4.

JUDICIAL REVIEW: AN INDIAN

PERSPECTIVE

The principle pronounced by the Chief Justice Coke, the legitimacy of the
legislation in numerous cases was confronted strongly in colonial courts. Afterward,
the United State of America created legal standards beforehand the world as a novel
outline of republic. The judicial review, within could act as a commanding checked
on the republic in contrast to disintegrating obsessed by monocracy and give in to the
rule of oppression. India has incorporated into her Constitution itself, the provision of
the judicial review. The Indian Constitution has its uniqueness and individuality.
Patanjali Shastri, the Chief Justice of Indian Supreme Court remarked while
the judiciary logically involved a countless heaviness to the jurisdictive verdict. The
judiciarycannotrecompenseitspersonalresponsibilitytoregulate to
finishconstitutionalityof atestedlegislation. Henceforth, we have laid down the
innovative criterions of statutory rules in the contemporary world.219

4.1 Judicial Views of India

Under the Constitution of India Act, 1935, which generated centralized court
held its abiding influence. The Act was visualized clearly the centralized arrangement
of govt., which demarcated compasses of the statute, between the federal units and
Centre. It was felt necessity for creating all India court to adjudicate on the conflict
claim, with particular reference to the three lists between federal states and the
Centre. The federal States form the provincial territory of the legislative jurisdiction.
220

The disunion of controls among states government the central government

and the are significant structures of the federal system; where there is dissemination
of powers among the states and Centre, there will be dispute. Therefore, to become
entirely peaceful these difference of opinion and outline careful province of powers
between the federal states and the Centre, there must be a proper, fair and legal
authority.
To interpret the constitutional powers through other organs of the
government, there is the federal judiciary. The disputes raised between the States and
the Centre, and between States and State, the judiciary is the fair institution, which is
legitimate and authorized to interpret the Constitution, in relation to resolve the
dispute fairly. 221

