a decision in their own right if a statute made separate
provision for it, and it was substantive: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.
27
Merits review is concerned with a person or body—other than the primary decision maker—considering the facts,
law and policy underlying the original decision, and substituting a fresh decision where the new decision is correct
or preferable. By contrast, judicial review is concerned with the lawfulness of a decision, whether by reference to

24
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been characterised as ‘inevitably sporadic and peripheral. 28The availability of merits review has
been described as ‘in a way more important than judicial review because it can offer a complete
answer, not available through the courts, to a person affected by a decision’29

Protections from statutory encroachment

Australian Constitution

The Constitution has an ‘entrenched minimum provision of judicial review’ 30which cannot be
removed by statute, even where it may purport to do so. Section 75(v) of the Constitution
provides that the High Court shall have original jurisdiction in all matters ‘in which a writ of
mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’.
Gleeson CJ said that this provision ‘secures a basic element of the rule of law’: The jurisdiction
of the Court to require officers of the Commonwealth to act within the law cannot be taken away
by Parliament. Within the limits of its legislative capacity, which are themselves set by the
Constitution, Parliament may enact the law to which officers of the Commonwealth must
conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If
the law confers power or jurisdiction, prohibition may issue to prevent excess of power or
jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and
define, the duty, or the power, or the jurisdiction, and determine the content of the law to be
obeyed. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so
enacted.31

whether the decision maker had the power to make the decision, a legal error has occurred in making the decision or,
where necessary, whether the rules of procedural fairness were complied with. However, where the tribunal
conducting merits review makes a legal or procedural error, that decision may be subject to judicial review.
28
Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372, [471]–[472]; Plaintiff
S157/2002 v Commonwealth (2003) 211 CLR 476, [522]–[523].
29
Justice Robert French, ‘Administrative Law in Australia: Themes and Values’ in Matthew Groves and HP Lee
(eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007)
22. Justice Janine Pritchard, ‘The Rise and Rise of Merits Review: Implications for Judicial Review and for
Administrative Law’ (2015) 79 Australian Institute of Administrative Law Forum 14; Commonwealth, Report of the
Administrative Review Committee, Parliamentary Paper No 133 (1971) [58].
30
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [103].
31
This was extended to review by state Supreme Courts, and thus, in relation to decisions by State administrative
bodies in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531. The High Court has long held that
the original jurisdiction granted under s 75(v) of the Constitution is unalienable. Bank of New South Wales v
Commonwealth (1948) 76 CLR 1; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; R v
Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (No 1) (Tramways Case

25
 26

The High Court defined its entrenched minimum provision of judicial review in the following
terms: First, the jurisdiction of this Court to grant relief under s 75(v) of the Constitution cannot
be removed by or under a law made by the Parliament. Specifically, the jurisdiction to grant s
75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot
be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise
than in accordance with Ch III. The Parliament cannot confer a non-judicial body the power to
conclusively determine the limits of its own jurisdiction.32

What constitutes jurisdictional error is uncertain. It depends on the statutory context. 33Drawing
from the leading cases, Professors Mark Aronson and Matthew Groves list some examples of
instances of jurisdictional error:

 a mistaken assertion or denial of the existence of jurisdiction;

 a misapprehension or disregard of the nature or limits of the functions and powers of a
decision maker;
 entertaining issues or making the types of decisions or orders which are forbidden under
any circumstances (for example, a civil court trying a criminal charge);
 mistakes as to the existence of a jurisdictional fact or other requirement—that is, the
relevant Act treats the fact or requirement as a condition precedent to the validity of the
challenged decision.
 disregarding relevant considerations;
 taking into account irrelevant considerations;
 some, but not all errors of law;
 acting in bad faith;

No 1) (1914) 18 CLR 54. However, it is important to note that the government retains, in large part, the power to
define what constitutes jurisdictional error. A key example is the statutory removal of procedural fairness
obligations (discussed in Ch 14). No invalidity clauses are another example, as are provisions which provide that
there are no irrelevant considerations.
32
However, it is important to note that the government retains, in large part, the power to define what constitutes
jurisdictional error. A key example is the statutory removal of procedural fairness obligations (discussed in Ch 14).
No invalidity clauses are another example, as are provisions which provide that there are no irrelevant
considerations
33
What is jurisdictional error in one statutory context may not be so in another: Mark Aronson, ‘Jurisdictional Error
and Beyond’ in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge
University Press, 2014) 248, 250.

26
 27

 acting extremely unreasonably.34

Helen Robertson provides a useful survey of Federal Court cases that identified additional
examples of jurisdictional error. These include a failure to:

 ask the correct question;

 consider all elements of a claim;
 properly undertake the jurisdictional task of review;
 correctly address the prescribed criteria for a decision;
 afford procedural fairness.35

In Plaintiff S157, the High Court made it clear that where there is a jurisdictional error, a
privative clause is ineffective to oust judicial review. In light of this constitutional jurisdiction,
courts may construe privative clauses much more narrowly than the text of the provision
suggests, to the point that such clauses may sometimes be largely or even entirely deprived of
effect.36

A number of commentators have therefore expressed the view that such clauses are of little
value. Professor Mary Crock and Edward Santow state that jurisdictional error is ‘fatal to the
effectiveness of most privative clauses’.37 Aronson and Groves comment that courts ‘have long
responded to legislative attempts to limit or completely exclude the scope of judicial review of
administrative action with a mixture of incredulity, hostility, and thinly disguised disobedience’ 38

34
The High Court has said that ‘it is neither necessary, nor possible, to attempt to mark the metes and bounds of
jurisdictional error’: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531,573.
35
Helen Robertson, ‘Truth, Justice and the Australian Way—Plaintiff S157 of 2002 v Commonwealth’ (2003) 31
Federal Law Review 373, 390.
36
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Section 474 of the Migration Act 1958 (Cth) purports
to exclude challenging, appealing, reviewing, quashing or any calling into question a ‘privative clause decision’. It
also purports to exclude prohibition, mandamus, injunction, declaration or certiorari as a remedy in any court. In
Plaintiff S157/2002 the High Court unanimously rejected the literal interpretation, and held that the writs of
mandamus and prohibition were available for decisions involving jurisdictional error.
37
Mary Crock and Edward Santow, ‘Privative Clauses and the Limits of the Law’ in Matthew Groves and HP Lee
(eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007)
347.
38
Aronson and Groves, above n 15, 940.

