Judicial Review and Schedule 9

8/10/2019 Judicial Review and Schedule 9

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Project on the Constitution of India

Judicial review and the 9thschedule Page 1

Judicial Review

Project on the Indian Constitution

Submitted by,

Akashdeep Pandey

4th

semester

Faculty of Law

Jamia Millia Islamia

Contents


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Introduction

History of Judicial Review

Judicial review in India

I.

Rule of Law

II. Separation of Power & the Doctrine of Checks and Balances

Validity of Constitutional amendments

Schedule 9 of the Indian Constitution

Administrative law

Methods of enforcement of Judicial review

Purposes of Judicial review

Conclusion

Acknowledgement

Writing the Acknowledgement for the project in the subject of Constitution is a

fairly simple undertaking for anyone who has attended even a single class of Dr.


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Asad Malik. The clarity, the command and the humour he brings into every class is

infectious, making any student believe that there can be no easier subject that the

Indian Constitution and that anyone can master it, provided he gives the subject the

respect and recognition that Sir himself gives the subject.

Furthermore I would like to thank all those people who gave the subject their time

and wrote books which I eventually referred. In this matter, I would particularly

like to thank Dr. C. D. Jha, whose book was precise and the largest reference in

this work.

Without the contribution of the above said people I could have never completed

this project.

In addition, I would also like to thank my friends, without their help, I could have

never typed out this project.

Introduction

The Indian Constitution was adopted on 26 thJanuary 1950, i.e. exactly 894 days

after the country got independence from the crutches of the British Rulers. The

Framing of the Indian constitution took a lot of time, hence it can be seen that it is

also the largest constitution in the World, having incorporated what the framers felt


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were the best of laws and doctrines from the world over into the constitution and

also keeping in view the Indian society and the compatibility of such laws in the

said society. The need for the constitution to be in conformity of the needs of the

society and the people it governs is the basic reason why a provision of Judicial

Review has been incorporated in the Indian Constitution.

The idea of Judicial Review has been included in the Indian constitution, not as

any separate provision, but in the very spirit of the Constitution similar to the idea

of federalism, which has not been mentioned anywhere in the constitution and yet

is seen as an inalienable part of the same. The power to enact new laws and amend

the constitution lies with the Legislature, a body of officials elected by the people

who represent the will of the people in their decisions. In those cases where this

body makes laws or amends laws in such a way wherein the law or amendment is

in direct contravention of the basic structure of the Constitution1 or any rights

guaranteed by the constitution in Part III.

A good constitution must possess some fundamental limitations and restrictions on

the power to govern and legislate. The limitations and restrictions are direct or

indirect, express or implied. A good constitution must also provide for the power

of Judicial Review over Constitutional Amendments and Legislative Acts. In a

Federal state, such impartial institution is unquestionably needed to maintain the

federal balance2.

1Keshavananda Bharti v. State of Kerala AIR 1973 SC 1461

2Brief Outline to the book, Judicial Review of Legislative Acts, C.D. Jha, 2009, LexisNexis Butterworths Wadhwa


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History of Judicial Review

It is to be noted that the idea of Judicial Review was first propounded by Coke,

C.J. He stated that any law that was against public sentiment and common morality

and did not appeal to the common right and reason was declared void.

The relevant passage of Bonhams case pronounced by Coke, C.J. readsas follows:

And it appears in our books, that in many cases, the common law will control the

Acts of the Parliament, and sometimes adjudge them to be utterly void, for when

an Act of the Parliament is against the common right and reason, or repugnant, or


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impossible to perform, the common law will control it, and adjudge such Act to be

void3.

It has been noted that the above statement was nothing but an obiter dictaand was

not in any way related to the final decision in the case, thus not being binding in

practice4.

Later the rights given to the British Parliament were increased to such extents by

making the Parliament sovereign, thus pulling it out of the ambit of the jurisdiction

of the judiciary in the country. This effectively put an end to any scope of Judicial

review in the country.

This was noted by an American Judge5in the Van Homes Lesees case6,

Some of the Judges in England have had the boldness to assert that an act of

Parliament made against natural equity is void; but that opinion contravenes the

general position, that the validity of the act of the Parliament cannot be drawn into

question by the Judicial department. It cannot be disputed and must be obeyed. The

power of the parliament is absolute and transcendent, it is omnipotent in the scale

of political existence.

In 1842, the House of Lords held,

All that a Court of Justice can do is to look into the Parliament roll: if from that it

should appear that a bill has passed both houses and received Royal Assent, no

Court of Justice can inquire into the mode in which it was introduced into the

Parliament, nor into what was done previous to its introduction, or what was

3Dr. Bonhams case 8 Co, Rep 113b, at 118a

4Constitutional and Administrative Law, O Hood Phillips, 1967, Sweet &Maxwell, London, p 50

5Justice Patterson

6Van Homes Lessee v. Dorrance 2 Dallas 304 (1795)


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passed in Parliament during the progress in its various stages through both the

Houses7.

