Constitutional Law: Doctrine of Judicial Review
Author: Kunal Jain
Symbiosis Law School, NOIDA
ISSN: 2581-8465
Abstract
Judicial Review is the power vested with the courts by which they control the exercise of governmental power & also ensure that the public bodies like local authorities, tribunals, etc. exercise their powers in a lawful manner. There have been a lot of cases where the parliament has made laws which are not in compliance with the constitution & are against public policy as well. So, Judicial Review is the key through which the courts had been from time to time declared some laws unconstitutional as they were not in compliance with the constitution. Constitutional judicial review is usually considered to have begun in the case of Marbury vs. Madison, 1803 which for the first time held that the SC of the United States had the power to invalidate legislation enacted by the court. And from that judicial review was adopted to India. Judicial review is specifically not mentioned anywhere in the constitution of India but its principles are laid down in Article 13 of the Constitution. Thus, there are 3 main points which have been considered by the courts in all the cases of judicial review which were:-
- That the constitution is the supreme law of the land.
- If a law conflicts with the constitution, the constitution rules.
- The judicial branch has a duty to uphold the constitution. Thus must be able to determine whether a law conflicts with the constitution & nullify that law.
Introduction: What is the Doctrine?
Judicial review is basically the special powers given to courts to declare any laws which are not in line with the principles enshrined in the constitution, unconstitutional. As was held in the case of Marbury Vs Madison, 1803 in which the court said that the judicial review gives the courts the power to examine the laws & actions of local, state & national government & to cancel them if they violate the guidelines mentioned under the constitution. Thus, accordingly, courts have the special power to check the constitutionality of laws & of all the actions taken by the parliament & henceforth determine that the acts of the legislature or the executive are consistent with the constitution or not, & can declare any law made by the parliament unconstitutional if not in conscience with the constitutional values.
Principles of the doctrine of judicial review are mentioned in Article 13 of the constitution which clearly says that the all the laws in force if are inconsistent with the provisions as are mentioned in the constitution of India, will be considered void & the state shall not make any laws which are inconsistent or takes away the rights of the people.
Evolution of the Doctrine
From time to time the courts have interfered with the laws made by the parliament in order to protect the rights of the people due to which the doctrine of judicial review has evolved. The concept of judicial review has now evolved into three categories
- In order to protect the rights as mentioned under part III of the constitution.
- To authorize the disinterest of organizational achievement.
- Interrogation of public interest.
Features of Judicial Review
· Judiciary as the interpreter & protector of the constitution (Judicial Review of Administrative Actions)
The Supreme Court acts as the interpreter & protector of the constitution & in order to protect the fundamental rights & freedom of the people, & hence exercise the doctrine of judicial review. Article 226 read with Article 32 of the constitution provides gives special powers to the courts to issue writs, & the administrative action or the policy such taken is subject to judicial review if it is illegal or inconsistent with the constitution of India & also the courts are just concerned about the fairness of the policy.
Also in the case of Delhi Development Authority, N.D. and Ors. Vs. Joint Action Committee, Allottee of SFS Flats and Ors.[i], courts held some main points on which every policy decision of the government & its authorities are subject to judicial review. The court, in this case, laid 4 grounds which were:
- If the policy so made is unconstitutional as per the laws of India.
- If the laws or the policy so made is outside the provisions of the laws & regulations.
- If the person is the delegatee or having such authority has acted beyond his/her power of delegation.
- If the policy so made is contrary to the statutory policy.
· Provisions of law to be termed void, if against Part III of the constitution (Judicial Review of Legislative Actions)
Article 13 (2) of the constitution states that the state shall not make any laws takes away the rights of the people, & if any law if such made, will be considered to be void. The doctrine of severability comes into actions which state that the law made by the parliament is termed to be void if it is in derogation with Article 13 of the constitution. But court if it feels that the part which is legal & the part which is unconstitutional cannot be separated.