27
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The courts have justified such interpretive approaches by reference to the assumption that
legislation should, as far as reasonably possible, be interpreted in a way that favours
constitutional validity. 39Additionally, a separate constitutional mechanism which protects access
to the courts is s 75(iii) of the Constitution. It vests original jurisdiction in the High Court in all
matters ‘in which the Commonwealth, or a person suing or being sued on behalf of the
Commonwealth, is a party’.

Principle of legality

40
The principle of legality provides some protection to judicial review. When interpreting a
statute, courts will presume that Parliament did not intend to restrict access to the courts, unless
this intention was made unambiguously clear. 41 For example, in Magrath v Goldsborough Mort
& Co Ltd, Dixon J said:

“The general rule is that statutes are not to be interpreted as depriving superior Courts of power
to prevent an unauthorized assumption of jurisdiction unless an intention to do so appears clearly
and unmistakably.”42

The usual mechanism for restricting access to the courts is a ‘privative clause’— ‘essentially a
legislative attempt to limit or exclude judicial intervention in a certain field’. 43 Some examples
include clauses that make orders, awards or other determinations final, clauses forbidding courts
from granting remedies traditionally used in judicial review, ‘no invalidity’ or ‘conclusive
evidence’ provisions, and clauses prescribing time limits.44Another, blunter technique is
stipulates that anything a body does shall have effect as if enacted by Parliament, and vests
exclusive jurisdiction in that body. However, privative clauses are read narrowly by the courts.

39
The long history of authority to this effect was noted in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR
476, [71] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). While this approach may lead the courts to interpret
privative clauses in a manner that gives them very limited scope, alternative approaches may be more likely to
require courts to find that a privative clause was invalid on constitutional grounds. Once this possibility is
recognised, the value of interpretive approaches that enable some effect to be given to privative clauses can be
understood.
40
The principle of statutory interpretation known as the ‘principle of legality’ is discussed more generally in Ch 2.
41
Momcilovic v The Queen (2011) 245 CLR 1, [43]–[44] (French CJ)
42
Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121, 134
43
Young
44
Administrative Review Council, The Scope of Judicial Review (Report 47, Australian Government, 2006)

28
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In Public Service Association (SA) v Federated Clerks’ Union, Dawson and Gaudron JJ said:
“Privative clauses … are construed by reference to a presumption that the legislature does not
intend to deprive the citizen of access to the courts, other than to the extent expressly stated or
necessarily to be implied.”45

Dawson and Gaudron JJ went on to say:

“Thus, a clause which is expressed only in general terms may be construed so as to preserve the
ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of
mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise
jurisdiction or by an act in excess of jurisdiction.”46

Using this approach, the courts have held that a privative clause has no impact on remedies not
named in that clause.47This includes constructions that, for instance, conclusions that protecting a
tribunal’s orders or directions did not protect a tribunal’s rejection of a submission that there was
48
insufficient evidence of a certain fact. Similarly, the courts have held that protecting a decision
did not extend to protecting unstated assumptions.49

A ‘no appeal’ clause modifies or repeals an earlier statutory grant of appeal rights, and has no
effect on the availability of judicial review. 50For example, in Hockey v Yelland, the High Court
held that a Queensland statute that provided that determinations by a medical board ‘shall be
final and conclusive’ and the claimant ‘shall have no right to have any of those matters heard and
determined by an Industrial Magistrate, or, by way of appeal or otherwise, by any Court or

45
Public Service Association (SA) v Federated Clerks’ Union of Australia (1991) 173 CLR 132, 160 (Dawson and
Gaudron JJ). Quoted with approval in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [30]–[32]
46
Public Service Association (SA) v Federated Clerks’ Union of Australia (1991) 173 CLR 132, [18] (Dawson and
Gaudron JJ).
47
Palmer Tube Mills (Aust) Pty v Ltd v Semi [1998] 4 VR 439, 459; Barnard v National Dock Labour Board [1953]
2 QB 18; Woodward v Loadman (No 2) 216 FLR 114. For example it was held that a clause ousting ‘jurisdiction to
grant relief or a remedy in the nature of certiorari, mandamus, prohibition or quo warranto’ did not oust declaratory
relief: Woodward v Loadman (No 2) 216 FLR 114.
48
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 119.
49
R v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313, 321 A similar decision is Kirk
v Industrial Relations Commission (NSW) (2010) 239 CLR 531.
50
R v McMillan; Ex Parte Metropolitan Milk Board (1939) 41 WALR 110, 116; R v Industrial Appeals Court; Ex
Parte Henry Berry & Co (Australasia) Ltd [1955] VLR 156, 163–4; O’Toole v Charles David Pty Ltd (1991) 171
CLR 232, 271; Bignell v Casino Control Authority (NSW) (2000) 48 NSWLR 462,480.

29
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judicial tribunal whatsoever’51 did not ‘oust the jurisdiction of the Supreme Court to issue writs
of certiorari’. Gibbs CJ said:

“It is a well-recognized principle that the subject’s right of recourse to the courts is not to be
taken away except by clear words The provision that the board’s determination shall be final and
conclusive is not enough to exclude certiorari The words of the further provision are in my
opinion quite inapt to take away from the Court its power to issue certiorari for error of law on
the face of the record.