The same was also noted by Justice M Hidayatullah,

The Power of Judicial Review was abandoned in England some three hundred

years ago after which the sovereignty of the Parliament is beyond question8

After the said case in England and the eventual fall of the doctrine of Judicial

Review in the country, there was much activism in the USA for the adoption of

similar ideas so as to strengthen the working of the state and in order to protect the

rights of the people, there were the famous judiciary debates in the Senate in which

the power of the Judges for Judicial Review was vigorously asserted, Senator

Morris in the Judiciary Debates of 1802 said,

The Power of the courts to declare legislation invalid is derived from an authority

higher than the constitution, i.e. the constitution of man, from the nature of things,

from the necessary process of human affairs.9

In 1803, the fourth Chief Justice of America, Marshall, C.J. wrote the historic

decision of Marbury v. Madison10, in this decision he declared that the legislature

has no authority to make laws repugnant to the constitution and in the case of

constitutional violations, the court has the absolute and inherent right to declare the

Legislative Act void. In effect this was the first decision that established the

doctrine of Judicial Review in the ratio decidendi of the judgement. Bernard

Schwartz is of the view that this case has much historical importance as it is the

7Edinburgh and Dalkeith Ry v. Wanchope (1842) 8 Cl & F 710

8Democracy in India and the Judicial Process, M Hidayatullah, 1966, Asia Publishing House, Bombay, p 65

9Judicial Review of Legislative Acts, C.D. Jha, 2009, LexisNexis Butterworths Wadhwa

101 Cr 137 (1803), p 170


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Judicial review in India

Judicial review has its basis on the following basic principles that also form the

basis of the Constitution of India, they are,

1.

Rule of Law

2. Separation of Power

3. Doctrine of Checks and Balances

Further examination of these principles is needed in order to understand the basic

idea behind the incorporation of an idea such as Judicial Review in the

Constitution of India.

Rule of Law

Article 14 of the Constitution of India has propounded the idea of rule of law,

wherein it guarantees that every person within the territorial confides of India shallnot be denied equality and shall be governed equally in the view of the law.

Dicey said:


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It means, in the first place, the absolute supremacy or predominance of regular

law as opposed to the influence of arbitrary power, and excludes the existence of

arbitrariness, of prerogative, or even of wide discretionary authority on the part of

the government.12

Lord Chief Justice Coke quoting Bracton said in the case of Proclamations13,

"The King himself ought not to be subject to man, but subject to God and the law,

because the law makes him King".

The essential characteristic of the rule of law are:

The supremacy of law, which means that all persons (individuals and

government) are subject to law.

Aconcept of justice which emphasizes interpersonal adjudication, law

based on standards and the importance of procedures.

Restrictions on the exercise ofdiscretionary power.

The doctrine ofjudicial precedent.

Thecommon law methodology.

Legislation should be prospective and notretrospective.

Anindependent judiciary.

The exercise by Parliament of the legislative power andrestrictions on

exercise of legislative power by the executive.

An underlyingmoral basis for all law.

12Law of constitution, A.V. Dicey, 1885

13(1610) 77 ER 1352
http://www.ourcivilisation.com/cooray/btof/chap181.htmhttp://www.ourcivilisation.com/cooray/btof/chap182.htmhttp://www.ourcivilisation.com/cooray/btof/chap183.htmhttp://www.ourcivilisation.com/cooray/btof/chap184.htmhttp://www.ourcivilisation.com/cooray/btof/chap185.htmhttp://www.ourcivilisation.com/cooray/btof/chap186.htmhttp://www.ourcivilisation.com/cooray/btof/chap187.htmhttp://www.ourcivilisation.com/cooray/btof/chap188.htmhttp://www.ourcivilisation.com/cooray/btof/chap189.htmhttp://www.ourcivilisation.com/cooray/btof/chap189.htmhttp://www.ourcivilisation.com/cooray/btof/chap188.htmhttp://www.ourcivilisation.com/cooray/btof/chap187.htmhttp://www.ourcivilisation.com/cooray/btof/chap186.htmhttp://www.ourcivilisation.com/cooray/btof/chap185.htmhttp://www.ourcivilisation.com/cooray/btof/chap184.htmhttp://www.ourcivilisation.com/cooray/btof/chap183.htmhttp://www.ourcivilisation.com/cooray/btof/chap182.htmhttp://www.ourcivilisation.com/cooray/btof/chap181.htm


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Separation of Power & the Doctrine of Checks and Balances

There are three distinct activities in every government through which the will of

the people are expressed. These are the legislative, executive and judicial functions

of the government. Corresponding to these three activities are three organs of the

government, namely the legislature, the executive and the judiciary. The legislative

organ of the state makes laws, the executive enforces them and the judiciary

applies them to the specific cases arising out of the breach of law. Each organ

while performing its activities tends to interfere in the sphere of working of another

functionary because a strict demarcation of functions is not possible in their

dealings with the general public. Thus, even when acting in ambit of their own

power, overlapping functions tend to appear amongst these organs.

Though, just like American constitution, in Indian constitution also, there is

express mention that the executive power of the Union and of a State is vested by

the constitution in the President and the Governor, respectively, by articles 53(1)

and 154(1), but there is no corresponding provision vesting the legislative and

judicial powers in any particular organ. It has accordingly been held that there is no

rigid separation of powers. Although prima facie it appears that our constitution

has based itself upon doctrine of separation of powers. Judiciary is independent in

its field and there can be no interference with its judicial functions either by the

executive or the legislature. Constitution restricts the discussion of the conduct of

any judge in the Parliament. The High Courts and the Supreme Court has been

given the power of judicial review and they can declare any law passed by

parliament as unconstitutional. The judges of the S.C. are appointed by the


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President in consultation with the CJI and judges of the S.C. The S.C. has power to

make Rules for efficient conduction of business.

It is noteworthy that A. 50 of the constitution puts an obligation over state to take

steps to separate the judiciary from the executive. But, since it is a DPSP, therefore

its unenforceable.

