Introduction
The aim of this
article is to understand and appreciate the role played by the Indian
judiciary in the establishment of an orderly and civilized society. The
article further attempts to trace and identify the true nature of
judicial review as prevailing in India.
A theme of uneasiness,
and even of guilt, colors the literature about the judicial review. Many
of those who have talked, lectured, and written about the Constitution
have been troubled by a sense that judicial review is “undemocratic”.
They argue that the strength of the courts has weakened other parts of
the government.
This legal debate raises the important and inevitable question that how
far this statement holds true about judicial review powers and
capacities of the Indian Judiciary.
The
Indian Constitution, like other written Constitutions, follows the
concept of “Separation of powers” between the three sovereign organs of
the Constitution. The doctrine of separation of powers stated in its
rigid form means that each of the organ of the Constitution, namely,
executive, legislature and judiciary should operate in its own sphere
and there should be no overlapping between their functioning. The Indian
Constitution has not recognized the doctrine of separation of powers in
its absolute form but the functions of the different organs have been
clearly differentiated and consequently it can very well be said that
our Constitution does not contemplate assumption, by one organ of the
functions that essentially belongs to another.
Though the Constitution has adopted the parliamentary form of
government, where the dividing line between the legislature and the
executive becomes thin, the theory of separation of powers is still
valid.
Independence of
Judiciary
Even though the Constitution of India does not accept strict
separation of powers, it provides for an independent judiciary with
extensive jurisdiction over the acts of the legislature and the
executive.
Independent judiciary is the most essential attribute of rule of law and
is indispensable to sustain democracy. Independence and integrity of the
judiciary in a democratic system of government is of the highest
importance and interest not only to the judges but also to the people at
large who seek judicial redress against perceived legal injury or
executive excess. Judicial review is the basic structure, independent
judiciary is the cardinal feature, and an assurance of faith enshrined
in the Constitution. The need for independent and impartial judiciary is
the command of the Constitution and call of the people. The subordinate
judiciary is a complement to constitutional courts as part of the
constitutional scheme and plays a vital part in dispensation of justice.
Thus, subordinate courts are integral part of the judiciary under the
constitution.
In
Ajay Gandhi v B.Singh
the Supreme Court extended the “theory of independence” to Tribunals
performing judicial functions. The court observed: “The functions of the
Tribunal being judicial in nature, the public have a major stake in its
functioning, for effective and orderly administration of justice. A
Tribunal should, as far as possible, have a judicial autonomy. The
relevant provisions have conferred a statutory power upon the president
to constitute Benches. The appellate Tribunal is a National Tribunal.
The President, subject to delegation of powers senior Vice- President or
the Vice-President, exercises the administrative control over the
members thereof. The benches are to be constituted only by the
President. No other authority is empowered to do so. Keeping in view the
fact that the independence of the Tribunal is essential for maintaining
its independence, any power which may be conferred upon the executive
authority must proved to be in the interest of imparting justice. We are
of the view that this long-standing practice should be allowed to
prevail over the stand of the respondents herein. However, we are of the
opinion that by reason thereof, the President cannot be said to have an
unguided, unfettered and unlimited jurisdiction as the same may be
flawed with great consequences”.
Scope and components
of judicial review
Broadly speaking,
judicial review in India comprises of three aspects: judicial review of
legislative action, judicial review of judicial decisions and judicial
review of administrative action. 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 functions, transgress constitutional limitations.
Thus, judicial review is a highly complex and developing subject. It has
its roots long back and its scope and extent varies from case to case.
It is considered to be the basic feature of the Constitution. The court
in its exercise of its power of judicial review would zealously guard
the human rights, fundamental rights and the citizens’ rights of life
and liberty as also many non-statutory powers of governmental bodies as
regards their control over property and assets of various kinds, which
could be expended on building, hospitals, roads and the like, or
overseas aid, or compensating victims of crime.