4.1.1 Supremacy of Indian Judiciary

The gradual development of judicial assertion of supremacy can be perceived
through the inspection of law case of the S.C.I. meanwhile freedom frontwards. In
the early decades the Supreme Court took very cautions, modest and slow steps.
However, at the same time, it was persistent and secured development of
jurisprudence and judicial supremacy.
In relation to the question of law and fact, which has the nature of public
reputation, mentioned to the judiciary by the Indian President, for judgement and
deliberation. The S.C.I. has played unique role by providing legal advice to the
President of India. The court has the powers to safeguard the constitutional
supremacy by interpreting and allowing provisions of work in respect of entirely
establishments inside the legitimate background. The judiciary has occupied yourself
actual imperative starring role in the issue of federation and the State, where the
dispute has raised between the State and Centre. 222
The conflict between the Allahabad High Court and the Legislative Assembly
of Utter Pradesh come formerly with the S.C.I. The judiciary permits the application
of aggrieved person challenging sentence forced on him by the Assembly of
Legislation, below the opening of its privilege. The court had directed to discharge the
distressed individual on surety. The Legislative Assembly considered the contempt
action against the judge and the lawyer concerned, who stimulated to the High Court.
The Assembly of Legislative and its officers, who took steps on this matter, the High
Court issued restrictive order.
When the conflict was arisen on this stage. It was than referred to the Indian
President under Article one hundred fourty-three, requesting interrogations,
approximately the dispute. Where was the contempt taken place, outdoor or within the
four-wall of the Assembly? Whether the Legislature Assembly was exclusive and sole
judge of the issue? To inforce its decision whether the Assembly issued unspeaking or
general warrant? Where was the contempt committed? 223
The case of C. Golaknath (1967), was very important for judicial review under
constitutional development. In this case the State government of Punjab declared 418
acres’ surplus land, leaving for all heirs share only of 30 acres. The C. Golaknath
challenged Punjab land Act, 1953 under Article thirty-two of the Indian Constitution
in the Supreme Court on the based that identical fortification of rule and fairness
beforehand rule. The government had denied to acquire property and practice any
profession of the people under fundamental rights. The Supreme Court of India
declared Ist, 4th and 17th amendment Acts, and therefore of Punjab Land Act, 1953
which had placed it under ninths Scheduled of the Indian Constitution, as ultra vires.
This case complicated dualistic interrogations, under Article thirteen (two),
that any legislation which takings absent or condenses right after the essential rights
of the person, the State shall not make any such law, so the constitutional
modification Act is a rule under Article thirteen (two). There is indirect restriction on
the altering control of the parliament of India. That the essential rights are the
elementary construction of the Constitution. Henceforth, the parliament cannot alter
the elementary construction of the Indian Constitution. 224
A bench of eleven judge, which had corrected and considered the view, in case
of Sajjan Singh (1965) A.I.R. 1965 SC 845 and earlier in case of Sankari Prasad
(1951), A.I.R. 1951 SC 458 detained that the modification of the Constitution is law,
if abbreviates, the privileges replicated in Part three of the Constitution, it is void. It is
vibrant from the day of the verdict of the S.C.I. The Parliament has no mechanism to
225
change Part three of the Constitution, which abridges the essential rights.
Chief Justice, Indian Supreme Court Justice Gajendra Gadkar who was the
writ in their majority opinion held that the legitimacy of the confinement of a
individual punished by the Assembly, the High Court is permitted to divert Appeal of
habeas corpus. The court further held that the legitimacy of the sentence of
imprisonment enforced by Assembly on Keshav Singh, the court had passed order to
release him. Justice Sarkar writing in his rebellious opinion, stated that in case, where
interference was certainly avoidable and not justifiable. The instruction of the High
Court was to frustrate the right of legal action of the Assembly. 226
In case of Keshavanand Bharathi v. State of Kerala (1973), the thirteen judge
bench of the S.C.I. absolute that the Parliament has the widespread mechanism to
proceeds absent the indispensable privileges, if necessary, by amending the Article
three hundred sixty-eight of the Indian Constitution. Out of thirteen judges, six
learned judges supported the legitimacy of 29th Modification of the Constitution, they
did not subsidize to the elementary structure principle. The six other knowledgeable
judges supported 29th Modification of the Constitution, theme to passing the
rudimentary structure. The thirteenth learned judge, Justice Khanna supported the 29th
Modification decided with six leaned judges that was not possibilities to the guideline
of elementary structure.
Justice Khanna appropriated the dissimilar opinion and detained that
Parliament has complete control to modify the Constitution, but Parliament essential
authority into which the elementary construction of the Constitution. Under constraint
of the Parliament influence, the judicial assessment derives under the elementary
construction of the Indian Constitution. It has conceded the rule as per the opinion of
the single judge of Justice Khanna.227
In the case of Sankari Prasad (1951), it was held by six judge bench, five
judges not agreed to amending the essential rights under the Indian Constitution.
However, in case of Keshavanand Bharti (1973), six judges out of seven judges held
that Parliament modifying influence has and at all portion of the Constitution can be
amended and over ruled the Golaknath case. The Supreme Court held that the
essential rights cannot be modified in such a method, which will touch the elementary
construction of the Constitution.
The most recent improvement in I. R. Coelho v. State of Tamil Nadu (2007),
was seen from Keshvanand Bharti (1973) case in which the cases like Chandra
Kumar v. Union of India and others (1997), Waman Rao and others v. Union of India
and others (1981), Minerva Mills Ltd. and others v. Union of India (1980), Indira
Nehru Gandhi v. Raj Narnia (1975), where judicial review was considered as
essential and integral Part of the Constitution of India. 228
In exercise of jurisdiction of review, the gradual empowerment of Indian
judiciary has caused in jurisdictive intervention, by the privilege powers of the Indian
President and the State’s Governor, to endowment mercy and abandon or to decrease
judgement in criminal cases. It was said in the case of Swaran Singh v. State of U.P.
(1988), 8 S.C.C.16l, P.171 and Satpal v. State of Haryana (2000),5 S.C.C.170. The
Indian Supreme Court has expanded the views of life imprisonment through judicial
review. In Swami Shradhanand v. State of Karnataka (2008),13 S.C.C. 767 case in
the matter of sentencing, the constitutional philosophy and statutory provision, the
court has innovated the interpretation of the life sentence till death. The area of
judicial review where it was not worked out to be practicable and did not generate
legislation, but generates pure and simple rules of the legislation. This development of
judicial review was felt appropriate and opened to less criticism. 229
In the case of Badrinath v. Government of Tamil Nadu and others (2000),
there was fit case for applying the doctrine of Wednesbury, in which the Indian
Supreme Court did not go into the interrogation of accuracy. That valuation
completed by the Departmental Selection Committee. This is the intension of the
tribunal or the court that cannot interfere in respect of fitness for promotion.
The Supreme Court stated that when the valuation of Departmental Promotion
Committee is irrelevant and if an attitude was applied to not given weightage of
positive on one’s carrier, it is the destruction of essential rights under Article sixteen
of the Indian Constitution. In such a case the aggrieved person may approach to the
High Court, under Article two hundred twenty-six of the Indian Constitution. 230
In case of non-exercise or application of the control of pardon by the Governor
or the President of India, it was not protected from the judicial review. However, in
certain cases restricted judicial review is existing. To award reduction in the verdict of
governor was not recognized by the S.C.I. Although the S.C.I. has also vulnerable in
the powers of proper government for reduction of verdicts.
It was held in case of Mitthu v. State of Punjab (1983), that the S.C.I. has
struck down Section 303 of Indian Penal Code, 1860. This section had made death
sentence mandatory. In case Article twenty-one of the Indian Constitution was
illustrated by the S.C.I. complete its frequent pronouncement.
The S.C.I., earlier had expounded same scope under Article twenty-one of the
Constitution in Manaka Gandhi case and Bachan Singh case. The judiciary specified
it is now too late for the day of scrap, that it is to the lawmakers to make available the
sentence and the duty of the court is to enforce it. However, it is for the lawmakers to
recommended the technique and requirement of judiciary to fallow it. 231
Justice Krishna Iyer in case of G. Krishna Goud v. State of Andhra Pradesh
(1976), expressed his frustration. He stated that as a citizen we can rewrite the law,
but as the judge we never rephrase the legislation, although our opinions are
mandatory crucial alterations of the law. The judgement of death, which has been
granted by the judiciary, the frontier of court has been crossed on judicial matter. 232
In I.R. Coelho v. State of Tamil Nadu (2007), case the nine judge bench
considered judicial review as a basic structure as given in common law tradition. The
Supreme Court had summarized the ambit and scope of judicial review in the
elementary structure philosophy, as safety of the important rights, through conjoint
law. The important constructions of the conjoint law are the constitutionalism. It was
too whispered that the judicial assessment is the foremost structure of the Constitution
and it is very indispensable component under the rule of law. 233