In a similar fashion certain constitutional provisions also provide for Powers,

Privileges and Immunities to the MPs, Immunity from judicial scrutiny into the

proceedings of the house, etc. Such provisions are thereby making legislature

independent, in a way. The Constitution provides for conferment of executive

power on the President. His powers and functions are enumerated in the

constitution itself. The President and the Governor enjoy immunity from civil and

criminal liabilities. But, if studied carefully, it is clear that doctrine of separation

of powers has not been accepted in India in its strict sense. The executive is a part

of the legislature. It is responsible to the legislature for its actions and also it

derives its authority from legislature. India, since it is a parliamentary form of

government, therefore it is based upon intimate contact and close co-ordination

among the legislative and executive wings. However, the executive power vests in

the President but, in reality he is only a formal head and that, the Real head is the

Prime minister along with his Council of Ministers. The reading of Art. 74(1)

makes it clear that the executive head has to act in accordance with the aid and

advice given by the cabinet.

Generally the legislature is the repository of the legislative power but, under some

specified circumstances President is also empowered to exercise legislative

functions. Like while issuing an ordinance, framing rules and regulations relating

to Public service matters, formulating law while proclamation of emergency is in


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force. These were some instances of the executive head becoming the repository of

legislative functioning. President performs judicial functions also.

On the other side, in certain matters Parliament exercises judicial functions too. It

can decide the question of breach of its privilege, and in case of impeaching the

President; both the houses take active participation and decide the charges.

Judiciary, in India, too can be seen exercising administrative functions when it

supervises all the subordinate courts below. It has legislative power also which is

reflected in formulation of rules regulating their own procedure for the conduct and

disposal of cases

So, its quite evident from the constitutional provisions themselves that India,

being a parliamentary democracy, does not follow an absolute separation and is,

rather based upon fusion of powers, where a close co-ordination amongst the

principal organs is unavoidable and the constitutional scheme itself mentions it.

The doctrine has, thus, not been awarded a Constitutional status. Thus, every organ

of the government is required to perform all the three types of functions. Also,

each organ is, in some form or the other, dependant on the other organ which

checks and balances it. The reason for the interdependence can be accorded to the

parliamentary form of governance followed in our country. But, this doesntmean

that this doctrine is not followed in India at all.

Except where the constitution has vested power in a body, the principle that one

organ should not perform functions which essentially belong to others is followed.

This observation was made by the Supreme Court in the re Delhi Laws Act case,

wherein, it was held by a majority of 5:2, that, the theory of separation of powers is

not part and parcel of our Constitution. But, it was also held that except for

exceptional circumstances like in A. 123, A. 357, it is evident that constitution


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intends that the powers of legislation shall be exercised exclusively by the

Legislature.

As Kania, C.J., observed-

Although in the constitution of India there is no express separation of powers, it is

clear that a legislature is created by the constitution and detailed provisions are

made for making that legislature pass laws. Does it not imply that unless it can be

gathered from other provisions of the constitution, other bodies-executive or

judicial-are not intended to discharge legislative functions?

From the above explanation, it is seen that the power and the duty of the Judiciary

has been explained with clarity, i.e. to interpret the law. Thus, the function of the

judiciary can also be seen with equal clarity, If any entity looks to pass any law

that is outside the ambit of the interpretation of the law or ultra vires, then it is the

duty of the court to take corrective steps through the powers vested in it through

the various processes such as judicial review.

Validity of Constitutional amendments

The constitutional amendment in India is a justiciable issue and comes within the

purview of Judicial Review. Abuse of amending power is a great constitutional

vice and such abuse occurs when the people are deprived of their fundamental


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rights guaranteed by the constitution, when the limitations and formalities of the

constitutional amendments are not followed.

A summary of the challenge to the validity of constitutional amendments in India

can be tabulated as follows,

When the 1st Constitutional Amendment of 1951 was passed, its validity

was challenged in the Supreme Court. But the Supreme Court upheld the

validity of the Constitutional amendment14.

Six Writ Petitions were filed in the Supreme Court in 1964 to challenge the

validity of the Seventeenth Constitutional Amendment of 1964. These writ

petitions were heard by five Judges presided over by Chief Justice PB

Gajendragadkar, who gave the majority decision in October, 1964. The

Constitution Bench by the majority (5:2) held that the Seventeenth

Amendment of the Constitution was constitutionally valid and was not

violative of Art. 368. It was urged in this case to review the earlier decision

in Shankari Prasads case15, but on reconsideration of the matter, the

Supreme Court came to the same conclusion.

The matter of the validity of the constitutional amendment regarding

Fundamental Rights again came up before the Supreme Court in Golaknath

v. State of Punjab16 and the Supreme Court laid down the following

principles:

1. The fundamental rights have a transcendental position under the

constitution of India and are beyond the reach of the Parliament.

14Shankari Prasad Singh v. Union of India AIR 1951 SC 458

15Sajjan Singh v. State of Rajasthan AIR 1965 SC 845, para 47

16AIR 1967 SC 1643


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2.

The constitution by its scheme has given a place of permanence to

the fundamental freedoms. Parliament is incapable of modifying,

restricting or impairing fundamental rights.

3.

The question of the validity of a constitutional amendment is not a

political question and is the subject of Judicial Review.

4. The constitutional amendment has the force of law under Art. 13 (2)

of the Constitution and as such it comes under the area of Judicial

Review, and if the amendment interferes with the fundamental

rights, it is void.

