Judicial Review

Judicial Review

  • Borrowed from American Constitution
    • Officially started in Madison vs Marbury case
  • In india, Constitution itself confers the power of judicial review on Judiciary (both in SC and HC)
  • Further SC has declared the power of Judicial review as Basic feature of Constitution 
  • Hence the power of Judicial review can’t be curtailed or excluded even by a Constitutional Amendment 
 
  • Judicial Review is the power of the Judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments 
  • Justice Syed Shah Mohamed Quadri classifed Judical Review as
    • Constitutional Amendments 
    • Legislation of Parliament 
    • Administrative action of the Union and the State
  • The term ‘Judicial Review’ has nowhere been used in Constitution, the provisions of several Articles explicitly confer the power of Judicial review on the SC and HC
    • In Article 13, 32, 226, 131-136, 143, 226-227, 245-246, 251, 254, 372 represent Judicial Review 
  • Importance of Judicial Review
    • To uphold the principle of the supremacy of the Constitution 
    • To maintain federal equilibrium 
    • To protect the Fundamental Rights of the citizens
  • Scope of Judicial Review
    • The constitutional validity of a legislative enactment or an executive order can be challenged in the SC or in HC on following grounds
      • It infringes the FR
      • It is outside the competence of the authority which had framed it
      • It is repugnant to the constitutional provisions 
    • It is based on procedure established by law
 
Judicial Review on 9th Schedule
  • Article 31B saves the Acts and Regulations included in the 9th Schedule from being challenged and invalidated on the ground of contravention of any FR
    • Article 31B along with 9th Schedule was added by 1st CAA, 1951
    • IR Coelho case, 2007
      • There couldn’t be any blanket immunity from Judicial Review of laws included in the 9th Schedule 
    • It said that the laws placed under 9th schedule after 24 Apr, 1973 are open to challenge in court if they violated Fundamental rights guaranteed under the Articles 14, 15, 19, 21 or the basic structure of Constitution 
 
Judicial Activism 
  • Origin
    • 1947 by Arthur Schlesinger Jr, an American historian and educator
    • In India, the doctrine of Judicial Review was introduced in mid 1970s
    • By Justice VR Krishna Iyer, Justice PN Bhagwati, Justice O Chinappa Reddy and Justice DA Desai
  • Meaning 
    • It is a proactive role played by Judiciary in the Protection of rights of citizens and in the Promotion of Justice in the society 
  • Justification
    • There is near collapse of the responsible government, when the Legislature and Executive fail to discharge their respective functions. This results in erosion of the Confidence in the Constitution and democracy amongst the citizens
    • There may be certain areas, which have not been legislated upon. It is therefore, upon court to indulge in judicial legislation and to meet the changing social needs
    • Constitution has itself adopted certain provisions, which gives judiciary enough scope to legislate or to play an active role
 
Judicial Restraint 
  • The Judiciary have the right to just check if the laws are constitutional or not
  • If Judiciary makes laws it violates Democracy since Judiciary is not elected body
  • SC observations
    • While delivering a judgement in Dec 2007, the SC called for Judicial Restraint and asked courts not to take over the functions of Legislature or Executive
  • Judge should not run the government
  • Judicial Activism must not become Judicial Adventurism 
  • Administrative authorities have the expertise in the field of administration while the courts does not have
  • When organs are not doing their jobs properly people will choose other person in election 
 
Public Interest Litigation
  • Traditional method of fighting for self or for individual in court is called Locus Standi
  • Fighting for public comes under PIL
  • Under the PIL, any public spirited citizen or a social organisation can move the court for the enforcement of the rights of any person or group of persons who because of their poverty or ignorance or socially or economically disadvantaged position are themselves unable to approach the court for the remedies 
  • SC has defined PIL as “a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of community have pecuniary interest or some interest by which their legal rights or liabilities are affected”
  • Purpose
    • Vindication of the rule of law
    • Facilitating effective access to justice to the socially and economically weaker sections of the society 
    • Meaningful realisation of the fundamental rights
  • Origin : US
  • Names 
    • Class Action Litigation
    • Social Interest Litigation
    • Social Action Litigation
  • Scope
    • Bounded Labour Matters
    • Neglected Children 
    • Non Payment of minimum wages 
    • Atrocities on women 
    • Environmental Pollution 
    • Harassment or torture of villagers 
    • Petitions from jails complaining of harassment 
    • Harassment by Police 
    • Petitions for Riot Victims 
    • Family Pensions 
  • Not Applicable 
    • Landlord-Tenant Matters
    • Service matters on Pensions and Gratuity
    • Admission to medical and other educational institutes 
    • Petitions for early hearing of cases pending in HC and SC
    • Complaints against Govt other than the above mentioned 
  • Features
    • It is the strategic arm of the legal aid movement and is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity 
    • PIL is brought before the court not for the purpose of enforcing the right of one individual against another, but it is intended to promote and vindicate public interest 
    • PIL demands that violations of constitutional and legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unrepressed 
    • In PIL, the role held by the court is more assertive than in traditional actions, it is creative rather than passive and it assumes a more positive attitude in determining acts 
    • In PIL, litigation is undertaken for the purpose of redressing public injury 
  • Principles 
    • The court in exercise of powers under Article 32 and 226 can entertain a petition filed by any interested person 
    • When the issues of public importance, enforcement of the Fundamental rights of large number of people, the court could treat a letter or telegram as a PIL
    • Whenever injustice is meted out to a large number of people, the court will not hesitate to step in to invoke Article 14 and 21 as well as International Conventions on Human Rights which provide for a reasonable and fair trail 
    • When the court in Prima Facie satisfied about violation of any right of group of people
    • Dispute between two groups privately is not PIL
    • First an individual case can turn into PIL if found many similar conditions (OMG movie)
    • The court in special situations may appoint Commission for investigation 
    • Ordinarily the HC should not entertain a writ petition by way of PIL questioning constitutionally or validity of statute or a statutory rule 
  • Guidelines 
    • Court must encourage genuine and bonafide PIL
    • Court should verify the credentials of the petitioner before entertaining PIL
    • Court shall satisfy the correctness of the contents 
    • Court should be fully satisfied that it is on public interest
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