4.2 Judicial Review in India

When the executive, judiciary and legislature have harmed the constitutional
values and deny the rights, which have been definite under the Indian Constitution to
the Indian inhabitants. In such circumstances the judicial review plays very important
role as protector for safeguarding the rights of people. It is the long back journey,
where we are right now. However, judiciary has faced burden of many technocrats,
lawyers, politicians and academicians.
Seervai in his book of Constitutional Law of India itemized that the superiority
of judicial assessment is the conversant attraction of India, Canada and Australia, by
which mechanism of parting has not been seats in without ornamentation intelligence
under the Indian Constitution. The judicial assessment is technologically advanced as
an indispensable feature in the countries, wherever written Constitution is adopted. In
India, different organs of the government have been discriminating adequately, their
powers and functions has been bifurcated and one structure of government is not
permitted to emancipation the occupations of alternative organ.234
The parliamentary form of democracy, which is adopted by India, wherein
every section of people is involved in decision making and policy making process.
Every organ reflects fair representation of every section of the society. This is the
kind of wide ranging democracy. It is the consciousness of responsibility in each
republican democracy. Such straightforward theme has to be recalled by everyone. 235
The primary duty for application of the rule of law lies with the court. It is true
that the rule of law is the groundwork of social equality. It never be modified through
exercise of new powers of Parliament. Now it has been trusted, that the rule of law is
the straightforward attractiveness of every one Constitution. All those who exercise
public powers, they here the accountability. They have to work within democratic
provisions of the Constitution. The judicial review is significance to guide them.
Edmund Burke said, they act in trust, that all persons have to utilize powers. They
must be lawfully and strongly impressed and accountable in their conduct as their
political sovereignty rests with the people. 236
 The judicial review is the concept of the power of separation and rule of law.
It is topmost attraction of the Indian Constitution. In case where reason of doubt has
raised, that every state action is required to be verified by the judiciary. Under Article
two hundred twenty-six and Article two hundred twenty-seven of the Indian
Constitution, the influence of judicial assessment, have been so long as to the High
Court. In Article 32 and Article136 of the Indian Constitution, the control of judicial
assessment has so long as to the S.C.I. for the review of every aspect of the
government and public functionaries. 237

4.3Mechanisms and Opportunity of Judicial Review

In India, judicial review broadly covers three aspects; (1) judicial review of
legislative action (2) judicial review for judicial decision, and (3) judicial review of
administrative action
These facets of judicial review were pronounced by the S.C.I. in case of L.
Chandra Kumar v. Union of India (1997), stating that the judges of higher court have
to interpret legislation up to this end that the Constitutional values are not to be
interrupted. To achieve this end, the judges have to keep in mind that the equilibrium
of control, specified in the Constitution is not disturbed. 238
The opportunity of judicial assessment differs from case to case. The judicial
assessment is the uncomplicated personality of the Indian Constitution. The state’s
higher courts and the Indian Supreme Court, in workout of their control of judicial
review have protected fervently the human rights, essential rights, and citizen rights,
like right to lifespan and freedom. The judiciary have too guarded several non-
legitimacy controls of governmental organizations in admiration their controller over
resources and belongings of numerous varieties such as development of roads,
hospital, buildings, compensation to the victim of crime, overseas aid etc, as specified
by the S.C.I., in case of U.O.I. v. S. B. Vohra (2004).239
It has acknowledged by the S.C.I., in U.O.I. v K. M. Shankarappa (2001),
Section 6 (1) of the Cinematography Act, 1952, undemocratic, and experiential that
quasi-judicial body established by government and given it the powers to decide its
effect on public, of the film. The Appellate Tribunal had given its decision, which
should be implemented by the executives of concerned government. It will not be
possible to permit executives to review or revise this decision of Appellate Court, a
quasi-judicial body, and not to interfere in judicial function by appointing executives
in quasi-judicial body.
 Under requirements of the Constitution, the S.C.I. specified that the executives
need to obey the judicial order. Section 6 (1) of the Cinematography Act, 1952, is the
embellishment of the statute of legislation. That is one of the straightforward features
of the Indian Constitution. The judiciary further specified that the executives cannot
sit to revise or review the appeal of judicial order. The government may apply to the
higher tribunal, if the situations so warrants. However, the government would be
unavoidable by the definitive pronouncement of the court. 240
In case of P.U.C.L v. U. O. I. (2003),theIndian Supreme Court, in its historical
verdict stated that to disregard or disobey the decision given by the court, the
lawmakers of India have no power to ask for the instrumentality, if the legislature has
influence over the subject matter. The legislature may remove defects of invalidating
law, which has been pointed out by court in appropriate legislation.
To uphold the laws and the Constitution, without favor or fear, without bias by
economic theory or political theory. This is the primary obligation of the judiciary.
The court further stated that it is the right of the political parties, to fight election. In
case if the voter unaware of the background of the contesting candidate, such election
neither fair nor free. 241
In Teri Oat Estates Pvt. Ltd v. U.T. Chandigarh (2004), case the S.C.I. has
indulged in judicial review and judicial activism from time to time, introduced most
needful and famous doctrine of basic structure. The another theory, of social
significance and practical is the principle of proportionality. The court will observe
between lawmakers and organizational authority to uphold an appropriate
equilibrium, in the doctrine of proportionality. Its adverse effect may create
interference in liberty, rights and interests of person, which they were tended to serve.
242