In
U.O.I v K.M.Shankarappa
the Supreme Court held that the provision for revision by Central
Government of decisions of the Appellant Tribunal under Section 6(1) of
the Cinematograph Act, 1952 is unconstitutional. The Supreme Court
observed:
“The Government has
chosen to establish a quasi-judicial body which has been given the
powers, inter alia, to decide the effect of the film on the public. Once
a quasi-judicial body like the Appellate Tribunal gives its decision,
that decision would be final and binding so far as the executive and the
government is concerned. To permit the executive to review or revise
that decision would amount to interference with the exercise of judicial
functions by a quasi-judicial board. It would amount to subjecting the
decision of a quasi-judicial body to the scrutiny of the executive.
Under the Indian Constitution, the executives have to obey the judicial
orders. Thus, Section 6(2) is a travesty of the rule of law, which is
one of the basic structures of the Constitution. The legislature may, in
certain cases, nullify a judicial or executive decision by enacting an
appropriate legislation. However, without enacting an appropriate
legislation, the executive or the legislature cannot set at naught a
judicial order. The executive cannot sit in an appeal or review or
revise a judicial order. At the highest, the government may apply to the
Tribunal itself for a review, if circumstances so warrant. But the
government would be bound by the ultimate decision of the Tribunal”.
In the
landmark judgment of P.U.C.L v U.O.I
Justice Shah observed: “The legislature in this country has no
power to ask the instrumentalities of the State to disobey or disregard
the decisions given by the courts. The legislature may remove the
defect, which is the cause for invalidating the law by the court by
appropriate legislation if it has power over the subject matter and
competent to do so under the Constitution. The primary duty of the
judiciary is to uphold the Constitution and the laws without fear or
favour, without being biased by political ideology or economic theory.
Interpretation should be in consonance with the constitutional
provisions, which envisage a republic democracy. Survival of democracy
depends upon free and fair election. It is true that political parties
fight elections, yet elections would be farce if the voters were unaware
of antecedents of candidates contesting elections. Such election would
be neither free nor fair”.
These
bold words of Justice Shah reflect the status, which the Indian
judiciary is holding in the Indian Constitutional set up. The
constitution makers have reposed great confidence and trust in Indian
judiciary by conferring on it such powers as have made it one of the
most powerful judiciary in the world. The Supreme Court has from time
to time indulged in genuine and needful judicial activism and judicial
review. It gave birth to the famous and most needed “Doctrine of basic
Structure”. The need of the changing society encouraged it to formulate
and incorporate various theories, which originated outside India. One of
such theory, which has great practical and social significance in India,
is the “Doctrine of proportionality”. The said doctrine originated as
far back as in the 19th century in Russia and was later
adopted by Germany, France and other European countries. By
proportionality, it is meant that the question whether while regulating
the exercise of fundamental rights, the appropriate or least restrictive
choice of measures has been made by the legislature or the administrator
so as to achieve the object of the legislation or the purpose of the
administrative order, as the case may be. Under the principle, the court
will see that the legislature and the administrative authority maintain
a proper balance between the adverse effects which the legislation or
the administrative order may have on the rights, liberties or interests
of persons keeping in mind the purpose for which they were intended to
serve.
The
court as far back as in 1952 in State of Madras v V.G.Row
observed: “ The test of reasonableness, wherever prescribed, should be
applied to each individual statute impugned, and no abstract standard,
or general pattern of reasonableness can be laid down as applicable to
all the cases. The nature of right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and urgency
of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at that time, should all enter the
judicial verdict. In evaluating such elusive factors and forming their
own conceptions of what is reasonable, in all the circumstances of a
given case, it is inevitable that the social philosophy and the scale of
values of the judge participating in the decision would play an
important part, and limit to their interference with legislative
judgment in such cases can only be dictated by their sense of
responsibility and self-restraint and the sobering reflection that the
Constitution is meant not only for people of their way of thinking but
for all, and the majority of the elected representatives of the people
have, in authorizing the imposition of the restrictions, considered them
to be reasonable”.