5. The power of amendment of the constitution is derived by the

parliament from Art. 245, 246 and 248 of the constitution and not

from Art. 368 which deals with procedure. Thus, the amendment is

not a constitutional process, but it is a legislative process.

6. The Constitution ( 1stamendment) Act, 1951, The Constitution (4th

amendment) Act, 1955 and the Constitution (17thamendment) Act,

1964 are invalid but having been acquiesced for a long time by the

previous constitutional decisions, are deemed to be valid and are not

liable to be declared invalid.

7.

On the basis of the doctrine of Prospective Over-ruling, Parliament

shall have no right to amend the Constitution in future curbing the

fundamental Rights guaranteed in Part III of the Constitution.

8. The characteristics of the doctrine of Prospective Over-ruling were

defined as,

It can be invoked only in matters arising under the Constitution and

can be applied only by the Supreme Court. The nature of its


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application depends on the discretion of the Supreme Court in

accordance with justice of the case or matter before it.17

The decision of the Supreme Court in Golaknaths case had only a notional

effect and had no practical effect to redress the injury already caused by the

amendments. Of course, it put a restraint on the future actions of the Indian

Parliament.

The 24thamendment to the constitution provided that Art. 13 of the

constitution would not apply to any amendment made in the Constitution

under Art. 368. The constitutional validity of the 24thamendment was

questioned before the Supreme court in Keshavananda Bharati v. State of

Kerala18,

A larger bench of thirteen Judges upheld the validity of the Amendment in

the constitution. It was, however, held that the basic structure or

framework of the Constitution cannot be amended. The earlier decision in

I. C. Golaknath was hence over-ruled.

In a recent case, IR Coelho v. State of TN19

(9th

schedule case), the

principles laid down in the judgement of Keshavananda Bhartis case were

reiterated.

Other case that should be noted in the study of Judicial Review are,

Minerva Mills vs. Union of India20

It was observed by the Supreme Court that the clauses of art. 31-C as introducedby the Constitution (42nd Amendment) Act, 1976, which required to take away the

17In the decision given by Subba Rao, C.J. in Golaknaths case, para 51

18 AIR 1973 SC 1461, (1973) 4 SCC 225

19AIR 2007 SC 861, (2007) 2 SCC 1

20 AIR 1980 SC 1789


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power of judicial review were unconstitutional. However, judicial review was not

held to be part of the basic structure of the Constitution by the majority in this

decision, although Bhagwati J in his minority decision traced the power of judicial

review to Arts. 32 and 226 and observed it to be a part of the basic structure of the

Constitution, and if taken away by a constitutional amendment would amount to

subversion of the Constitution.

State of Madras v. V. G. Row21

Chief Justice Patanjali Shastri held that:

. Our Constitution contains express provision for judicial review of legislation

as to its conformity with the Constitution, If, then, the courts in this country face

up to such important and none too easy task, it is not out of any desire to tilt at

legislative authority in a crusader's spirit, but in discharge of a duty plainly laid

upon them by the Constitution. This is especially true as regards the 'fundamental

rights', as to which this court has been assigned the role of a sentinel on the qui

vive. While the court naturally attaches great weight to the legislative judgment, it

may not desert its own duty to determine finally the Constitutionality of an

impugned statute.

Section 15 (2) (b), Criminal Law Amendment Act, 1908 as amended by Madras

Act 1950 gave wide discretionary power to the State Government to declare any

association as unlawful. The Court Struck down the section as being

unconstitutional because it allows the administrative authority to exercise itsdiscretion on subjective satisfaction without permitting the grounds to be judicially

tested.

211952 SCR 597


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Indira Nehru Gandhi v. Raj Narain22

In this case relating to Indira Gandhis election as the Prime Minister of the

country, the constitutional validity of the Constitution (39 thamendment) Act, 1975

was challenged. The said amendment had the following provisions,

1. Article 71 has been substituted by a new Article 71. The new Article 71

states that subject to the provisions of the Constitution, Parliament may by

law regulate any matter relating to or connected with the election of a

President or Vice-President including the grounds on which such election

may be questioned.

2. The second feature is insertion of Article 329-A in the Constitution. Clause 4

of Article 329-A is challenged in the present appeals. There are six clauses

in Article 329-A.

I. The first clause states that subject to the provisions of Chapter II of

Part V (except Sub-clause (e) of Clause (1) of Article 102) no election

to either House of Parliament of a person who holds the office of

Prime Minister at the time of such election or is appoint ed as Prime

Minister after such election; and to the House of the People of a

person who holds the office of Speaker of that House at the time of

such election or who is chosen as the Speaker for that House after

such election, shall be called in question, except be fore such authority

(not being any such authority as is referred to in Clause (b) of Article329) or body and in such manner as may be provided for by or under

any law made by Parliament and any such law may provide for all

22AIR 1975 SC 2299


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other matters relating to doubts and dispute in relation to such election

including the grounds on which such election may be questioned.

II. Under the second clause the validity of any such law as is referred to

in Clause (1) and the decision of any authority or body under such law

shall not be called in question in any court.

III. The third clause states that where any person is appointed as Prime

Minister or, as the case may be, chosen to the office of the Speaker of

the House of the People, while an election petition referred to in

Article 329(b) in respect of his election to either House of Parliament

or, as the case may be, to the House of the People is pending, such

election petition shall abate upon such person being appointed as

Prime Minister or, as the case may be, being chosen to the office of

the Speaker of the House of the People, but such election may be

called in question under any such law as is referred to in Clause (1).