On the issue of proportionality, the S.C.I. has observed in State of Madras v.

V. G. Row (1952), case that the sensibleness ought to be useful for every dispute.
There is no wide-ranging configuration or nonconcrete normal for sensibleness. The
court stated the nature of right, when it is suspected that the authorities have
overstepped the rights of the people and when the urgency is required to curb the evil,
judicial review becomes imperative. The Supreme Court also stated that the judge
which evaluating all indefinable factors can use their own reason contingent on the
situations of respectively case founded on the importance and social philosophy in
decision making.
 The limit of judge’s intervention with legislative judgement in the case,
dictates them the self-restraint, sense of responsibility and sobering reflection. The
Constitutional meaning is not only their way of thinking people, it includes ideas of
common of nominated demonstrative of the persons and permitting obligation of
limitations, which painstaking their on to be judicious. 243
The administrative action, which affects fundamental rights of the people has
been tested on the basis of proportionality since long back. This principle of
proportionality is applied vigorously in India. However, it has not been specified
particularly that the doctrine, which is functional and verified through, is the
proportionality principle.
In Om Kumar v. Union of India (2001), case the S.C.I. has improved in the
principle of secondary and prime review. The attitude of primary review is
appropriate wherever the constitutional law, legislation or any other like this have
dynamism of legislation. The secondary review is appropriate in admiration of
accomplishment, wherever executive is embarrassed, by temporary individually.
In respect of other administrative action, like punishment through
departmental proceeding, the doctrine of proportionality is applied. The case
Associated Provincial Picture Houses Ltd v. Wednesbury Corpo., is a landmark
judgment of several basic principles of judicial review of statutory and administrative
direction. 244
In Delhi Development Authority v. M/s UEE Electricals Eng. Pvt. Ltd. (2004),
case the S.C.I., has pledge with judicial assessment of organizational achievement.
The S.C.I. stated that the judicial review for administrative action can be suitably
categorized in three heads, (i) illegality, (ii) procedural impropriety and (iii)
irrationality.
The courts will take action of judicial review, where matter falls under these
categories. The court further stated that, considering challenge through appeal, over
the decision of administrative authority will not interfere. The administrative order
establishes the changes in bad faith, misuse or exploitation of rule by the authority in
influence. The court never overlooks the burden of mala fide intension of the person
who alleged it. However, mala fide intension can be more easily made out than
proved. In case of very serious allegation demand of proof is imperative to establish
credibility.
 The Supreme Court of India stated more that the administrative order, that is
challenged must satisfied rigorous test of the doctrine of legitimate expectation. The
roots of this doctrine are in the rule of law. this wants certainty, regularity and
predictability in dealing of the govt. in favor of the public. The decision of
administrative authority results affecting the person by depriving some advantage or
benefits. The affected person receives assurance from the decision makers, that the
advantage or benefits will not be reserved short of philanthropic him occasion of
proceeding explanations. That the decision maker has been permitted lawfully to
enjoy the advantage or benefits to continue it till he communicates to affected person
on some rational ground for withdrawing it, or opportunities is given to comment.245
In case of P. Bansal v. State of Rajasthan, (2003), the S.C.I. has believed that
the exemplification must be unambiguous and clear in language. The representation
could be made by an individual or a category of people. It is a procedural part that
additional suitable method or enquiry will be manage to pay for beforehand brand a
pronouncement. The principle related to substantive part of representation, if it is
made for the benefit for substantive nature, it will be granted. If it has granted earlier,
the benefit will be continued and it will not vary substantially. This is based on settled
conduct or established by past action or representation or an express promise. 246
The courts have the in effect instrument to examination the legitimacy of
statute, called the principle of reading down. The S.C.I. in C.G.E.S v. Calcutta
Municipal Corporation (2003), case has stated that the rule of reading down is well
recognized and established principle. In other words, it is the harmonious
construction. The rule of reading down applies to steaming the wrinkles originate in a
legislation or to smoothen the crudities and to make law workable. This principle is
not open to expression or reading down words, which is not found in legislation.
Hence, it is a speculation within judicial law. The doctrine of rule of reading down is
used for making specific establishment practicable and to brand synchronization with
supplementary establishment of laws. 247
The S.C.I. in B. R. Enterprise’s v. State of U.P. (1999), case has observed that
where there are two possible interpretations, one upholding the charge and the other
invalidating the law, the first attempt should be made by court to upholding the charge
provisions and not to invalidate the law. In such circumstance the courts have
attempted expensive or some time given restrictive meaning in respect to the nature of
legislation. However, cumulative, it is to work for purpose of the law.
 The legislature, they have never envisioned for the invalid legislation but they
are aware the law. It is the hoary excellent regulation for regarding the understanding
of the lawmakers. This has come to courts within their checks and track. If the
impugned legislation cannot save the rights of people, the court shall not hesitate to
struck down such legislation. Mostly, the courts have played to weed out on or after
the reap deprived of invading the Indian Constitution. The doctrine of reading down
will not be appropriate wherever around is unadorned and verbatim denotation of any
impugned legislation.248
It is cherished that the rule transmits through presupposition of
constitutionality of the law has endorsed for magnificent sensible control on the
essential privileges under Constitution of India. The legislative authority would not
workout influence illogically. The influence, where deliberated to the upper authority
the supposition can be elevated, that the authority is cognizant for its responsibilities,
and they will act consequently. These suppositions will be invalidated of the
contention completed unconstitutionality of the statute, which able to be continued. 249