Ever
since 1952, the principle of proportionality has been applied vigorously
to legislative and administrative action in India. Thus, administrative
action in India affecting the fundamental rights has always been tested
on the anvil of the proportionality in the last 50 years even though it
has not been expressly stated that the principle that is applied is the
proportionality principle.
In
Om Kumar v U.O.I,
however, the Apex Court evolved the principle of primary and secondary
review. The doctrine of primary review was held to be applicable in
relation to the statutes, statutory rules, or any order, which has force
of statute. The secondary review was held to be applicable inter alia in
relation to the action in a case where the executive is guilty of acting
arbitrarily. In such a case Article 14 of the Constitution of India
would be attracted.
In relation to other administrative actions, as for example punishment
in a departmental proceeding, the doctrine of proportionality was
equated with Wednesbury’s unreasonable.
In
Delhi Development Authority v M/S UEE Electricals Engg.P.Ltd
the Supreme Court dealt with the judicial review of administrative
action in detail. The court observed: “One can conveniently classify
under three heads the grounds on which administrative action is subject
to control by judicial review. The first ground is “illegality”, 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 be established. Mere assertion in
this regard would not be sufficient. The law is settled that in
considering challenge to administrative decisions
courts will not interfere 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. The
allegations 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”.
The
administrative orders must also satisfy the rigorous tests of the
“doctrine of legitimate expectation”. The principle of legitimate
expectation is at the root of the rule of law and requires regularity,
predictability and certainty in government’s dealings with the public.
For a legitimate expectation to arise, the decisions of the
administrative authority must affect the person by depriving him of some
benefit or advantage which either:
(i) he had in the past
been permitted by the decision maker to enjoy and which he can
legitimately expect to be permitted to continue to do until there has
been communicated to him some rationale grounds for withdrawing it or
where he has been given an opportunity to comment; or
(ii) he has received
assurance from the decision maker that they will not be withdrawn
without giving him first an opportunity of advancing reasons for
contending that they should not be withdrawn.
The
procedural part of it relates to a representation that a hearing or
other appropriate procedure will be afforded before the decision is
made. The substantive part of the principle is that if a representation
is made than a benefit of substantive nature will be granted or if the
person is already in receipt of the benefit than it will be continued
and not be substantially varied, then the same could be enforced. An
exception could be based on an express promise or representation or by
established past action or settled conduct. The representation must be
clear and unambiguous. It could be a representation to an individual or
to a class of persons”.
Another
effective tool in the hands of judiciary, to test the validity of
legislation, is to invoke the principle of “reading down”. The rule of
reading down a provision of the law is now well established and
recognized. It is a rule of harmonious construction in a different name.
It is resorted to smoothen the crudities or ironing the creases found in
a statute to make it workable. In the garb of reading down, however, it
is not open to read words or expressions not found in it and thus
venture into a kind of judicial legislation. The rule of reading down is
to be used for the limited purpose of making a particular provision
workable and to bring it in harmony with other provisions of the
statute. It is to be used keeping in view the scheme of the statute and
to fulfill its purposes.
In
B.R.Enterprises v State of U.P
the Supreme Court observed: “First attempt should be made by the courts
to uphold the charged provisions and not to invalidate it merely because
one of the possible interpretation leads to such a result, howsoever
attractive it may be. Thus, where there are two possible
interpretations, one invalidating the law and the other upholding, the
latter should be adopted. For this, the courts have been endeavoring,
sometimes to give restrictive or expansive meaning keeping in view the
nature of the legislation. Cumulatively, it is to sub serve the object
of the legislation. Old golden rule is of respecting the wisdom of the
legislature, that they are aware of the law and would never have
intended for an invalid legislation. This also keeps the courts within
their track and checks. Yet inspite of this, if the impugned legislation
cannot be saved, the courts shall not hesitate to strike it down. Here
the courts have to play a cautious role of weeding out the wild from the
crop, of course, without infringing the Constitution. The principle of
reading down, however, will not be available where the plain and literal
meaning from a bare reading of any impugned of any impugned provision
clearly shows that it confers arbitrary or unbridled power”
It must be
appreciated that a statute carries with it a presumption of
constitutionality. Such a presumption extends also in relation to a law,
which has been enacted for imposing reasonable restrictions on the
fundamental rights. A further presumption may also be drawn that the
statutory authority would not exercise the power arbitrarily.