As was held in the case of State of Madhya Pradesh vs. Ranojirao Shinde and Ors.[ii], it was held that the doctrine of severability is only applicable only if it is possible to separate the legal part from the portion which is termed as unconstitutional & if such separation is not possible, the entire provision made will have to be struck down as unconstitutional.
· Judicial Review during the suspension of Article 19 under the proclamation of emergency (Judicial Review of Judicial Decisions)
It is a well-stated fact that every law or provision made by the government & its officers must be supported by a valid legislative authority and if any law is unconstitutional as under Article 13 of the constitution, the state cannot claim immunity if it tries to revive such law.
As was held in the case of State of Madhya Pradesh and Ors. vs. Thakur Bharat Singh[iii], where the court held that an act, which is void as conflicting with the fundamental rights of the people will not be revived by the subsequent issue of the proclamation of emergency. Article 358 cannot validate any legislative provisions in contravention of the constitution. Hence, if the law passed by the state does not support any valid legislation, it can’t be validated by Article 358 even if the Article says that there will be a suspension of provisions of Article 19 during emergencies.
In another case of Swadeshi Cotton Mills Co. Ltd. vs. Sales Tax Officer and Ors.[iv], it was held that even if there is a suspension of Article 19 during the proclamation of emergencies, courts can take judicial notice of & disallow complaints of violations of Article 19 &can exercise its jurisdictions under Article 226.
· Judicial Review against illegal detention
Courts have the jurisdiction to allow all the writs of Habeas Corpus made under Article 226 against illegal detentions if the person so claiming to be illegally detained is successfully able to prove it. And if the person is illegally detained or arrested he has the Locus Standi to approach the court.
In the following case of Des Raj Pathak vs. Union of India (UOI) and Ors.[v], where the court held that the principles of illegality are not abrogated, & if the aggrieved person can show that he is detained or arrested illegally or not as under the provisions of law, he has the locus standi to approach the court for proper relief.
· Basic Structure doctrine for the parliament
The basic structure doctrine applies to all the constitutional amendments, which states that the parliament cannot destroy or alter the basic features of the constitution which includes Supremacy of law, separation of power, etc. This concept was developed with the interference of the judiciary to protect the rights of the people.
Landmark judgements
1. Golaknath vs. the State of Punjab:–
The court, in the case of Golaknath Vs the State of Punjab[vi], held that the parliament could not amend the constitution to take away the fundamental rights of the people. This judgement forbade the parliament to cause any further damages to Part III of the constitution which defines the fundamental rights of the citizens by laying down a law which had the effect to suppress the parliament. This case is the best description of the rule of law which says that even the lawmakers are not above the law i.e. there is a supremacy of law.
2. Kesavananda Bharti Vs State of Kerala:–
In this case of Kesavananda Bharti Vs State of Kerala[vii], the court agreed that the parliament is not restricted to amend the constitution, but also put a caveat of the basic structure doctrine on it. The court observed that the constitutional amendments are to be done keeping in mind the basic structure of the constitution. Since this case, the basic structure doctrine now forms the basis of special power of the Indian Judiciary to review & strike down any amendments which were in the conflict with the basic structure doctrine.
3. Minerva Mills vs. UOI:–
The courts in the case of Minerva Mills Vs Union of India[viii], further observed that the tool of the amendment cannot be used to destroy the constitution since, parliament, in this case, introduced Article 368(4) which deprived the courts the power of judicial review over all the constitutional amendments & Article 368(5) which gave the parliament unlimited power to amend the constitution according to its needs & as per Article 368 (4) courts have no right of judicial review over any amendment as such made. Court Struck down Article 368(5) stating that the parliament has only limited amending power & cannot enlarge this limited power into absolute power. And Article 368(4) also because it will destroy the basic structure doctrine. Hence, both the clauses were held to be unconstitutional.
Limits of the Courts in Judicial Review
· Limits of the courts to issue writs
Courts have the rights to issue writs against the government if it is persuaded by the fact that the policy or the decision or the law so made is in regard to illegality or is unconstitutional. The courts only concern when it comes to the judicial review is the fairness of the decision-making process.