4.4 Magnitude of Judicial Review in India

The S.C.I. in the prompt unconventionality years, applied in the British
procedural through inadequate judicial assessment. The judiciary generally approved
pro legislature arrogance throughout this time. This is apparent on or after the ruling,
but it did not take so long for the judges to disrupt their bonds. It was run in to the
series of rights in property cases wherein the judiciary was longer head with the
parliament. It is true, the nation observed in sequence of occasions, when the verdict
of the apex court was followed by the legislation and invalidated its conclusion.
Afterward, the Supreme Court awarded another judgment confirming the earlier
action. 250
During this period, the Supreme Court of India made effort for project with
interest of landowning classes and sensitized for the requirement of masses. It
declared during 1950 -1975 more than hundred whole or part of the State and the
Union laws as unconstitutional.
In case of destruction of the elementary social rights of inhabitant of India, the
Supreme Court delivered the series of judgments in various cases and transformed the
technique of observing at the Indian Constitution. The S.C.I. pragmatic that any
statutes or rules of municipal organizations, which affect the rights of citizens is
willing to judicial review.
Where the case of dissatisfaction of appropriate machinery in the State, the
control of the judiciary to judicial review extends from high policy matter like
President Powers to proclamation to extremely mandatory workout of the privilege of
pardon or right to go abroad. The judicial review has no bounding affect except the
limitation of judges themselves in respect of justifiability of dispute in the specific
case.

4.5 Judicial Review and the Basic Structure

The S.C.I., in Keshavand Bharethi v. State of Kerala (1973), case has
pronounced the principle of elementary structure. As the judiciary, the lawmakers can
alter the Indian Constitution, but the uncomplicated structure of the Constitution
ought to not be transformed. The judges did not make attempts in making clear terms
to explain the elementary assembly of the Constitution.
However, Justice Sikri, Chief Justice of the Indian Supreme Court mentioned
five basic features, which prerequisite to be continued in the Indian Constitution i.e.,
antiroyalist self-governing procedure of the government, sovereignty of the
Constitution, nonspiritual attractiveness of the Constitution, centralized attractiveness
of the Constitution and parting of control amongst legislature, executive, and judiciary
of India.
Justice Sikri, Chief Justice, Indian Supreme Court, was too explained that the
elementary construction of the Constitution will cover freedom, dignity and basic
foundation of individual, which could not be destroyed or amended at any cost. It was
also observed that the features of basic structure are illustrative but not exhaustive
over limitation of powers for amendment of the Indian Constitution. 251
InIndira Nehru Gandhi v. Raj Narayan (1975), case the statutory bench of the
S.C.I., perceived that the disagreement of voting was not requirement for judicial
assessment, because it is not the portion of the elementary construction in the
Constitution. Although in case of S.P. Sampath Kumar v. Union of India (1987), 1
SCC 124, the S.C.I. stated that the law made under Article 323 A (1) which eliminates
prerogative of the High Court under Article two hundred twenty-seven and Article
two hundred twenty-six deprived of judicial review would be sacrilegious the
uncomplicated arrangement of the Constitution, and it is the external from the
constitutional powers of the parliament of India.
In Minerva Mills Ltd. v. Union of India(1980), 3 SCC 625, case Justice P. N.
Bhagwati, Chief Justice, S.C.I., trusted and observed that it is well settled principle,
that the judicial assessment is the necessary feature and the elementary assembly of
the Indian Constitution.
In Kihoto Hollohan v. Zachillhur (1992), case the S.C.I. even though
appraising the legitimacy of para seven of tenth scheduled of the Constitution, took
away from judicial review the matter of disqualification of MLAs and MPs against
the decision of Speaker/ Chairman. The court observed it is useless to articulate, on
the discrepancy, whether judicial assessment is the uncomplicated assembly of the
Indian Constitution. Therefore, para seven of tenth Scheduled establish dishonored the
elementary structure of the Constitution. 252
In L. Chandra Kumar v. U. O. I. (1997), a large bench of seven judges of the
S. C. I., pragmatic unquestionably, that the rheostat of review judicially, in the
problem of legislative accomplishment to the under Article two hundred twenty-six to
the High Court and the S.C.I. under Article thirty-two of the India’s Constitution, it is
very important and significant feature of the Constitution of India, that the review
judicially valuation is the straightforward assembly of the India’s Constitution. 253