Provisions which prescribe time limits for bringing an action, or include alternative processes for
bringing an appeal or challenging a decision have generally been accepted by courts, as they still
52
provide for judicial oversight. In Commissioner of Taxation v Futuris Corporation Ltd, the
High Court held that conclusive evidence and no invalidity clauses do not constitute privative
clauses where full appeal rights are available.53

As discussed above, in Plaintiff S157 v Commonwealth, the High Court read down this
provision, stating that it does not apply to any decision involving jurisdictional error. 54 In Re
Refugee Tribunal; Ex parte Aala, the High Court held that a jurisdictional error arises when a
decision maker ‘makes a decision outside the limits of the functions and powers conferred on
him or her, or does something which he or she lacks power to do’. 55The High Court gave an
expansive interpretation to the notion of jurisdictional error in this and later decisions, which
means that the scope of decisions that may be affected by jurisdictional error—and thus not
protected by a privative clause—is now very wide; so wide that it may be that an ouster clause

51
Workers’ Compensation Act 1916 (Qld) (repealed), quoted in Hockey v Yelland (1984) 157 CLR 124, 128 (Gibbs
CJ).
52
Robin Creyke, John McMillan and Mark Smyth, Control of Government Action: Text, Cases and Commentary
(Lexis Nexis Butterworths, 3rd ed, 2012), [15.3.6]. However, given the constitutionally entrenched minimum
provision of judicial review, (discussed below), it is unclear whether any time limits can set an absolute deadline for
access to judicial review: Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242
(26 November 2010) [53]. A deadline cannot exclude access to judicial review by way of the constitutional writs set
out in s 75(v) of the Constitution: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR
651, 672
53
Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, 167
54
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
55
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [163].

30
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offers no real protection against any legal error. It appears that there is little value in including
such a clause in legislation.56

One of the key rationales advanced for seeking to restrict access to the courts is that the volume
and cost of litigation in the migration context is too high, and litigants seek to abuse the system
to delay their removal from Australia.57 The Legal and Constitutional Affairs Committee
considered this issue during its Inquiry into the Migration Legislation (Judicial Review) Bill
1998. Submissions to that Inquiry stated that the large volume of litigation may also be due to the
limited availability of lawyers to assist applicants and the complexity of migration litigation. 58
Further, high rates of withdrawal are the norm in all areas of litigation, 59 and ‘mischief is not
indicated by leaving at the door of the court’.60

Based on evidence given by the Federal Court in 1999, that 72.3% of migration cases were
disposed of within nine months, 61the Legal and Constitutional Affairs Committee stated that ‘it
also appears that the amount of time to be gained from drawing out appeals to the courts may not
always be extended’.62 While the Legal and Constitutional Affairs Committee ultimately
supported the use of a privative clause, it also recommended that the Government consider, as a
matter of high priority, other avenues to address issues raised during hearings, including relating
to the availability of assistance, and abuse of process. It also concluded that case management
measures were the solution to dealing with abuse of process issues.

56
Aronson and Groves, above n 15, 940; Nicholas Gouliaditis, ‘Privative Clauses: Epic Fail’ (2010) 34 Melbourne
University Law Review 870, 883; Crock and Santow, above n 35, 347
57
Commonwealth, Parliamentary Debates, House of Representatives, Migration Legislation Amendment Bill (No.
4) 1997 Second Reading Speech, 25 July 2007 (Philip Ruddock, Minister for Immigration and Multicultural
Affairs).
58
For a summary of these submissions, see Senate Standing Committee on Legal and Constitutional Affairs,
Migration Legislation Amendment (Judicial Review) Bill 1998 (April 1999), [1.52]–[1.56]
59
Australian Law Reform Commission, Submission No 14 to Senate Standing Committee on Legal and
Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill 1998, April 1999.
60
Australian Law Reform Commission, Transcript of Evidence to Senate Standing Committee on Legal and
Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill 1998, April 1999.
61
Federal Court of Australia, Submission No 17 to Senate Standing Committee on Legal and Constitutional Affairs,
Migration Legislation Amendment (Judicial Review) Bill 1998, April 1999.
62
Senate Standing Committee on Legal and Constitutional Affairs, Migration Legislation Amendment (Judicial
Review) Bill 1998 (April 1999), [1.70]

31
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The Administrative Review Council (ARC), in its 2012 consideration of the separate statutory
scheme for review of migration decisions, concluded that case management measures and
assistance to applicants are more appropriate than excluding judicial review to reduce the volume
and cost of litigation in the context of migration proceedings. 63 Under s 494AA, judicial review
is excluded (except under the Constitution) of matters relating to the entry, processing and
detention of asylum seekers arriving by boat, who landed at an ‘excised offshore place’. The
Explanatory Memorandum noted that this bar on proceedings sought to ‘limit the potential for
future abuse of legal proceedings’.64 The Senate Standing Committee for the Scrutiny of Bills did
not accept this justification, stating that ‘such provisions are contrary to the principles and
traditions of our judicial system which see judicial review and due process as fundamental
rights’.65

A Common Law Principle

Access to the courts for the purpose of judicial review is an important common law right. Sir
William Wade stated that ‘to exempt a public authority from the jurisdiction of the courts of law
is, to that extent, to grant dictatorial power’. 66In Church of Scientology v Woodward, Brennan J
said:

“Judicial review is neither more nor less than the enforcement of the rule of law over executive
action; it is the means by which executive action is prevented from exceeding the powers and
functions assigned to the executive by law and the interests of the individual are protected
accordingly.67”