IV. The fourth clause which directly concerns the present appeals states

that no law made by Parliament before the commencement of the

Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it

relates to election petitions and matters connected therewith, shall

apply or shall be deemed ever to have applied to or in relation to the

election of any such person as is referred to in Clause (1) to either

House of Parliament and such election shall not be deemed to be void

or ever to have become void on any ground on which such election

could be declared to be void under any such law and notwithstanding

any order made by any court, before such commencement, declaring

such election to be void, such election shall continue to be valid in all

respects and any such order and any finding on which such order is


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based shall be and shall be deemed always to have been void and of

no effect.

V. The fifth clause states that any appeal or cross appeal against any such

order of any court as is referred to in Clause (4) pending immediately

before the commencement of the Constitution (Thirty-ninth

Amendment) Act, 1975, before the Supreme Court shall be disposed

of in conformity with the provisions of Clause (4).

VI.

The sixth clause states that the provisions of this Article shall have

effect notwithstanding anything contained in the Constitution.

The third feature in the Constitution (Thirty-ninth Amendment) Act is that

in the Ninth Schedule to the Constitution after Entry 86 and before the

Explanation several Entries Nos. 87 to 124 inclusive are inserted. The

Representation of the People Act, 1951, the Representation of the People

(Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 are

mentioned in Entry 87.

The respondent contended that the Representation of the People (Amendment) Act,

1974 and the Election Laws (Amendment) Act, 1975 referred to as the Amendment

Acts, 1974 and 1975 did not enjoy Constitutional immunity because these Acts

destroy or damage basic structure or basic features.

It was held that the concept of Judicial Review was inherent in the constitution and

that it was inalienable in the view of the basic structure of the Constitution. Theneed for Judicial Review is also found in the need to uphold the separation of

power.


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Other case of note that have discussed the validity and the functionality of Judicial

Review are,

Waman Rao v. Union of India23

In this case it was held that amendments to the Constitution made on or after 24thApril, 1973 by which the Ninth Schedule was amended from time to time by

inclusion of various Acts, regulations therein were open to challenge on the groundthat they, or any one or more of them, are beyond the constituent power of

Parliament since they damage the basic or essential features of the Constitution or

its basic structure.

S. P. Sampath Kumar v. Union of India24

The Supreme Court upheld the validity of art. 323-A and the Act as the necessary

changes suggested by the court were incorporated in the Administrative Tribunal

Act.

S.R. Bommai & Ors. v. Union of India & Ors.25,

It was reiterated that the judicial review is a basic feature of the Constitution and

that the power of judicial review is a constituent power that cannot be abrogated by

judicial process of interpretation. It has been observed that if by a ConstitutionalAmendment, the application of Articles 14 and 19 is withdrawn from a defined

field of legislative activity, which is reasonably in public interest, the basic

framework of the Constitution may remain unimpaired. But if the protection of

those Articles is withdrawn in respect of an uncatalogued variety of laws,

fundamental freedoms will become a parchment in a glass case to beviewed as a

matter of historical curiosity.

These observations are very apt for deciding the extent and scope of judicial

review in cases wherein entire Part III, including Articles 14, 19, 20, 21 and 32,stand excluded without any yardstick.

231981 2 SCR 1

241987 (1) SCC 124

25(1994) 3 SCC 1


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L. Chandra Kumarvs. Union of India26

An authoritative pronouncement on this aspect was rendered by a decision of seven

judges of the Supreme Court inL. Chandra Kumarvs. Union of India. Chief

Justice Ahmadi, speaking for all seven members of the bench, went into an

exhaustive review of all the developments in this regard, and held as under

"It is emphatically the province and duty of the judicial department to say what the

law is..... A law repugnant to the Constitution is void; ... courts as well as other

departments are bound by that instrument.

Justice Ahmadi then went on to examine whether the power of judicial review

vested in the High Courts and in the Supreme Court under articles 226/227 and 32

is part of the basic structure of the Constitution.,

The judges of the superior courts have been entrusted with the task of upholding

the Constitution and to this end, have been conferred the power to interpret it. It is

they who have to ensure that the balance of power envisaged by the Constitution is

maintained and that the Legislature and the executive do not, in the discharge of

their functions, transgress constitutional limitations

Responding to Justice Bhagwathis argument inMinerva Millsthat effective

alternate institutional mechanisms or arrangements to exercise the power of

judicial review could be created by Parliament; he put forth the followingargument.

The constitutional safeguards which ensure the independence of the judges of

the superior judiciary are not available to the judges of the subordinate judiciary

or to those who man tribunals created by ordinary legislations. Consequently,

judges of the latter category can never be considered full and effective substitutes

for the superior judiciary in discharging the function of constitutional

interpretation. We, therefore, hold that the power of judicial review over

legislative action vested in the High Courts under article 226 and in this court

under article 32 of the Constitution is an integral and essential feature of the

Constitution, constituting part of its basic structure. Ordinarily, therefore, the

26 (1997) 3 SCC 261


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power of the High Courts and the Supreme Court to test the constitutional validity

of legislations can never be ousted or excluded.