Further, where a power is conferred upon a higher authority, a
presumption can be raised that he would be conscious of his duties and
therefore will act accordingly.
These presumptions have to be rebutted before an allegation of
unconstitutionality of a statute can be sustained.
Limits of Judicial
Review
It is
true that the courts have wide powers of judicial review of
Constitutional and statutory provisions. These powers, however, must be
exercised with great caution and self-control. The courts should not
step out of the limits of their legitimate powers of judicial review.
The parameters of judicial review of Constitutional provisions and
statutory provisions are totally different. In J.P.Bansal v State
of Rajasthan
the Supreme Court observed: “It is true that this court in interpreting
the Constitution enjoys a freedom which is not available in interpreting
a statute. It endangers continued public interest in the impartiality of
the judiciary, which is essential to the continuance of rule of law, if
judges, under guise of interpretation, provide their own preferred
amendments to statutes which experience of their operation has shown to
have had consequences that members of the court before whom the matters
come consider to be injurious to public interest. Where the words are
clear, there is no obscurity, there is no ambiguity and the intention of
the legislature is clearly conveyed, there is no scope for the court to
innovate or to take upon itself the task of amending or altering the
statutory provisions. In that situation the judge should not proclaim
that they are playing the role of lawmaker merely for an exhibition of
judicial valour. They have to remember that there is a line, though
thin, which separates adjudication from legislation. That line should
not be crossed or erased. This can be vouchsafed by an alert recognition
of the necessity not to cross it and instinctive, as well as trained
reluctance to do so”.
If case
the court forgets to appreciate this judicial wisdom, it would undermine
the constitutional mandate and will disturb the equilibrium between the
three sovereign organs of the Constitution. In State (Govt of NCT
of Delhi) v Prem Raj
the Supreme Court took a serious note of this disturbing exercise when
the High Court commuted the sentence by transgressing its limits. The
court observed:
“The power of
commutation exclusively vests with the appropriate government. The
appropriate government means the Central government in cases where the
sentence or order relates to a matter to which the executive power of
the Union extends, and the state government in other cases. Thus, the
order of the high Court is set aside”.
Similarly, in Syed T.A. Haqshbandi v State of J&K
the Supreme Court observe: “Judicial review is permissible only
to the extent of finding whether the process in reaching the decision
has been observed correctly and not the decision itself, as such.
Critical or independent analysis or appraisal of the materials by the
court exercising powers of judicial review unlike the case of an
appellate court would neither be permissible nor conducive to the
interests of either the officer concerned or the system and
institutions. Grievances must be sufficiently substantiated to have firm
or concrete basis on properly established facts and further proved to be
well justified in law, for being countenanced by the court in exercise
of its powers of judicial review. Unless the exercise of power is shown
to violate any other provision of the Constitution of India or any of
the statutory rules, the same cannot be challenged by making it a
justiciable issue before the court”.
The
courts are further required not to interfere in policy matters and
political questions unless it is absolutely essential to do so. Even
then also the courts can interfere on selective grounds only. In
P.U.C.L v U.O.I
the Supreme Court observed: “This court cannot go into and examine
the need of Prevention of Terrorism Act. It is a matter of policy. Once
legislation is passed, the government has an obligation to exercise all
available options to prevent terrorism within the bounds of the
Constitution. Moreover, mere possibility of abuse cannot be counted as a
ground for denying the vesting of powers or for declaring a statute
unconstitutional”.