In his Introduction to Australian Public Law, Professor David Clark gives a brief history of
judicial review of administrative action: Judicial review in the administrative law sense
originated in the 17th century when various prerogative writs, so called because they issued in
63
Administrative Review Council, Federal Judicial Review in Australia, Report No 50 (2012), [6.16]; Senate
Standing Committee on Legal and Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill
1998 (April 1999), rec 2, [3.40].
64
Explanatory Memorandum, Migration Amendment (Excision from Migration Zone) (Consequential Provisions)
Bill 2001
65
Senate Standing Committee for the Scrutiny of Bills, First Report of 2002 (February 2002),46
66
Not every administrative decision is subject to judicial review. Administrative action which does not affect an
individual’s liberties, vested rights or legitimate expectations is not subject to judicial review. Similarly, policy
decisions of government are not subject to judicial review.
67
Church of Scientology v Woodward (1982) 154 CLR 25, 70 (Brennan J)

32
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the name of the Crown, began to be issued against administrative bodies. These writs, such as
certiorari, prohibition and mandamus originated in the 13th century, but were originally confined
to review of the decisions of inferior courts … By the late 17th century, the writs began to be
used against administrative agencies such as the Commissioners of Sewers, and the
Commissioners for Bridges and Highways. With the dramatic expansion of State functions in the
19th century and the emergence of innumerable statutory bodies, committees, commissions, and
other administrative agencies, the way was open for the expansion of judicial review in this
sense.

The power to judicially review what were once called inferior jurisdictions (lower courts and
administrative agencies) arrived in Australia with the opening of the first Supreme Courts in Van
Diemen’s Land and New South Wales in 1824 … The power to review by certiorari, prohibition
and mandamus was, in origin, a common law power and was, therefore, a power of jurisdiction
created by the courts through their judicial decisions”.68

It is widely recognized that the right to judicial review is not absolute. Judicial review is
available to test the legality of a decision, and not its merits—the courts are not authorized to ask
whether a decision was a ‘good’ decision. It asks only whether the decision has been properly
made, in accordance with the law.

At common law, the availability and scope of judicial review is a consequence of the judicial
remedy sought. These remedies are the prerogative writs of habeas corpus, 69 quo warranto,70
mandamus,71 certiorari,72 and prohibition,73 as well as the equitable remedies of injunction and
declaration. The standing rules relating to the availability of common law remedies and time
limits which apply in relation to each of these differ. 74 While some of these requirements have

68
David Clark, Introduction to Australian Public Law (Lexis Nexis Butterworths, 4th ed, 2013) 247
69
The writ of habeas corpus demands that a person incarcerated be brought before the court to determine whether
there is lawful authority to detain the person.
70
The writ of quo warranto requires the decision maker to show by what authority they exercise a power
71
Mandamus is an order compelling or directing a lower court or administrative decision maker to perform
mandatory duties correctly. A writ of procedendo sends a case to a lower court with an order to proceed to judgment
72
A writ of certiorari sets aside a decision made contrary to the law
73
A writ of prohibition forbids a decision maker from commencing or continuing to perform an unlawful act.
74
Matthew Groves and Janina Boughey, ‘Administrative Law in the Australian Environment’ in Matthew Groves
(ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 3, 6

33
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relaxed over time,75 access to Traditional Rights and Freedoms judicial review at common law
remains technical and complex. The Kerr Committee 76 recognized that the rules that apply to
judicial review at common law were ‘both unwieldy and unnecessary’. 77 It noted that ‘a case can
be lost or won on the basis of choice of remedy’.78

At common law, the following are subject to judicial review: a rule-maker’s power to make
delegated legislation;79 decisions of the Governor-General; recommendations and findings
contained in coronial reports; Royal Commission reports; and the reports of other formal
advisory bodies. Judicial review is also available in relation to decisions made in exercise of a
prerogative or executive power, intermediate decisions, and some contractual decisions.

Comparative study

The Constitution of India drew, as did the Australian Constitution fifty years earlier, upon
lessons and examples learnt from the Constitution of the United States of America. The Indian
Constitution, like that of Australia, adopted the federal arrangement and the creation of a judicial
branch wholly independent of the other branches of government. Judicial review, to keep all
recipients of pubic power within the Constitution and other applicable laws was faithfully
75
The tests for standing to sue at common law are converging Mark Aronson and Matthew Groves, Judicial Review
of Administrative Action (Thomson Reuters Australia, 2013) 723.
76
In 1968, the Commonwealth Administrative Review Committee, chaired by Sir John Kerr was established to
consider reform of administrative law in Australia. This committee is referred to in this chapter as the ‘Kerr
Committee’.
77
Commonwealth, Report of the Administrative Review Committee, Parliamentary Paper No 133 (1971) [58]. This
report is referred to in this chapter as the Kerr Committee Report.
78
Id.
79
Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314, 321

34
 35

imitated. But the Indian Constitution went further. It adopted (as some have suggested the
Australian Constitution should now do) the republican principle 80 It also incorporated a Bill of
Rights which, until very lately, has been regarded as a notion alien to the sovereignty of
Parliament so central to the constitutional ideas of the United Kingdom 81. Yet, despite these
important features which distinguish the Indian Constitution from that of Australia,
overwhelmingly their governmental and legal systems are similar. Whereas the Indian Head of
State is called President, he acts, like the sovereign of the United Kingdom and the Queen and
her representatives in Australia, on the advice of Ministers who are accountable to the lower
house of Parliament. In this sense, the President's functions are similar to those of the Governor-
General of Australia. The President is not of course the representative of the monarch82. As
Seervai remarks83:

"To remove a common misconception, it ought to be stated that the machinery of Govt. set up
by our Constitution follows in essentials the British, and not the American model. The doctrine
of the separation of powers and the doctrine that legislatures of the delegates of the people which
are basic doctrines of the US Constitution do not form part of the Constitution of Great Britain or
the Constitution of India. Our Constitution has rejected the Presidential form of Govt., that is of
an Executive independent of and not responsible to, the legislature and adopted the British model
of government by a Cabinet, that is, of an Executive responsible to, and removable by the
legislature".