4.6 Judicial Review of Legislative Action

The legislature passed the law, which is in harmony by way of establishment
of the Indian Constitution. The powers to review legislation are vested by way of the
S.C.I. and state’s higher courts, for the resolution of judicial assessment. The judicial
assessment of legislation is in conformism, through the establishment of the
Constitution. If not, it will be over rule by the judiciary.
In State of Madras v. G. Row (1952), case the S.C.I. has highlighted legal
position in express terms. The court stated that the Constitution of India has contained
express provision of the judicial review for legislation. It is the responsibility of the
Indian Supreme Court to work as protector of fundamental rights for the citizen of
India. The powers as protector of citizens’ rights are inbuilt with the power of the
judicial review. 254
In extraordinary allusion no. 1 of 1964 the Indian Supreme Court, has re-
affirmed powers to test rationality of the lawmaking. The judiciary detained that there
is no hesitation, that the Constitution of India is trusted with the judiciary and tasks
for interpreting and necessities for preservation the essential rights of the inhabitants
of India. The court has responsibility to satisfy, whether the legislation passed by
legislatures is valid or not, and found it without authenticated provision of the Indian
Constitution. 255
In Minerva mills v. Union of India (1981), case the S.C.I. has ruled for
lawfulness of the regulation. The court has pointed out significance of the influence of
the court. The judiciary detained that the Constitution of India has balanced powers
between judiciary, legislature and executives. It is the responsibility and occupation of
the court to enunciate legitimacy of the rule. If the courts are not doing their functions
and duties properly, they deprive the people. In case of deprivation, the people may
come forward through writ to the court for remedy. 256
In L. Chandra kumar v. Union of India (1997), case seven judge conformation
bench of the S.C.I., in admiration of the influences of the Apex Court and higher
courts of states for the judicial review of legislation was very well decided. The
question was raised to the constitutional validity of Article three hundred twenty-
three-B (three) (d) and Article three hundred twenty-three-A (two) (d) which
indifferences the influence of totally judiciary excluding Supreme Court, under
Article one hundred thirty-six in deference of argument and grievance.
The S.C.I. specified that it is untarnished that the controls are deliberated the
S.C.I. and the higher courts of states. Also it stated that to examination the legitimacy
of rule is the portion of uncomplicated assembly of the Constitution of India. The
judiciary pragmatic the lawmaking proficiency of the concerned legislation. In case it
finds any dispute in the legislation, the court may destroy the whole or affected part of
legislation. 257
In the case of Keshvanand Bharethi v. State of Kerala (1973), the Apex Court
detected that the rule of law is the helping of unfussy assembly of the India’s
Constitution. The impression of the rule of law has been understood by the law lords,
it has not the same circumstances. Although, the governmental authorities or its
functionaries cannot interpret the law. If they do so, it will violate the India’s
Constitution or the elementary character of the Constitution. 258
The S.C.I. examined that there is no power to the lawmakers now the
motherland to question instrumentalities of the State, where the case of disregard or
disobey the judgment given by the judiciary. The S.C.I., in Municipal Corporation of
city of Ahmedabad v. New Shrock Spg. and Wvg. Co. ltd. (1970), case stated that run
over all the decision of the court, the legislatures cannot overrule directly or they
cannot give direction to the people for not binding the judgment of the court.
However, court stated the legislatures have the control to brand the regulation
dependable with the Indian Constitution. The legislatures must have competence to do
the same.259
In People’s Union for Civil Liberties v. Union of India (2003), case the
claimant has straggled the case in contrast to the Indian government in high opinion of
recitation the keenness of legislature to abolish and overrule the judgment. The
Supreme Court has given certain direction to the Election Commissioner for calling
the information from each parliamentary candidates and State legislative assembly
candidates. Those who are contesting the election, on affidavit, in respect of past
background of candidate, charge if any, pendency of criminal cases including
conviction, educational qualification etc.
The Indian Apex Court in earlier case of Union of India v. Association for
Democratic Reforms (2002), AIR 2002 SC 2112. The aforesaid directions were given
by the S.C.I., the government of India has modified the Representation of Peoples
(Amendment) Ordinance, 2002, which afterward was repealed by Section 33b of the
same Act, which mentions that the direction was delivered by the Election
Commission, the contestant is not responsible to provide or make known any statistics
in respect to his balloting. 260

