Reviewed by the judiciary

  • Nirmalendu Bikash Rakshit | New Delhi

    March 30, 2017 | 03:24 AM
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As a stark reality, the term ‘Judicial Review’ has not found its place in our written Constitution. But significantly it is one of the salient features of our Constitutional system. It means that the Supreme Court can examine whether or not the executive and the legislative organs of the Government have used their authority without violating the Constitutional scheme. In other words, it is a judicial power to be exercised in order to keep other organs within their defined orbit.
In fact, it has been eagerly borrowed from America. But, even in America, the term judicial review is unknown to the written Constitution. It was Chief Justice John Marshall who enunciated this doctrine in the celebrated case of Madison V. Marbury (1803). According to him, the Constitution was the paramount law of the land and the Judges had to take an oath to defend, preserve and protect it. So it was exclusively the province and duty of the judiciary to say what the law was and to set it aside if it was found to be inconsistent with and contrary to the written Constitution. In other words, it means that a law repugnant to the Constitution is unconstitutional and void – (JP Rache – John Marshall, p. 91).

Similarly, in case an executive order unduly transgresses upon the Constitution, it must be regarded as ultra vires. In short, by this review authority, the Supreme Court examine the acts of two other organs of the Government and nullifies any law or order whenever it allegedly goes against the letter and spirit of the Constitution. In this way, the judiciary becomes the interpreter and guardian of the Constitution.

As Leslie Lipson has aptly pointed out, judicial review means that all laws and orders of two branches of the Government must conform to the Constitution and that the Judges will decide whether they do conform or not – (The Great Issues of Politics, p. 257).

Of course, the concept of judicial review gradually found favour with some other countries like India which have accepted it in right earnest. Thus, though the Indian Constitution has largely followed the British model, it has not accepted the British principle of ‘Parliamentary Sovereignty’. As AV Dicey has pointed out, the British Parliament is ‘sovereign’ in the sense that it can – i) pass any and every law, ii) change or modify any law and iii) amend any portion of the Constitution. So no court of Britain can by any means interfere with its legislative or constituent authority in any way.

But, our Constitution has been framed in a quite different way. As Dr MV Pylee has held, "our Supreme Court is the guardian of the Constitution and the laws of the land" – (An Introduction to the Constitution of India, p. 192). So, of its own right, it can duly quash a law or order if it, in its view, infringes upon the Constitution (Art. 32). Significantly, the High Courts also possess such a stupendous power under Art. 226 of the Constitution.

Thus, our judiciary can determine the Constitutional propriety of any law of the legislature or an act of the executive and, in that sense, judicial review is explicit in the Constitution of India. This is why neither a legislature nor an executive body can travel beyond its defined jurisdiction. In such case, the superior courts are sure to set aside such law or act. Particularly, as Art. 13 (2) enjoys, the legislature or executive can by no means affect or damage any fundamental right enshrined in chapter III.

But, at the same time, it must be carefully noted that the scope of judicial review in India is not as wide as that of America. The American Constitution has declared that ‘No person shall be deprived of his life, liberty and property without due process of law.’ But Art. 21 of our Constitution has, as in Japan, deliberately used the term ‘without procedure established by law.’ The difference in the phraseology is crucial and significant.

Thus, as Dr HH Das points out, the American Supreme Court extends its jurisdiction over both matters of legislative procedure and also matters of substantive law – (India: Democratic Government and Politics, p. 226). So the Supreme Court can see whether the law has been duly enacted and it can also examine the nature of the law. In other words, it not only considers the procedure of the making of the law – it can also nullify a law on the ground that it does not conform to the standard of ‘natural justice.’

But our Supreme Court can only see whether or not a law has been properly enacted or whether it has directly transgressed a written provision of the Constitution. But it can, by no means, go beyond and question whether the law itself is good or bad. This is why, Dr BC Rout has opined that our Constitution has not granted absolute or unlimited power of review to the judiciary – (Democratic Constitution of India, p. 168). So if a legislature can tactfully pass an oppressive or unjust law without infringing upon any provision of the Constitution, it is surely intra vires of the Constitution.

In this sense, writes Dr SC Kashyap, the Constitution of India has arrived at a middle course and a clever compromise between the British sovereignty of Parliament and American Judicial Supremacy – (Our Constitution, p. 47). In other words, our Constitution has wonderfully struck a balance in distributing powers among the organs of Government. Thus, within their specific territories, the legislature and the executive organs can act independently – but if they arbitrarily cross the limit, the judiciary can step in for the greater interests of the people.

It seems that the Founding Fathers in India could not entirely rely upon man’s purity and honesty. They knew that many black sheep would come up in the legislative and executive arena and in this way society would be poisoned by selfishness and greed of their leaders.

But they solemnly intended to create a state based upon liberty, equality, law and justice. This is why, they sought to curb the legislative and executive authority by due interference of the judges carefully chosen for their impartiality, wisdom, maturity and integrity. But, at the same time, they apprehended that even the judiciary might, due to human frailties, unduly overstep its defined jurisdiction. For this reason, they have kept some specific areas for the legislature and the executive where they can act independently.

As DD Basu points out, in England, the birth of democracy was due to the protest against the royal absolutism and people felt that parliamentary sovereignty was the only solution of the problem. But the makers of the American Constitution, on the other hand, had the painful experience that even a representative body might be tyrannical and, hence necessary control over the popular leaders was eminently necessary. So, while the British people, in their gallant fight for freedom against the monarchical autocracy, happily stopped with the establishment of the supremacy of Parliament, Americans went a step further in order to keep it within a safe limit – (Introductions to the Constitution of India, p. 35-36).

The Indian Constitution, very wisely, adopted a middle course and, with consummate care and splendid tact, distributed power among the organs of Government in order to preserve life, liberty, equality and justice in the polity.

The writer is an Author, Griffith Prizeman and Former Reader, New Alipore College.

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