Similarly, with respect to the functions and powers of the Supreme Court, Seervai notes84:

"The position occupied by our Sup Ct more closely resembles that of the Sup Ct of Australia
than of the US Sup Ct. The US Sup Ct is not the final Court of Appeal in Civil and Criminal

80
Indian Constitution, Preamble first line. Note Constitution (Forty-second Amendment) Act 1976, s2; cf H M
Seervai, Constitutional Law of India (4th ed, 1991), vol 1, 158
81
H M Seervai, Constitutional Law of India (4th ed, 1991), vol 1, 159; cf M Kachwaha, The Judiciary in
India, Leiden, 1998, 15
82
Australian Constitution, s61 ["The executive power of the Commonwealth is vested in the Queen and is
exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of
this Constitution, and of the laws of the Commonwealth"]
83
H M Seervai, Constitutional Law of India (4th ed, 1991), vol 1, 159 referring to Shamsher Singh v Punjab [1975]
1 SCR 814; (74) ASC 2192.
84
H M Seervai, Constitutional Law of India (4th ed, 1991), vol 1, 263.

35
 36

cases throughout the United States. It has appellate jurisdiction to control inferior Courts, but its
principal work is as a Constitutional Court. Our Sup Ct is a final Court of Appeal in all matters
from all courts in India and not merely on Constitutional matters. It has a limited original
jurisdiction and … and an exclusive original jurisdiction in disputes between the Union and the
States. The Sup Ct of Australia is a final Court of Appeal in Australia in all matters, Civil,
Criminal and Constitutional85".

There is no doubt, as Seervai discerns (citing his kindred spirit, Dr Wynes of Australia), that the
fact that the Supreme Court of India, like the High Court of Australia, is a general court of
appeal, profoundly influences its image of itself, its methodology and its work. Although, in
deciding constitutional and other cases, the supreme court of any nation, India and Australia
included, is inescapably involved in the resolution of political questions, the performance of the
responsibilities of a general court of appeal has a tendency to tame the larger ambitions, to
control the kinds of people who are appointed and to encourage a methodology which promotes
consistency and diminishes the more unrestrained flights of judicial fancy.

Yet for all the similarities, which even reach down to matters of titles, courtroom courtesies,
curial organisation, hours of work and so on, there are inescapable differences. The Indian
judiciary is the "guardian angel"86of the Constitution which brings the rule of law to one of the
most populous, diverse and challenging societies of the world. The crippling case loads of the
courts of India far exceed those of Australia, heavy though these seem. Poverty and ancient
prejudices and disadvantages have imposed on the Indian judiciary pressing obligations to adapt
constitutional and other laws to secure and uphold an essential social revolution. These are
obligations that judges in Australia do not have to face, at least to anything like the same degree.
In part, this phenomenon explains the jurisprudence of the Supreme Court of India, enlarging

85
He refers to the theoretical exception of an appeal by certificate of the High Court of Australia to the Judicial
Committee of the Privy Council in accordance with Australian Constitution, s74. That possibility is now a dead
letter. See State of Western Australia v Hammersley Iron Pty Ltd [No 2] (1969) 120 CLR 74. See also Kirmani v
Captain Cook Cruises Pty Ltd [No 2]; Ex parte Attorney-General (Qld) (1985) 159 CLR 461 at 463-465.
86
M Kachwaha

36
 37

the locus standi of those who would engage the courts87in a way that has not yet been copied in
the ultimate court of Australia88 or, indeed, in most other countries of the common law

Indian use of Australian Law

Certain similarities in the constitutional texts, together with the common legal tradition and
shared judicial assumptions made it natural, in the earliest days of the Constitution of India, that
its judges would look to decisions of other federal supreme courts for guidance, including to the
High Court of Australia. By that time, the High Court of Australia had fifty years of judicial
elaboration of the Australian Constitution. The early decisions of the Supreme Court of India
drew substantially on this.

For example, in 1954 in Commissioner, Hindu Religious Endowments, Madras v Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt89 Mukherjea J, in relation to a case
concerning the protection of religious freedom as guaranteed by the Indian Constitution, called in
aid the decision of Latham CJ in Adelaide Company of Jehovah's Witnesses v. The
Commonwealth90 Mukherjea J held that Latham CJ's "observations apply fully to the protection
of religion as guaranteed by the Indian Constitution". The exercise of religion is not unfettered.
The provision for its protection exists in a broader constitutional context. It is to be interpreted
in conjunction with the other provisions of the Constitution. For example, restrictions may
lawfully apply to the free exercise of religion on the basis of public order, morality and health
and the regulation of economic, financial, political and secular activities of the religion 91.
In Ratilal Panachand Gandhi v State of Bombay92, Mukherjea J said:

87
Fertilizer Corporation Kamagar Union v Union of India [1981] AIR (SC) 344; S P Gupta v President of India and
Ors AIR [1982] AIR (SC) 149 at 186; cf V Sripati, "Human Rights in India - Fifty Years After Independence"
(1997) 26 Denver J Intl L and Policy 93 at 119.
88
For a recent Australian decision, see Oshlack v Richmond River Council (1998) 193 CLR 72; cf Levy v
Victoria (1997) 189 CLR 579 and Attorney-General for the Commonwealth v Breckler [1999] HCA 28 at [102-109]
where the right of intervention before the High Court of Australia is considered.
89
[1954] SCR 1005 at 1024.
90
(1943) 67 CLR 116 at 127
91
[1954] SCR 1005 at 1024,citing cl 2(a) and (b) of Article 25 of the Constitution
92
[1954] SCR 1055 at 1066

37
 38

“The distinction between matters of religion and those of secular administration of religious
properties may, at times, appear to be a thin one. But in cases of doubt, as Chief Justice Latham
pointed out the court should take a commonsense view and be actuated by considerations of
practical necessity.