After Chandra Kumar, it is clear that judicial review is an integral part of the

Constitution; and the position is that even though tribunals may be created toadjudicate on various matters, the jurisdiction of the High Courts under Articles

226 and 227 and that of the Supreme Court under Article 32, wherein lies their

power to question executive and legislative judgment, and scrutinize executive

and legislative action vis--vis the Constitution, cannot be excluded even by a

constitutional amendment

Kihoto Hollohan v. Zachillu27

The present case, in unequivocal terms, is that of destroying the remedy by

enacting para 7 in the Tenth Schedule making a total exclusion of judicial reviewincluding that by the Supreme Court under Article 136 and the High Courts under

Articles 226 and 227 of the Constitution. But for para 7 which deals with theremedy and not the right, the jurisdiction of the Supreme Court under Article 136

and that of the High Courts under Articles 226 and 227 would remain unimpairedto challenge the decision under para 6, as in the case of decisions relating to other

disqualifications specified in clause (1) of Articles 102 and 191, which remedycontinues to subsist.

Schedule 9 of the Indian Constitution

271992. (1) SCR 686


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The philosophy underlying our Constitution goes back to the historic Objective

Resolution of Pt. Jawahar Lal Nehru adopted by the Constituent Assembly on

January 22, 1947, which inspired the shaping of the Constitution through all its

subsequent stages: 'The guarantee and security to all the people of India, justice,

social, economic and political; equality of status of opportunity, before the law;

freedom of thought, expression, belief, faith, worship, vocation, association and

action, subject to law and public morality was the objectives for drafting the

Constitution.'

The Constitution of 1949 had a threefold provision for safeguarding the right of

private property. It not only guaranteed the right of private ownership but also

right to enjoy and dispose of property free from restrictions other than reasonable

restrictions. Firstly, Art. 19 (1) (f) guaranteed to every citizen the right to acquire

any property by any lawful means such as inheritance, personal earnings or

otherwise, and to hold it as his own and to dispose it freely, limited to such

reasonable restrictions, which may not be in excess of the requirement of the

interest of the general public. Secondly, Art.31 (1) guaranteed that no person shallbe deprived of his property saved by the authority of law. Any property seized

without proper legal authority was to be released at the intervention of the Court.

A subject could not be deprived of his property by an executive order. Thirdly

Art.31 (2) enjoined that if the State wants to acquire private property, it could do so

by acquisition or requisition for public purpose and by payment to the owner by

fixing the amount or specifying the principle upon it, it is to be determined.

The development of the socialist order by the then government led by Pt. Jawahar

Lal Nehru was not possible without vast acquisition of land and for reorganisation

of agricultural holding. The right to property was a serious threat to socialistic

pattern of society. In Kameshwar v. State of Bihar (1951) Patna High Court held


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the Bihar Land Reforms Act unconstitutional. Allahabad and Nagpur upheld land

reforms, against which appeals were pending in Supreme Court. The Constitution

was amended.

The first constitutional amendment in 1951 exceptions was added to Art.31 (2) and

Art.31-A31-C were inserted. The first amendment also added in 9 thSchedule to

the Constitution with reference to Art.31-B purportedly to save those legislations

dealing with land reforms, which were struck down by the Court. The amended

Art.31-A provided that notwithstanding anything contained in Art.13, no law

providing for acquisition by the State of any estate or any rights, taking over of the

management of any property by the State for a limited period either in public

interest, or to secure proper management of the property, amalgamation of two

corporations in public interest or to secure proper management of any of the

corporations, the extinguishment or modification of any rights of managing agents,

secretaries and treasurers etc. and extinguishment or modification of any rights by

virtue of any agreement, lease or license for searching, or winning, mineral or

mineral oil or premature termination or cancellation of such agreement, lease orlicense, shall be deemed to be void on the ground that it is inconsistent with or

takes away or approaches any of the rights conferred by Art.14 or Art.19 of the

Constitution of India. The State law in this regard was to receive this status only

after receiving assent of the President.

Article 31-B validated certain acts and regulations if without prejudice to the

generality of the provision in Art.31-A they were put under 9th

Schedule, and thatthe provisions thereof shall not be deemed to be void on the ground that they are

inconsistent with, or take away or abridge any of the rights conferred by Part III of

the Constitution. The amendment saved the conflict of such legislations with

fundamental rights.


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The nine judges' Bench presided by Justice Y.K. Sabharwal, CJI delivered a

unanimous verdict on 11.1.2007 in I.R. Coelho (dead) by L.Rs. Vs. State of Tamil

Nadu and others28, upholding the 'Basic Structure Doctrine', and the authority of

the judiciary to review any such laws, which destroy or damage the basic structure

as indicated in Art.21 read with Art.14, Art.19 and the principles underlying

thereunder, even if they have been put in 9th Schedule after 14th April, 1973 (the

date of the judgment in Kesavananda Bharti's case). The judgment upholds the

right of judicial review and the supremacy of judiciary in interpreting the laws,

which have been constantly under threat. The judgment reiterates and defines the

exclusive right of the judiciary to interpret laws, in an ongoing struggle of

supremacy between legislative and judiciary since 26th Nov. 1949, when the

Constitution was dedicated to the people of India.

The Supreme Court held that if the validity of any 9th Schedule law has already

been upheld by this Court, it would not be open to challenge such law again on the

principles declared by this judgment. However, if a law is held to be violative of

any rights in Part III is subsequently incorporated in the Ninth Schedule after 24thApril, 1973, such a violation/ infraction shall be open to challenge on the ground

that it destroys or damages the basic structure as indicated in Article 21 read with

Article 14, Article 19 and the principles underlying thereunder.