Similarly, in U.O.I. v International Trading Co
the Supreme Court observed: “Article 14 of the Constitution applies
also to matters of government policy and if the policy or any action of
the government, even in contractual matters, fails to satisfy the test
of reasonableness, it would be unconstitutional. While the discretion to
change the policy in exercise of the executive power, when not trammeled
by any statute or rule is wide enough, what is imperative and implicit
in terms of Article 14 is that a change in policy must be made fairly
and should not give the impression that it was so done arbitrarily or by
any other ulterior criteria. The wide sweep of Article 14 and the
requirement of every state action qualifying for its validity on this
touchstone, irrespective of the field of activity of the state, is an
accepted tenet. The basic requirement of Article 14 is fairness in
action by the state, and non-arbitrariness in essence and substance is
the heartbeat of fair play. Every state action must be informed by
reason and it follows that an act uninformed by reason is per se
arbitrary”.
Similarly, where a political question is involved, the courts normally
should not interfere. It is also equally settled law that the court
should not shrink its duty from performing its functions merely because
it has political thicket.
Thus, merely because the question has a political complexion that by
itself is no ground why the court should shrink from performing its duty
under the constitution if it raises an issue of constitutional
determination. Every constitutional question concerns the allocation and
exercise of governmental power and no constitutional question can,
therefore, fail to be political. So large as a question arises whether
an authority under the Constitution has acted within the limits of its
power or exceeded it, it can certainly be decided by the court. Indeed
it would be its constitutional obligation to do so.
In
B.R.Kapur v State of T.N
the Supreme Court held that it is the duty of the court to interpret
the Constitution. It must perform the duty regardless of the fact that
the answer to the question would have a political effect.
Concluding remarks
The role model for governance and
decision taken thereon should manifest equity, fair play and justice.
The cardinal principle of governance in a civilized society based on
rule of law not only has to base on transparency but also must create an
impression that the decision-making was motivated on the consideration
of probity. The government has to rise above the nexus of vested
interests and nepotism and eschew window-dressing. The act of governance
has to withstand the test of judiciousness and impartiality and avoid
arbitrary or capricious actions. Therefore, the principle of governance
has to be tested on the touchstone of justice, equity and fair play.
Though on the face of it the decision may look legitimate but as a
matter of fact the reasons may not be based on values but to achieve
popular accolade that decision cannot be allowed to operate.
The
Constitution of India envisages separation of power between the three
organs of the Constitution so that the working of the constitution may
not be hampered or jeopardized. This thin and fine line of distinction
should never be ignored and transgressed upon by any of the organ of the
Constitution, including the judiciary. This rigid perception and
practice can be given a go by in cases of “abdication of duties” by one
of the organ of the Constitution. Thus, the judiciary can interfere if
there is an abdication of duties by the legislature or the executive.
For instance, if the legislature delegates its essential and
constitutional functions to the executives, it would amount to
“excessive delegation” and hence abdication of the legislative functions
by the legislature. In such cases, the theory of separation of powers
would not come in the way of judiciary while exercising the power of
judicial review.
This is
more so, when the Constitution makers have conferred the important
sovereign function of interpretation of the constitution and various
statutes upon the judiciary. The Constitutional courts can even
scrutinize the working of the lower courts besides analyzing legislative
and executive actions. The superior courts, like High Courts and the
Supreme Court, can issue various writs to control the functioning of
lower judiciary. Besides, the High Court has supervisory jurisdiction
over the lower courts. However, the High court cannot issue a writ
against another High court. Similarly, the decision of the High Court or
the Supreme Court cannot be questioned by way of a writ proceeding.
Thus, a final decision of the Supreme Court cannot be questioned under
Article 32 of the constitution of India, except by way of review
petition. The Supreme Court in Rupa Ashok Hurra v Ashok Hurra
has judicially created an exception to this rule in the form of a
“curative petition”. Thus, a curative petition can be filed before the
Supreme Court under Article 32 in appropriate cases. The Supreme Court
only in exceptional cases would exercise this power. This fantastic
judicial innovation is based on the premises that no person should
suffer due to the mistake of the court. Similarly, an order passed by
the court without jurisdiction is a nullity and any action taken
pursuant thereto would also be nullity. A party cannot be made to suffer
adversely either directly or indirectly by reason of an order passed by
any court of law, which is not binding, on him.
