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Jagran Lakecity University

School of law

Assignment

Judicial review in India

Paridhi Shrivastava

BBA.LL.B(Hons.)

4th semester
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DECLARATION

I hereby declare that the work done in the project is my own

and no part of the project is made in an unauthorized manner.

No path has been included without prior acknowledgement of the respective faculty.
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Table of contents

Chapter 1

Introduction

Chapter 2

 judicial review object

 doctrine explained

 analysis

 judicial review and India

Chapter 3

Analysis

Chapter 4

Conclusion

 bibliography

 references
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Scope of judicial review in India and its related provisions

Introduction

Review of literature

Judicial Review is the reassessment of the legality of actions or decisions made by those in

position of public authority or bodies. The action or decision in question is brought before a

Judge in court proceedings where the lawfulness of the decision is tested. The main purpose

of Judicial Review is to ensure that public authorities do not act in excess of their powers and

this explanation is supported in the following words of Sedley J “the purpose of Judicial

Review is to ensure that government is conducted within the Law".

Concept of judicial review

According to dictionary meaning “judicial review” is a procedure by which a court can

pronoinve on an administrative action by a public body.1

The Judiciary plays a very important role as a protector of the constitutional values that the

founding fathers have given us. They try to undo the harm that is being done by the

legislature by the legislature and the executive and also they try to provide every citizen what

has been promised by the Constitution under the Directive Principles of State Policy. All this

is possible thanks to the power of judicial review.2

1
Administrative power over persons and property (1928).
2
Gurrum ramachandran rao, judicial review in India, mondaq , apr. 10 2003.
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Judicial review may be defined as a “court’s power to review the actions of other branches of

government, especially the courts power to invalidate legislative and executive actions as

being unconstitutional.3

Judicial review is a great weapon in the hands of judges. It comprises the power of a court to

hold unconstitutional and unenforceable any law or order based upon such law or any other

action by a public authority which is inconsistent or in conflict with the basic law of land.4

Broadly speaking, judicial review in India deals with three aspects:

I) Judicial review of legislative action

II) Judicial review of judicial decision, and

III) Judicial review of administrative action. Here we are concerned with the last

aspect, namely, judicial review of administrative action.5

The rule of law is the bedrock of democracy, and the primary responsibility for

implementation of the rule of law lies with the judiciary.1 this is now a basic

feature of every constitution, which cannot be altered even by the exercise of new

powers from parliament. It is the significance of judicial review, to ensure that

democracy is inclusive and that there is accountability of everyone who wields or

exercises public power. As Edmund Burke said: "all persons in positions of power

ought to be strongly and lawfully impressed with an idea that "they act in trust,"

and must account for their conduct to one great master, to those in whom the

political sovereignty rests, the people".6

3
Black law’s dictionary (8th edn.) 864.
4
Hnery Abraham cited in L. Chandra Kumar v. Union of India, (1997)3 SCC 26I, 292 AIR I997 II25.
5
L. Chandra Kumar v. Union of India (1997) 3 SCC 26I, 292.
6
Anupa V. Thapliyal, "Central Administrative Tribunals and Their Power to Issue Directions, Orders or Writs
under Articles 226 and 227 of the Constitution", (1992) 4 SCC.
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Judicial review: Object

The underlying object of judicial review is to ensure that the authority does not abuse its

power and the individual receives just and fair treatment and not to ensure that the authority

reaches a conclusion which is correct in the eye of law.7

As observed by the Supreme Court in Minerva Mills Ltd. V. Union of India 8, the

constriction has created an independent judiciary which is vested with the power of judicial

review to determine the legality of administrative action and the validity of legislation. It is

the solemn duty of the judiciary under the Constitution to keep different organs of the state

within the limits of the power conferred upon them by the Constitution by excersing power of

judicial review as senitel on the qui vive. Thus, judicial review aims to protect citizens from

the abuse or misuse of power by any branch of the State.

Judicial quest matters is to strike the just balance between the administrative discretion to

decide matters as per government policy, and the need of fairness .Any unfair action must be

set right by administrative review.9 Judicial review provides time for”sober second thought”.

7
Cheif Console Of the North Wale Police v. Evans, (I982) I WLR II55.
8
(I980) SCC 625
9
Tata cellular v. Union of India, (1994) 6 SCC 651 : AIR 1996 SC 13.
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DOCTRINE EXPLAINED

Discretion implies power to make a choice between an alternative course of action or

inaction. A public officer has discretion whenever the effective limits of his power leave him

free to make a choice among the possible courses of action or inaction.10

The principle of judicial review became an essential feature of written Constitutions of many

countries. Seervai in his book Constitutional Law of India noted that the principle of judicial

review is a familiar feature of the Constitutions of Canada, Australia and India, though the

doctrine of Separation of Powers has no place in strict sense in Indian Constitution, but the

functions of different organs of the Government have been sufficiently differentiated, so that

one organ of the Government could not usurp the functions of another.11

JUDICIAL REVIEW: analysis

Judicial review of administrative action perhaps the most important development in the field

of public law in the second half of this century. In India, the doctrine of judicial review is the

basic feature of our Constitution. Judicial review is the most potent weapon in the hands of

the judiciary for the maintenance of the rule of law .Judicial review is the touchstone of the

Constitution.