4.7 Judicial Review of Administrative Action

In this practice the law land valuation the assertion of the government
departments, statutory corporations, administrative agencies, quasi-judicial authorities
and regulatory authorities. The expression “judicial review” has expanded its
reputation since it has exercised it in many different form. The administration
conducted significant and essential role in influencing socio-economic order. The
authorities work as a part of administration, sometimes they are corrupt do
maladministration exploiting power. When the power comes in hand of the
executives, they forget their responsibility, disregard rights of common people.
Justice S. Murlidhar of Delhi High Court has examined the validity of circular
in reference to import of the marble in India; it was issued by the Director General of
Foreign Trade. The court discarded tests, which were necessary to test validity of
administrative action by the judiciary. The court does not entertain appeal against the
crucial judgment of the administrative organization. It is concerned whether the
procedure adopted by authority is fair, reasonable and relevant. If not so, the court
may direct to the authority for making it reasonable and fair. In administrative policy
matter, court will go slow to obstruct the policy. When the case related to law exposes
the matter of import policy. 261
The Supreme Court of India in case of Secretary to Govt. of Madras v. P. R.
Sriramulu (1996), where stated that the economic measures are concerned with the
regulation, the State enjoys the wide freedom. When these measures are conflict
balance of the socio-economic values, interests of the people, economic criteria and
involve economic regulations under diverse evaluations, it is the duty of the State to
choose, what the social and economic policy should be pursued. It is the settled law,
in interpretation of impediment, characteristic of the regulatory tuning.
The S.C.I. has given the bulky discretion to the legislature for making of
effective social and economic policies in the all reasonable manner. When more than
one methods of economic measures are available, the legislature, giving preference in
favor of one of them method, it is the legislative wisdom, that nobody can question it.
It is well known principle that where there is nonexistence of brilliance in the
jurisdictive portion, it does not point out headed for unconstitutionality. It is true, that
there is no economic measure, which is permitted from altogether prejudiced impact.
The Supreme Court stated that where standards of scrutiny are imposed rigorous and
strict measures, all the concerned monetary schemes will be criticized subject to the
equal protection clause.262
The S.C.I. in Liberty Oil Mills v. U. O. I. (1984), case has examined that the
import strategy of the unindustrialized motherland has to be regulated in consonance
of the general economic policy, under the constitutional provisions. The features of
the general economic policy may be industrial or agricultural development,
requirement of international and national trade, international diplomatic and political
overtones with other countries, financial and monetary strategies etc,
In earlier case ofGlass Chotans Importers and Users' Association v. Union of
India (1962), 1962 1 SCR 862, the S.C.I. had confirmed the comment. The judiciary
stated that there must be considered other policy factors, where the expertise on policy
matter, the court does not pass any judgment particularly on import policy. However,
court may speculate some accuracy, needed in present import policy to be export
oriented. The authority can encourage to promote the export by giving the import
license. 263
In M. P. Oil Extraction v. State of Madhya Pradesh (1997), case the S.C.I.
scrutinized that the administrative authority must be efficient and capability to frame
the policy of administration in the State, otherwise the policy framed is unreliable and
arbitrary. Such policy issued is the law abiding, under Article fourteen of the Indian
Constitution. If originates it skirmish with any statutory provisions and offends other
constitutional provisions, the court will have to expressed the note of carefulness,
whether that strategy is or not in the area of the administrative authority of the State.
The hegemony of each three organs the Supreme Court stated further that viz.
executive, legislative and judiciary, in their respective field, need to be emphasized.
The controls of judicial assessment of administrative and lawmaking act essential be
reserved inside the borderline under the constitutional arrangement. If so, nobody can
setup any instance to entertain uncertainties in respect to the role of judiciary, as the
democratic setup of this country so strong. Hence, mutual respect and supremacy
among three organs of the government are appreciated in their respective field. 264
In P.T.R. Exports (Madras) P Limited v. Union of India (1996), case the S.C.I.
inspected that the sanctioning of certificate is the interrogation of the policy dominant
as on date to award of license. While the court will not bind to the government with
previous policy, which was prevailing during the date of submission. The prior
decision would not bind to the government always. In case of change in the policy,
the government must be satisfied that the replacement of policy is essential in the
community awareness. The court is expected from the government, to play freely for
the change of fiscal policy in the public interest.
Similarly, to determine priority in the matters of allotment or allocation or
utilization of its finance, the government is left free and the authority concerned is
expected to do in the interest of public. The government is entitled to issue or modify
or withdraw the import or the export, in accordance with the development
programme. The Supreme Court stated further that the petitioners have not accrued
right for the issue of permits. The court said, that the government is not bound by its
previous policy.265
The Supreme Court observed that it is glowing recognized instruction, in Ugar
Sugar Works Limited v. Delhi Administration (2001), case that the judiciary will not
delay with the strategy pronouncement of the government. Wherever the strategy is
questioned on the lines of arbitrariness or unreasonable or mala fide or unfairness, the
court has to declared it as unconstitutional. In case, when the policy hurts business
interest of a party, it does not explain irrationality. Wherever the strategy disturbs the
economic regulations and the tax, the court may exercise powers of judicial review. In
case there is no judicial defense, the court is not expected to express its opinion in that
particular situation. In such conditions, it would be best to leave it to the discretion of
the State. 266
In case ofDy. Assistant Iron & Steel Controller v. L. Manickchand (1972), the
S.C.I. has perceived that where the specialist is compromise license under import
policy, the authority has to keep in mind other various factors, which have impact on
other items of greater priority relatively in greater interest of the whole economy of
the country. The authority concerned has to be required to highest consideration for
such factors.
The Supreme Court has observed further that the applicant has not vested with
ultimate right to import license in respect of policy, which was forced at the time of
his application. It is clear, at the time of granting the license that the authority
concerned was in better position to know the overall picture of various factors. Such
factors have shown important impact on the final decision of the authority for
allotment of import license to the various applicants. 267