The
power to entertain a curative petition is not specifically conferred by
the Constitution but can be exercised by the apex court under its
inherent powers. This means that the Constitution is organic and living
in nature. It is also well settled that the interpretation of the
Constitution of India or statutes would change from time to time. Being
a living organ, it is ongoing and with passage of time, law must change.
New rights may have to be found out within the constitutional scheme. It
is established that fundamental rights themselves have no fixed content;
most of them are empty vessels into which each generation must pour its
contents in the light of its experience. The attempt of the court should
be to expand the reach and ambit of the fundamental rights by process of
judicial interpretation. There cannot be any distinction between the
fundamental rights mentioned in Chapter III of the Constitution and the
declaration of such rights on the basis of the judgments rendered by the
Supreme Court.
Thus, horizons of constitutional law are expanding. In State of
Maharashtra v Dr Praful . B. Desaithe
Supreme Court observed: “It is presumed that the Parliament intends the
court to apply to an ongoing Act a construction that continuously
updates its wordings to allow for changes since the Act was initially
framed. While it remains law, it has to be treated as always speaking.
This means that in its application on any day, the language of the Act
though necessarily embedded in its own time, is nevertheless to be
construed in accordance with the need to treat it as a current law”.
At this
stage the words of Justice Bhagwati in the case of National
Textiles Workers Union v P.R.Ramakrishnan
need to be set out. They are: “We cannot allow the dead hand of
the past to stifle the growth of the living present. Law cannot stand
still; it must change with the changing social concepts and values. If
the bark that protects the tree fails to grow and expand along with the
tree, it will either choke the tree or if it is a living tree it will
shed that bark and grow a living bark for itself. Similarly, if the law
fails to respond to the needs of changing society, then either it will
stifle the growth of the society and choke its progress or if the
society is vigorous enough, it will cast away the law, which stands in
the way of its growth. Law must therefore constantly be on the move
adapting itself to the fast-changing society and not lag behind”.
It is
further trite that the law although may be constitutional when enacted
but with passage of time the same may be held to be unconstitutional in
view of the changed situation.
These changed circumstances may also create a vacuum in the legal
system, which has to be suitably filled up by the legislature. If the
legislature fails to meet the need of the hour, the courts may interfere
and fill-in the vacuum by giving proper directions. These directions
would be binding and enforceable in law until suitable legislation is
enacted to occupy the field.
Thus, directions given by the court will operate only till the law is
made by the legislature and in that sense temporary in nature. Once
legislation is made, the court has to make an independent assessment of
it. In embarking on this exercise, the points of disclosure indicated by
this court, even if they be tentative or ad hoc in nature, should be
given due weight and substantial departure there from cannot be
countenanced.
The courts may also rely upon International treaties and conventions for
the effective enforcement of the municipal laws provided they are not in
derogation with municipal laws.
The
above discussion unerringly points towards the permissibility and
democratic nature of the judicial review in India. The judicial review
in India is absolutely essential and not undemocratic because the
judiciary while interpreting the constitution or other statutes is
expressing the will of the people of India as a whole who have reposed
absolute faith and confidence in the Indian judiciary. If the judiciary
interprets the Constitution in its true spirit and the same goes against
the ideology and notions of the ruling political party, then we must not
forget that the Constitution of India reflects the will of the people of
India at large as against the will of the people who are represented for
the time being by the ruling party. If we can appreciate this reality,
then all arguments against the democratic nature of the judicial review
would vanish. The judicial review would be undemocratic only if the
judiciary ignores the concept of separation of powers and indulges in
“unnecessary and undeserving judicial activism”. The judiciary must not
forget its role of being an interpreter and should not undertake and
venture into the task of lawmaking, unless the situation demands so. The
judiciary must also not ignore the self-imposed restrictions, which have
now acquired a status of “prudent judicial norm and behaviour”. If the
Indian judiciary takes these two “precautions”, then it has the
privilege of being the “most democratic judicial institution of the
world, representing the biggest democracy of the world”.