In the same realm of discourse, another great judge, Khanna J, in St Xavier's College v
Gujarat93 also drew on Latham CJ's opinion in the Jehovah's Witnesses Case. He cited Latham
CJ's warning:

"It should not be forgotten that such a provision as s116 [of the Australian Constitution], is not
required for the protection of the religion of the majority. The religion of a majority can look
after itself. Section 116 is required to protect the religion (or absence of religion) of minorities,
and, in particular, of unpopular minorities"94

Another area of jurisprudence which was called in aid in the early days of the Indian Constitution
concerned the constitutional guarantee of just terms for any law providing for federal acquisition
of property95. In Chiranjital Chowdhuri v Union of India 96 the Supreme Court of India noticed
the expansive view adopted of the Australian constitutional guarantee as expressed in the
decision of the High Court of Australia in Minister of State for the Army v Dalziel 97. This is still
good law in Australia. It has been applied recently 98. In RC Cooper v Union of India99 Ray J.
drew on the Australian decision. So did Sastri CJ in State of West Bengal v Subodh Gopal
Bose100. The broad view adopted in the Australian decisions concerning the meaning of
"property" for the purpose of constitutional provisions relating to compulsory acquisition of
property undoubtedly influenced many early decisions of the Indian Court.

93
[1975] 1 SCR 173
94
[1975] 1 SCR 173 at 224-225 citing (1943) 67 CLR 116 at 124.
95
Australian Constitution, s 51(xxxi).
96
[1950] SCR 869 at 921
97
(1944) 68 CLR 261 at 285
98
For recent cases see Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513. The
Commonwealth v WMC Resources Ltd (1998) 72 ALJR 280; The Commonwealth of Australia v Western
Australia (1999) 195 CLR 392.
99
[1970] 3 SCR 530 at 635.
100
[1954] SCR 587 at 610

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 39

In Dwarkadas Shrinivas v Sholapur Spinning and Weaving Co 101 Mahajan J. expressed the
opinion that "the true concept of the expression 'acquisition' in our Constitution … is the one
enunciated by Rich J and the majority of the court in Dalziel's Case102". Of course, care must be
taken in adapting words used in relation to a different constitutional text, expressed in different
terms and applicable to utterly different social circumstances and needs. Special care must be
taken in the case of India because of the successive amendments to the provisions of the
Constitution relating to the compulsory acquisition of property 103. However, the use of the
jurisprudence of the High Court of Australia indicates the particular open-mindedness of the
early judges of the Supreme Court of India and their willingness to look beyond the traditional
sources of the English judiciary.

One of the most vexed areas over the course of federation has been the guarantee in s92 of the
Australian Constitution of absolute freedom of interstate trade, commerce and intercourse. The
adoption of a counterpart provision in the Indian Constitution (Article 301) made it natural
enough that attempts would be made, in the early days, to borrow from the meandering course of
Australian case law for the guidance which it could give to the Supreme Court of India.
In Automobile Transport (Rajasthan) Ltd v State of Rajasthan 104, Das J. referred to the need to
read the Indian provision in a constitutional context which acknowledged the need and
legitimacy of a measure of regulatory control, whether by the Union government or by the
governments of the States. In this, Das J. relied upon the observations of Australia's first Chief
Justice, Griffith CJ., in Duncanv State of Queensland105 That fine jurist had said: "The word
'free' does not mean extra legem , any more than freedom means anarchy. We boast of being an
absolutely free people, but that does not mean that we are not subject to law." Thus, the
Supreme Court of India, like the High Court of Australia, adopted the view that the notion of
freedom employed in the guarantee of free internal trade and commerce is to be understood in

101
[1954] AIR (SC) 119
102
[1954] SCR 674 at 704. State of Karnataka v Ranganatha [1978] 1 SCR 641
103
A point noted by the author in Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 659-
660. In India, there has been a significant amendment to the Constitution with respect to property. The right to
property, formerly protected in Article 19(f), has been deleted by the 44th Amendment. Article 300A was then
incorporated, stating that no person shall be deprived of their property save by authority of law.
104
[1963] SCR 491
105
1916) 22 CLR 556 at 573

39
 40

the context of "the working of an orderly society". As such, it is necessary "to add certain
qualifications subject to which alone that freedom may be exercised"106

Subba Rao J, in his opinion in the Automobile Transport Case, undertook an extensive review
of the Australian case law on freedom of trade, commerce and intercourse. He noted that "some
of the leading Australian decisions contain an interesting and instructive exposition of the
conflict of jurisdiction and useful suggestions for resolving it"107. Perceptively, he noted108:

"Paradoxically the Courts of Australia … evolved the power to restrict the said freedom by the
States from the concept of absolute freedom itself. This was necessitated because there were no
statutory provisions limiting the absolute freedom and, as uncontrolled freedom may lead to
chaos, limitations on the freedom were evolved to save the said freedom. The scope of the
limitations so evolved would be useful to construe the relevant provisions of our Constitution".

Hidayatullah J, whilst relying on the Australian decisions, was careful to predicate his own
consideration of the article with the qualification109:

"Nothing is more dangerous to suppose that the Indian Constitution wished to secure freedom of
trade, commerce and intercourse in the same way as did the Australian Commonwealth".

However, like the Australian decisions, Hidayatullah J. concluded that a law which targeted
interstate trade and commerce as such would be invalid110. This is still the law in the Australian
Commonwealth. However, since the early borrowings from our jurisprudence a new
enlightenment has been reached in Australia 111. This is a difficult and controversial area, littered
with legal tombstones, I hesitate to suggest that great help will be procured by Indian lawyers.