The Supreme Court and High Courts are the ultimate interpreters of the Constitution .It is,

therefore their duty to find out the extent and the limits of the power of coordinate branches,

viz.executive and legislature and to see that they do not transgress their limits. This is indeed a

10
K.C. Davis, discretionary justice (1969) 4.
11
H.M. Seervai, Constitutional Law of India, 3rd ed., Vol. 1, N.M. Tripathi Private Ltd. Bombay, 1983, p. 237.
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delicate task assigned to the judiciary by the Constitution .Judicial review is thus the

touchstone and essence of the rule of law12.

The power of judicial review is an integral part of our constitutional system and without it,

there will be no government of laws and the rule of law would become a teasing illusion and

a promise of unreality. The judicial review therefore is a basic and essential feature of the

constitution and it6 cannot be abrogated without affecting the basic structure of the

constitution.13

In judicial review, the court is not concerned with the merits or correctness of the decision,

but with the manner in which the decision is taken or order is made. A court of law is not

exercising appellate power and it cannot substitute its opinion for the opinion of the authority

deciding the matter. The areas where judicial power can operate are limited to keep the

executive and legislature within the scheme of division of powers between three organs of the

state. The ultimate scope of judicial review depends upon the facts and circumstances of each

case. The dimensions of judicial of judicial review must remain flexible.14

It is a cardinal principle of our constitution that no one howsoever highly placed and no

authority loftily can claim to be the sole judge of its power under the constitution. The rule of

law requires that the exercise power by the legislature or by the judiciary or by the

government or by any other authority must be conditioned by the constitution. Judicial review

is thus the touchsome and repository of the supreme law of the land. It is a vital principle

principle of our constitution which cannot be abrogated without affecting the basic structure

of the constitution.15

12
R.K. jain vs. Union of india (1993). 4 SCC 119.
13
Ibid.
14
R.B. Shreeram durga Prasad v. Settlement commission (IT and WT) , (1989).
15
S.R. Bommai v. Union of india , (1994).
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In recent, judicial review of administrative action has become extensive and expensive. The

traditional limitations have vanished and the sphere of judicial scrutiny is being expanded.

Under the old theory, the courts used to exercise power only in cases of absence or excess or

abuse of power. As the state activities have become pervasive and giant public corporation

has come in existence, the stake of public exchequer justifies larger public audit and judicial

control.16

Judicial review and India

Judicial review of administrative action is perhaps the most important development in the

field of public law in the second half of the 20th century. In India, the doctrine of the judicial

review is the basic feature of our constitution. It is the most potent weapon in the hands of the

judiciary for the maintenance of the rule of law. It is also touchstone of the constitution. The

Supreme Court and the high courts are the ultimate interpreters of the constitution. It is

therefore, their duty to find out the extent and limits of the power of coordinated branches,

viz. Executive and legislature and to ensure that they do not transgress their limits. This is

indeed a delicate task assignment to the judiciary by the constitution. Judicial review is thus

the touchsome and essence of the rule of law.17

The power of judicial review is an integral part of the constitution system and without it,

there will be no government of laws and the rule of law will become a teasing illusion and a

promise of unreality. Judicial review, therefore, is a fundamental and essential feature of the

constitution and it cannot be abrogated without affecting the basic structure of the

constitution.18

16
Star enterprises v. City and industrial development corp. Of Maharashtra ltd. (1990).
17
R.K. Jain v. Union of India (1993) 4 SCC 119.
18
Ibid.
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India opted for parliamentary form of democracy, where every section is involved in policy-

making and decision making, so that every point of view is reflected and there is a fair

representation of every section of the people in every such body. In this kind of inclusive

democracy, the judiciary has a very important role to play. That is the concept of

accountability in any republican democracy, and this basic theme has to be remembered by

everybody exercising public power, irrespective of the extra expressed expositions in the

constitution.19

The underlying years of the Supreme Court of India saw the appropriation of an approach

described by alert and carefulness. Being saturated with the British custom of constrained

legal audit, the Court by and large embraced a professional lawmaking body position. This is

obvious frame the decisions, for example, A.K. Gopalan, yet anyway it didn't enjoy yearn for

judges to reprieve their shackles and this prompted a progression of ideal to property cases in

which the legal was loggerhead with the parliament. The country saw a progression of

occasions where a choice of the Supreme Court was trailed by an enactment invalidating its

impact, trailed by another choice reaffirming the prior position, et cetera. The battle between

the two wings of government preceded on different issues, for example, the energy of altering

the Constitution. Amid this period, the Legislature looked to deliver individuals arranged

communist measures which when in strife with central rights were disappointed on the

maintaining of the principal privileges of people by the Supreme Court. At the time, an

exertion was made to extend the Supreme Court as being concerned just with the interests of

propertied classes and being inhumane to the necessities of the majority. In the vicinity of

1950 and 1975, the Indian Supreme Court had held a minor one hundred Union and State

laws, in entire or to some extent, to be illegal.

After the period of emergency the judiciary was on the receiving end for having delivered a

series of judgments which were perceived by many as being violative of the basic human

rights of Indian citizens 7and changed the way it looked at the constitution. The Supreme

Court said that any legislation is amenable to judicial review, be it momentous amendments20

to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect

the life of a citizen.21

Bibliography

 Administrative law

C.K. Takwani

5th edition

Eastern book company

Reference

 Indiakanoon.com

 Legallyservicesindia.com

 Legalindia.com

 Manupatra

 SSRN

20
Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458;.
21
M.C. Mehta v. Union of India, (1996) 4 SCC 351.