28supra


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Administrative Law

The field of administrative law is broadly identified as the law relating to the

control of executive powers. It cannot be readily studied in water-tightcompartments and needs a working knowledge of many principles, precedents and

statutes. The main premise of course is that the functioning of the various

agencies and instrumentalities of the state should demonstrate a clear

commitment to fairness, impartiality and proportionality while maintaining

effective checks against arbitrariness and discrimination.While these theoretical premises may lend an air of uncertainty, the courts are

frequently called in to give them practical shape when they exercise judicialreview over the decisions of government departments, administrative agencies,

statutory corporations, regulatory authorities and quasi-judicial authorities among

others. The first inquiry is that of examining the competence of a particular body tocreate laws, rules, regulations and guidelines among others. In constitutional


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adjudication, the higher courts are often called on to examine the legislative

competence ofeither the Parliament or State Legislatures by deciding whether aparticular legislation was within their designated law-making powers, as per the

scheme of the Seventh Schedule of the Constitution. In the domain of

administrative law, the inquiry shifts to whether administrative bodies had theauthority to create rules and regulations or to pass orders on a particular subject.

However, the much broader inquiry relates to the second form of judicial reviewwhich involves the protection of fundamental rights. This empowers the higher

judiciary to examine administrative acts decide whether they are compatible withthe fundamental rights guaranteed to all citizens under Part III of our Constitution.

It is the Courts role of protecting fundamental rights, which has lead to the

evolution of some innovative remedies that have been created by harmoniouslyreading in long-established principles of administrative law.

Furthermore, the principles of natural justice have also been recognised as

dimensions of personal liberty and thereby applied to a wide variety ofadministrative settings. For example, the rule of audi alterempartem, i.e. no manshould be condemned unheard had historicallyevolved in the context of criminal

proceedings, wherein it was recognized that the accused should be given a fair

hearing which would give an opportunity to contest charges and rebut theprosecutions submissions. However, with the passage of time the right to a fair

hearing has also been allowed in the context ofadministrative proceedings where

parties are likely to face adverse civil consequences.In State of Orissa v. Dr. Binapani Dei29, it was held that administrative

orders which involve civil consequences have to be passed consistently with the

rules of natural justice. Irrespective of the fact that any statute provides the optionof a hearing or not, ordinarily such an opportunity must be given to the party

unless the same is expressly excluded by the applicable statute.It must be stressedhere that while exercising judicial review, the courts do not exercise ordinary

appellate powers. The intention isnot to take away the powers and discretion that

is properly vestedwith administrative authorities by law and to substitute the same

withjudicial determinations on specific facts. Judicial review is a protectionandnot an instrument for undue interference in executive functions.

Any administrative action can only be set aside when it is arbitrary,

irrational, unreasonable or perverse.In Delhi Development Authority v. M/s UEE Electricals Engg. Pvt. Ltd.30,

the Supreme Court made the following observations:

29AIR 1967 4 SC1269

30(2004) 11 SCC 213


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One can conveniently classify under three heads the grounds on which

administrative action is subject to control by judicial review. The first ground isillegality, the second irrationality, and the third procedural impropriety.

Courts are slow to interfere in matters relating to administrative functions unless

decision is tainted by any vulnerability such as, lack of fairness in the procedure,

illegality and irrationality. Whether action falls in any of the categories has to beestablished. Mere assertion in this regard would not be sufficient. The law is

settled that in considering challenge to administrative decisions courts will notinterfere as if they are sitting in appeal over the decision. He who seeks to

invalidate or nullify any act or order must establish the charge of bad faith, an

abuse or a misuse by the authority of its powers. It cannot be overlooked that

burden of establishing mala fides is very heavy on the person who alleges it. Theallegations of mala fides are often more easily made than proved, and the very

seriousness of such allegations demands proof of a high order of credibility.

Methods of Enforcement of Judicial Review

I. Nature and scope

The pre-dominant method of enforcement of constitutional right is through writs.

Art 32 and 226 of the Constitution have empowered the Supreme Court and high

courts to determine the question of constitutionality of legislative acts as well as

the administrative acts.

II. Writ jurisdiction under the Constitution

In the Constitution, the right to seek remedy for enforcement of Fundamental

Rights has itself been made fundamental. In India, mandamus or any other

appropriate writ can be issued against the Union or State Government. The

government is not immune from the writ. It can be issued for compelling the


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performance of the duty as well as forbidding from doing something which is

against the law.

III. Powers of Supreme Court

a). Art 32: Ambit and Scope

Under the Constitution of India, Supreme court is the coping stone of the

constitutional structure. Art 32 has to be known with Art 13. Art 13 is the

substantive provision and Art 32 lays down the procedure.

In fact, Art 13 is the part which relating to judicial review. Cl (1) of Art 32

guarantees the right to move to the Supreme Court for the enforcement of the

Fundamental Rights. Under Cl (2) the Supreme Court has the power to issue

directions or orders or writs. Cl (3) declares that without prejudice to the powers

conferred on the Supreme Court by Cl (1) and (2), Parliament may by law

empower any other court to exercise within its jurisdiction all or any power

exercisable by the Supreme Court.

b). Fundamental Considerations

1). A relief in the form of declaration accompanied with the relief of injunction can

be given if it be considered to be an appropriate relief31.

2). If a statute is ultra vires it can be so declared and the Supreme Court can

prohibit the enforcement of the ultra vires statute infringing the Fundamental

Right.

3). A petition cannot be refused merely on the grounds that wrong writ has been

prayed.

31KK Kochuni v. State of Madras AIR 1959 SC 725


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4). Art 32 does not give the Supreme Court the appellate jurisdiction as envisaged

in Art 136 to 139 of the Constitution.32

The case of Ujjam Bai v. State of Uttar Pradesh has been explained by

Justice Hidayatullah in the case of Coffee Board, Bangalore33.