106
[1963] SCR 491 at 521 per Das J
107
[1963] SCR 491 at 545
108
[1963] SCR 491 at 544
109
[1963] SCR 491 at 575
110
[1963] SCR 491 at 575.
111
cf Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29. For the comparable position in
the European Union see P J Smith, "Movement of Goods Within the EC and s 92 of the Australian Constitution"
(1998) 72 ALJ 465.

40
 41

The words of Das CJ in The State of Bombay v RMD Chamarbaugwala 112in this area, as in all
others, must resonate in our minds. Australian cases, he said, should113:

"be used with caution and circumspection … The scheme of the Australian Constitution … is
different from that of ours, for in the Australian Constitution there is no such provision as we
have in Art 19(6) or Arts 302-304 of our Constitution. The provision of s92 of the Australian
Constitution being in terms unlimited and unqualified the judicial authorities interpreting the
same had to import certain restrictions and limitations dictated by common sense and the
exigencies of modern society".

There is another particular area of constitutional jurisprudence in which the Supreme Court of
India has found useful the decisions of the Australian High Court. It concerns inconsistency or
repugnancy of State and federal (or Central) laws. The provision of the Indian Constitution in
this regard (Art 254) is similar to that of s109 of the Australian Constitution. The analysis of
s109 offered by Dixon J seventy years ago in Ex parte McLean114has proved as powerful an
influence upon the minds of successive generations of Indian judges as it has upon those of
Australia. Take for example the decision in V K Sharma v State of Karnataka115. There, K
Ramaswamy J, in dissent as to the outcome, examined closely the history of Australian
jurisprudence on the subject of constitutional inconsistency of laws. The need to approach
inconsistency and repugnancy in the constitutional sense in the context of a federal polity which
is expected to work harmoniously as between the several parts, has been emphasised both in
Australian and in Indian jurisprudence116.

In Ch Tika Ramji v State of Uttar Pradesh 117, Justice N H Bhagwati drew on the Australian
constitutional decisions, and in particular Ex parte McLean in concluding118:

112
Cole v Whitfield (1988) 165 CLR 360
113
[1957] SCR 874 at 906-907.
114
[1957] SCR 874 at 918.
115
(1930) 43 CLR 472 at 483
116
[1990] 1 SCR 614.
117
See eg Thakkar J in Ram Chandra Mawa Lal v State of Uttar Pradesh [1984] 2 SCR 348. For a closely divided
recent Australian case see Gould v Brown (1998) 72 ALJR 375.
118
[1956] SCR 393

41
 42

"If it appeared that the Federal law was intended to be supplementary to or cumulative upon
State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting
different penalties. The inconsistency does not lie in the mere co-existence of two laws which
are susceptible of simultaneous obedience. It depends upon the intention of the paramount
Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be
the law governing the particular conduct or matter to which its attention is directed".

The metaphor used in Ex parte McLean, by which the federal or central law will expel its state
competitor if its clear purpose was to "cover the field" has entered Indian jurisprudence on this
subject, just as, for seventy years, it has influenced countless Australian decisions where the like
problem has presented.

Australian use of Indian Law

There are many areas where the Justices of the High Court of Australia have called upon
decisions of the Supreme Court of India in explaining their reasons. Thus, in Bropho v Western
Australia119, the Court had to consider the application of the principle of statutory interpretation
that general words in a statute will ordinarily be construed as inapplicable to the Crown (i.e., the
State). The majority of the High Court, comprising Mason CJ., Deane, Dawson, Toohey and
McHugh JJ. pointed to the fact that "there has been a growing tendency to question the
appropriateness of the old rule of immunity to modern circumstances". 120 In doing so, they
referred to the decision of the Supreme Court of India in State of West Bengal v Corporation of
Calcutta121.

In the Tasmanian Dam Case122, Murphy J. referred to the developed jurisprudence in a number
of countries, including India by which the constitutionality of legislation is presumed unless the
contrary is demonstrated. Murphy J referred, amongst other decisions, to Chiranjit Lal
Chowdhuri v Union of India123 State of Bombay v F N Balsara124, V M Syed Mohammad and Co

119
[1956] SCR 393 at 425
120
(1990) 171 CLR 1
121
[1967] AIR (SC) 997 at 997-998.
122
Commonwealth v Tasmania (1983) 158 CLR 1 at 165.
123
[1950] 1 SCR 869 at 879
124
[1951] AIR (SC) 318.

42
 43

v Andhra125 and Krishnan v Tamil Nadu126. With reference to further Indian decisions, Murphy
J. made the same point in Attorney-General (Western Australia) v Australian National Airlines
Commission127.

In the context of equality before the law, a number of decisions of the Australian High Court
have drawn upon opinions in the Supreme Court of India. Thus in the important case of Dietrich
v The Queen128 Deane J. noted that reasoning similar to that in the United States which upheld
the right of indigent prisoners to state-funded legal representation had "prevailed in India". He
referred to Hoskotv Maharashtra129 and Hussainara Khatoon v Home Secretary, State of Bihar130.

Justice Deane also drew upon the decision of the Supreme Court of India in Maneka Gandhi v
Union of India131 in support of the principle that a constitutional guarantee, such as that contained
in s117 of the Australian Constitution, should be interpreted broadly and not confined to "narrow
technicality or legalism". 132 In the same case, Gaudron J 133 referred to the jurisprudence of the
Supreme Court of India on the notion of equality before the law. Specifically, she cited the
remarks of Das J in State of West Bengal v Anwar Ali134

"All persons are not, by nature, attainment or circumstances, equal and the varying needs of
different classes of persons often require separate treatment and, therefore, the protecting clause
has been construed as a guarantee against discrimination against equals only and not as taking
away from the State the power to classify persons for the purpose of legislation".