4.8 Judicial Review of Judicial Decision

Under the statutory and constitutional provisions, the courts have the wide
range of powers of judicial review in India. It is to state that the constitutional and
statutory provisions of judicial review are totally different. The courts must be
exercised these powers with self-control and great caution. It is not expected from the
courts that they phase out from the boundary of their appropriate influences of judicial
assessment.
In J. P. Bansal v State of Rajasthan (2003), case of the S.C.I. has examined
that the impartiality of the judiciary endangers in the community attention. Although
the court interpreting the Constitution enjoys freedom. Under this freedom the court
has not failed in interpreting the statute. The rule of law is the essential component of
the judicial assessment, as soon as the court interpret statute and provide their own
view for amending the statute. Such aforesaid judgment is the injurious to public
interest.
 The Supreme Court stated further that where the words are clear in the
legislation, in attendance is no vagueness and inconspicuousness. The purpose of
lawmakers has transferred the intelligibility. There is no possibility to innovate or
alter or amend the statute. The judges should not play the role of lawmaker, only
exercise judicial thoughts. The judges should reminisce that there is a tinny contour
which boundaries settlement from the lawmaking. The adjudicators should not cross
the line. In case, when the court forgets this jurisdictional perception, it would
encounter the legitimate commands and it will interrupt the steadiness of three
autonomous structures, under the Indian Constitution. 268
In State (Govt. of NCT of Delhi) v. Prem Raj (2003), case the S.C.I. observed
that when the High Court transformed decision by breaching its boundaries, the
powers of commute are vested exclusively with the appropriate government. The
Supreme Court further stated that the appropriate government means, that when the
order related to be implemented through the control of the Central, it is government of
India and wherever the order or judgment to be executed with the influence of the
state, it is State government. The S.C.I. is set aside verdict of the High Court. 269
In case of Syed T. A. Haqshbandi v. State of J & K (2003), the S.C.I. examined
whether the progression of understanding of pronouncement has been pragmatic,
correctly by court or decision pronounced itself illogical, the judicial assessment is
allowable only to the amount of conclusion of court. Appraisal of ingredients or
independent or critical examination is the keeping fit influence of judicial assessment.
Where the matter related to appellate court, neither it is conductive to the
interest nor permissible for judicial review, the matter must be authenticated,
appropriately recognized evidences and demonstrated by sound defensible regulation.
In the absence of these, the exercise of power of judicial review may violate any other
statutory rules or other establishment of the Indian Constitution. The equivalent
cannot be confronted by construction of jurisdictive subject beforehand the court. 270
Supreme Court of India in P.U.C.L. & others v. U. O. I. (2003), case examined
that the court will not interfere on the political question and on the policy matter,
unless it is essential for the judicial review. However, court can interfere only on the
selective ground. The court further stated that the government has to be bound by all
the accessible possibilities to avoid the violence inside the establishment of the Indian
Constitution. The judiciary cannot go to necessity forPrevention of Terrorism Act. On
the ground for announcing that the ruling undemocratic or repudiating the vesting of
powers, only possibilities for abuse, the court cannot be counted. 271
In case of Union of India v. International Trading Comp. (2003), the S.C.I.
identified, of the Indian Constitution under the Article fourteen, that this Article is
functional similarly in the matter of contractual and in the matter of government
policy. In the case, where action of the government or the policy has failed to prove
the test of rationality, it must be unconstitutional.
The court stated that the main prerequisite of the Article fourteen is impartial
in accomplishment of the State, impartial in constituent of heartbeat and their essence
is non-arbitrariness. Where the policy has not been regulated by any rule or statute,
and it intends to change the policy with discretion of executive power, the Article
fourteen of the Indian Constitution is implied and that the change must be made fairly.
It will not cover any ulterior criteria and should not give impression of arbitrariness.
The widespread stroke of Article fourteen of the Constitution mandatory that
every State action must be qualified for its rationality of criterion notwithstanding to
their ground of movement. The Supreme Court further stated that every State action
must be informed with the reason. In case where the action has not been informed
with reason, it is per se arbitrary.272
In People’s Union of Civil Libertyv. Union of India (2003), case of the S.C.I.
specified that where the political question is raised, the court mainly will not interfere.
However, the court will not shrink its duties only because it is political
undergrowth.273 The S.C.I. more in B. R. Kapoor v. State of Tamil Nadu (2001), case
detained that the court must perform its duty when the question has a political effect.
While it is the responsibility of the court to construe the Constitution of India in
logical way. 274
In State of Rajasthan v Union of India (1973), case the S.C.I. scrutinized that
as soon as the interrogation is upstretched on the issue of constitutional determination,
there is any ground that the judiciary must shrink its responsibility, under the Indian
Constitution only because the question has a political thicket. The court stated that
every question relating to the Constitution is allocated to exercise the government
power. The question which has the constitutional value cannot be a political question.
In case where the authority represented surrounded by the restrictions or over
surpassed the Constitution, it must be unquestionable by the judiciary. Nevertheless, it
would be the legitimate prerequisite to do best in community concentration. 275