Art 32 may be availed in the case of:

1. Where the decision is taken under ultra vires statute.

2. Where, although the statute is intra vires, the action is without jurisdiction.

3.

Where the principal of natural justice are violated.

4.

Whether Art 32 may be enforced against the judiciary.

The fourth point has been settled by a majority decision of the Supreme Court in

the case of Naresh Shridhar Mirajkar v. State of Maharashtra34 , the court held

that such a coarse was not available to the aggrieved party. In the same case

Hidayatullah j. gave the dissenting judgment, his line of approach was quite

different. He observed: when the High Court Judge acts collaterally to cause a

breach of Fundamental Right I am clear that an approach to this court is open

under Art 32.

IV.

Power of High Court

Art 226 is specially provided for the High Courts. Under Art226 High Court has

the power to issue any appropriate writ under the particular circumstances of the

case and for this purpose the High Court can examine the constitutionality of

statute which has been impugned on the grounds of violation of constitutional

32Ujjam Bai v. State of Uttar Pradesh AIR 1962 SG 1921

33Coffee Board Bangalore v. Joint Commercial Tax Officer AIR 1971 SC 870

34AIR 1967 SC I


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restriction and limitation, and the decision of the High Court may be final, if

there be no appeal in the Supreme Court.

Pre requisite for appealing in High Court under Art 226 is that there must have

been presence of a right35and it must have been infringed and the right infringed

must be a personal right36

Purposes of Judicial Review

i.

Objectives

The ostensible purpose of judicial review is to vindicate some alleged right of one

of the parties to litigation and thus to grant relief to the aggrieved party by

declaring an enactment void, if in law it is void, in the judgment of the court. But

the real purpose is something higher, ie, no statute which is repugnant to the

Constitution should be enforced by the Court of law. It is the most effective

process of adapting and adjusting the rights of the individuals and of the State.

ii.

Relieves strain on Legislature

Judicial review relieves the legislature of great responsibility and strain. Judicial

review of legislation, has been combined with the theory to set up an effective

system of checks and balances to restrict majority rulein favor of interest of

minorities.37

By judicial review the Legislature realizes its lapses and becomes alert against

future lapses.

35Calcutta Gas Co. v. State of WB, AIR 1962 SC 1044

36State of Punjab v. Suraj Prakash AIR 1963 SC 507

37Charles Grove Haines and Foster H Sherwood, The Role of the Supreme Court in American Government and

Politics,1835-1864, p. 287-8


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iii. Removes Misunderstanding

In India, the Constitution-makers visualized the great purpose of judicial review of

Legislative acts, without which the Indian democracy would not have thrived. The

Court of law have strengthened the hands of the law makers by declaring the

unconstitutional acts be it legislative or any other void.

iv.

Protects Individual Liberty

Judicial review has always saved individual liberty where the Constitution has

guaranteed it. it was realized that for a long time to come only one party would be

in power hardly any opposition and that democracy in India might have been

imperiled if a single party was given the power to rode rough shod over individual

rights and ignore the protests of those who did not belong to the party. Therefore,

even at the risk of slowing down the progress of the country, in interest of the

freedom and democracy, an independent impartial authority was constituted to act

as the arbitrator between the individual and the State and to adjudicate upon the

rights and liberties of the former and the security and interest of the latter.38

v.

Summary of the Purposes

The purposes of Judicial review in substance are:

1) To give relief to the aggrieved party.

2) To uphold the supremacy of the Constitution, so that legislative acts or

administrative acts repugnant to the Constitution are not enforced by the Court

of law.

3) To adjust the Constitution to the new conditions and needs of the time.

38MC Chagla, The Individual and the State, 1962, p. 15-16


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4)

To infuse into the Legislature and the Administration inspiration, alertness and

caution, to avoid mistakes and to confirm to the Constitution.

5) To set an effective system of checks and balances:

i)

Between the executive and the legislature.

ii)Between Union or Central Government and the States

iii)Between the State and State.

iv)

Between authority ant the liberty of the citizen.

v)

Between the rule of majority ant the rights of the minority and also of the

individuals.

6) To urge the lawmakers in assessing the political wisdom of each statute.

7) To force the lawmakers to follow another line of policy and thus cast a negative

influence on policy formation.

8) To uphold individual freedom and liberty.

9) To maintain the balance of equality as desired by the Constitution.

10) To protect the people from arbitrary actions of the executes under the

administrative law.

11)

To lead the country to social and economic up-lift.

12) To protect the people from arbitrary taxations and unconstitutional

acquisitions.


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Conclusion

After a reasonably detailed study of the above concepts, the amendments and the

cases stated therein, it is only natural come to the conclusion that the Indianconstitution holds the idea of Judicial Review in high esteem though legislations

over the time have shown that the same could not be upheld as there was a lack of

Judicial Activism at the earlier period of time. The Constitution of India has been

established as supreme and the basic structure that has been highlighted in the

Preamble of the same has been seen as utopian in nature thus keeping it out of the

ambit of any sort of legislation, it forms the guiding light for those who propound

the idea of Judicial review along with Part III of the constitution.


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Bibliography

Judicial Review of Legislative Acts, Dr C. D. Jha, second edition, 2009,

LexisNexis Butterworths Wadhwa The constitution law of India - Dr. J. N. Pandey

Constitution of India - M. P. Jain

Commentary on the constitution of India- Arvind Datar

Commentary on the constitution of India- D. D. Basu

Documents

Judicial Review and Schedule 9