In another case, Mabo v Queensland135, Wilson J in the High Court of Australia referred to the
decisions of the Supreme Court of India concerning equality before the law. Applying a passage

125
[1954] SCR 1117 at 1120
126
[1975] 2 SCR 715 at 729
127
(1976) 138 CLR 492 at 529
128
(1992) 177 CLR 292 at 334
129
[1979] 1 SCR 192 at 204-208
130
[1979] 3 SCR 760 at 765. The United States decisions include Betts v Brady (1942) 316 US 455 at 476 per Black
J and Gideonv Wainwright (1963) 372 US 344-345 per Black J.
131
[1978] AIR (SC) 597.
132
Street v Queensland Bar Association (1989) 168 CLR 461 at 527
133
(1989) 168 CLR 461 at 571-572
134
[1952] AIR (SC) 75 at 93.
135
1988) 166 CLR 186 at 206

43
 44

in the reasoning of Mathew J. in Kerala v Thomas136, Wilson J. observed that "formal equality
before the law does not always achieve effective and genuine equality … The extension of
formal equality in law to a disadvantaged group may have the effect of entrenching inequality in
fact"137. This same point was made by Brennan J. in the Australian High Court in his decision
in Gerhardy v Brown138 where he referred to the "pithily observed" remarks of Ray CJ. that
“equality of opportunity for unequal’s can only mean aggravation of inequality" 139. Brennan J.
remarked that “the validity of these observations is manifest”140.

In Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority141 I cited the
links in the jurisprudence on inconsistency and repugnancy in India and in Australia. As I have
already explained, in each country the courts have applied tests to uphold, where constitutionally
required, the legislative supremacy of the federal (or Central) laws.

SUGGESTIONS

Judicial review exists to enable independent courts to act as parliament’s watchdog and ensure
that public bodies abide by the law and interpret it correctly. The legal questions raised are
“political” insofar as all wielding of state power is political, but judicial review is not about
second-guessing policy choices, it is rather about upholding legislation. A judge’s role is to
136
[1976] 1 SCR 906 at 951
137
(1985) 159 CLR 70 at 128-129.
138
(1988) 166 CLR 186 at 206.
139
[1976] 1 SCR 906 at 933.
140
(1985) 159 CLR 70 at 129
141
(1997) 190 CLR 410 at 497

44
 45

check whether decisions are within the decision-maker’s legal power and rationally made,
following the proper procedures. If the government wants to modify the laws and procedures in
question it is free to do so, but until that happens the courts require public bodies to obey the law
as it stands. A significant curtailment of judicial review would place the government and public
bodies above the law.

Here in India we have adopted the concept of Separation of power so we cannot assume the
power of judicial review in full extended form. If the courts presume full and arbitrary power of
judicial review it will lead to the poor performance of work by all the organs of government. So
to keep all the functions work properly each has to work in its provided sphere. In India, we have
the concept of judicial review embedded in the basic structure of the constitution. It helps the
courts to keep a check and balance upon the other two organs of government so that they don’t
misuse their power and work in accordance with the constitution. Finally, we have developed the
concept of judicial review and it has become the part of basic structure in case of Minerva Mills
V. Union of India. So, at last, it is correct to say that judicial review has grown to safeguard the
individual right, to stop the use of arbitrary power and to prevent the miscarriage of justice.

CONCLUSION

With the right public awareness in India, every major government action on judicial review is of
the trend of legal development in India. Some executive branches of government have begun to
take the initiative to bring judicial review of some controversial issues in order to reduce

45
 46

decision-making responsibilities. From India, the development of judicial review and the basic
framework can draw the following conclusions. First, India is an important judicial review of the
constitutional system in Indian capitalism. The rule of law plays a positive role in safeguarding
the constitutional system. Secondly, the main function of judicial review of the system is to
balance the legislative and administrative constraints, and in essence is the interests of all sectors.

The purpose of judicial review from the Indian courts is to establish the constitutional principle
of judicial review, as well as the expansion of judicial review. The judicial review of
constitutional governance is to be a useful tool to play its effective role. Courts need to balance
different social interests, to take appropriate activism or restraint doctrine in the judicial review
and to consider many factors like the laws of the policies and programs, the discretion granted to
the target and the nature and scope of the discretionary decisions that may affect the rights and
interests of the consequences. Finally, the development of judicial review in India is inherited
from the British colonial era and its constitutional system and the product of common law
judicial system is the capitalist nature of the constitutional mechanism.
In spite of the fact that ability to survey is vital, simultaneously outright ability to audit can't be
conceded and by seeing legitimate overview as a piece of fundamental component of the
Constitution, courts in India have given without a doubt a substitute significance to the
speculation of Checks and Balances. This additionally implies that it has covered the idea of
division of forces, where the legal executive will give itself a free purview to audit everything
without exception that is finished by the council
As respects the force of judicial review, it has, in its state of the art work out, regularly been
addressed as being contradictory to detachment of forces and the degree of its activity has been
contended to encroach India's model of the tenet by astounding the planned protected cut-off
points. It is essential to note, nonetheless, that legal survey guarantees the matchless quality
individuals and not the legal executive, as pinpointed by Alexander Hamilton. Legal audit as
conceded by the Indian Constitution empowers the legal executive to go about as a defender of
the Constitution and law and order, the two of them being basic upsides of partition of forces. It
doesn't go against the regulation however radiates from it, as a way to uphold a similar where it
is encroached.

46
 47

In light of the High Court’s approach to privative clauses in Plaintiff S157, it appears that such
clauses have little to no effect in limiting access to the courts. The ARC, in its 2012
consideration of the scope of judicial review, stated that privative clauses which attempt to
‘restrict or exclude judicial review entirely will not be successful’. The Australian Government
should consider a review of privative clauses in Commonwealth laws. Where the underlying
policy rationale is considered warranted, consideration should be given to whether alternative
solutions which do not restrict access to the courts, and are more targeted and effective in
addressing the underlying policy issue, may be implemented.

Bibliography

47
 48

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Government, 2006)
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