As was held in the case of N. Dolendra Prasad vs Government of Andhra Pradesh and Ors.[ix], it was held by the court that the administrative action is subject to judicial review only in regard to illegality or irrationality & the courts are just concerned about the fairness of the decision-making process. And the court cannot strike down a policy just because it is persuaded by the fact that another decision might be even fairer or wiser.
In another case of N. Loganathan and Ors. Vs. P. Elango and Ors.[x], where the court clearly stated that the only area where the courts can review is to find out that the policy decision taken by the government is legal or constitutional, & if nothing is shown that the decisions Such taken is arbitrary or unconstitutional, the court will have no choice but to dismiss the petition.
So, as per the case laws mentioned above, it can be inferred that the judicial review will only be taken by the courts if they are persuaded that the decision so taken is against statutory provisions or illegal or unconstitutional.
· Limits of the courts to make judgements under Article 13 of the Constitution
The courts have the power to make any law void if it persuaded by the fact that the law such made is inconsistent with the laws of the constitution. But the court cannot prevent the legislation to not enact that law. Also, the courts cannot declare any law void just after it was put into effect.
As was held in the case of Chotey Lal vs. The State of Uttar Pradesh and Ors.[xi], where the courts interpreted Article 13(2) stating that the words “shall not make any law” does not mean that the legislation can be prevented from enacting any law by a proceeding in the court. It was held that it is not the function of the court to declare any law void the instance it has been promulgated.
· Limits of the courts under the Defense of India Act during emergencies
The Defense of India Act, 1915 gives the executive wide powers of preventive detention to prevent the person or a group of persons to commit any further offence. In these cases, courts do not have the jurisdiction to entertain such petitions of detentions under this act.
In the case of Makhan Singh vs. the State of Punjab (and connected appeals)[xii], where it was held that a person detained under Defense of India Act cannot question the validity of the act nor can he challenge the detention on the ground of infringement of rights under part III of the constitution. But he can challenge the ground of detention on the basis that it is not in accordance with the mandatory provisions of the Defense of India Act or is mala fide.
Conclusion
Judicial Review can be understood as a court proceeding under which the fairness or the constitutionality of a decision is reviewed by the judge. The concern for the judicial review is just that whether the decisions have been applied correctly with & whether the right procedures have been followed. And if not, the courts will have special powers to review the decision and term it as unconstitutional if not in accordance with the constitution of India. There is no direct mention of judicial review anywhere in the constitution of India but Article 13 of the constitution lays down the principles of judicial review which empowers the courts to check on actions of the administration.
[i] Delhi Development Authority, N.D. and Ors. Vs. Joint Action Committee, Allottee of SFS Flats and Ors., AIR 2008 SC 1343
[ii] State of Madhya Pradesh vs. Ranojirao Shinde and Ors., AIR 1968 SC 1053
[iii] State of Madhya Pradesh and Ors. vs. Thakur Bharat Singh, AIR 1967 SC 1170
[iv] Swadeshi Cotton Mills Co. Ltd. vs. Sales Tax Officer and Ors., AIR 1965 All 86
[v] Des Raj Pathak vs. Union of India (UOI) and Ors., ILR 1976 5 HP 715
[vi] Golaknath vs. the State of Punjab, AIR 1967 SC 1643
[vii] Kesavananda Bharti Vs State of Kerala, AIR 1973 SC 1461
[viii] Minerva Mills vs. UOI, AIR 1980 SC 1789
[ix] N. Dolendra Prasad vs Government of Andhra Pradesh and Ors, 2005 (1) ALD 545
[x] N. Loganathan and Ors. Vs. P. Elango and Ors., (2001) 3 MLJ 113
[xi] Chotey Lal vs. The State of Uttar Pradesh and Ors., AIR 1951 All 228
[xii] Makhan Singh vs. the State of Punjab (and connected appeals), AIR 1964 SC 381