Monday, April 30, 2012



By Dr T Padma.,
 LLM., Ph D (Law)

In recent times, many administrative decisions taken by the Government are being struck down either on avoidable grounds of illegality or procedural irregularity or some other grounds which could have been validly averted. This article focuses on the evolution of the concept of ‘Judicial Review’ and also on the grounds of judicial review of the administrative action in the Indian context.

Judicial Review - Origin & Evolution

The history of judicial review can be traced back to 1607, when Edward Coke, a courageous English judge, ignored the threat of being charged with treason to tell King James I that it was outside the King’s power to adjudicate upon a dispute: “true it was, that God has endowed His Majesty with excellent science, ... but His Majesty was not learned in the laws” and must therefore leave adjudication to judges. Ever since, the principle that the law is higher than kings and prime ministers has become a touchstone of civilized nations. The principle was recently reaffirmed by the UK’s new Supreme Court. In its very first case, it struck down a draconian governmental order that froze the assets of suspected ‘terrorists’. The court found that in the absence of direct parliamentary sanction, the minister concerned lacked the authority to interfere so dramatically with fundamental rights.

The principle of judicial review gained firm ground in the U.S.A. in the beginning of the 19th century. Though the doctrine of separation of powers is incorporated in the Constitution of the United States, there is, however, no conferment of express power of judicial review of legislation by the Congress on the Supreme Court of the United States. That principle was ingrained by Chief Justice Marshall of the Supreme Court of the United States in the famous case of Marbury v. Madison2 holding:

"Certainly, all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such Government must be, that an Act of the legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written Constitution, and is, consequently, to be considered, by this Court, as one of the fundamental principles of our society."

The elections of 1800 in the U.S.A. resulted in change of the President. In February 1801, about 210 years ago Marbury, along with 41 persons, was appointed as Justice of Peace for a period of five years by the outgoing President, John Adams (they were called midnight appointees). The Senate confirmed the appointments and the warrants of appointment were signed and sealed. In March 1801, Thomas Jefferson took charge as the President of the U.S.A. At his instance, the Secretary of State, James Madison, declined to deliver the warrant of appointments to Marbury and others who sought a writ of mandamus against the Secretary from the Supreme Court for delivery of warrants. At that time, such an action was considered as an attempt to intrude and intermeddle with the prerogatives of the executive. Chief Justice Marshall, nevertheless, held that the Act establishing the judicial courts of the United States conferring authority on the Supreme Court to issue writ of mandamus, inter alia, to public officers in its original jurisdiction which was not warranted under the Constitution, was void. Thereafter, the principle of judicial review was firmly established in the American jurisprudence. President Charles Evan Hughes in his speech aptly remarked, "We are under a Constitution but the Constitution is what the Judges say it is."

The principle of judicial review became an essential feature of written Constitutions of many countries. In Australia, judicial review is regulated by the Australian Administrative Procedures (Judicial Review) Act, 1977. The principle of judicial review is a familiar feature of the Constitutions of Canada, Australia and India.

Judicial Review in the Indian Context

The essential difference between a Government of despots and a Government of democratically elected persons is that in the former case, there are no limitations on the powers or their exercise whereas in the latter case, the powers are defined and their exercise is regulated by law. In a democratic country like ours, governed by the rule of law, the principle is, "be thou so high the law is above you".

Judicial review is central in dealing with the malignancy in the exercise of administrative power. Outsourcing of legislative and adjudicatory powers to the administrative authorities as an imperative of modern system of governance has brought the law of judicial review of administrative action in prime focus. Law dealing with judicial review of administrative action is largely judge-induced and judge-led; consequently thickets of technicalities and inconsistencies surround it. Anyone who surveys the spectrum of judicial review finds that the fundamentals on which courts base their decision include Rule of Law, administrative efficiency, fairness and accountability. These fundamentals are necessary for making administrative action “people-centric”. Courts have generally exhibited a sense of self-restraint where judicially manageable standers do not exist for judicial intervention[1]. However, “self-restraint” is not the absence or lack or power of judicial review. Courts have not hesitated, in exceptional situations, even to review policy matters and subjective satisfaction of the executive.

Judicial review is the basic feature of the Indian Constitution and therefore, cannot be abrogated even by an amendment of the Constitution. It is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution embody the principle of judicial review. Article 32 is included in Part III as a fundamental right for enforcement of any of the fundamental rights conferred under Part III.

However, in view of new economic policy of liberalization, privatization and globalization courts are allowing wider flexibilities to the administration. Trend of judicial decisions indicate that unless an administrative action is violative of the Constitution or law or is arbitrary of mala fide, courts do not interfere with administrative decisions. Fact remains that without a good system of judicial review any society would collapse under its own weight making ‘development’ counterproductive.

Classification of Judicial Review

Under our Constitution, judicial review can conveniently be classified under three heads:

1)      Judicial Review of Constitutional Amendments

This has been the subject-matter of consideration in various cases by the Supreme Court; of them worth mentioning are: Shankari Prasad case [2], Sajjan Singh case[3], Golak Nath case[4], Kesavananda Bharati case[5], Minerva Mills case[6], Sanjeev Coke case[7] and Indira Gandhi case[8]; the test of validity of constitutional amendments is conforming to the basic features of the Constitution.

2)      Judicial Review of Legislation of Parliament, State Legislatures as well as Subordinate Legislation.

Judicial review in this category is in respect of legislative competence and violation of fundamental rights or any other constitutional or legislative limitations

3)     Judicial review of administrative action of the Union of India as well as the State Governments and authorities falling within the meaning of State.

The object of the judicial review is to demarcate the boundaries of power of Parliament, the State Legislatures and the executive actions of the Union and the States under law and also to ensure observance of procedural safeguards. It is not exercised to scuttle the authority of the legislature in the larger sense (which includes Parliament) or the executive. The courts interpret the Constitution, relevant statutes, rules or bye-laws, define the scope of power there under and determine whether the impugned action is intra vires or ultra vires the authority and examine as to how the power has been exercised. In exercise of judicial review of administrative action there can be no doubt that the executive power of the Union of India under Article 73 of the Constitution extends to all matters which are within its legislative competence (List I and List III of the Seventh Schedule); so also the executive power of the State under Article 162 of the Constitution extends to all matters in respect of which it is competent to legislate (List II and List III of the Seventh Schedule of the Constitution).

Grounds of Judicial Review of Administrative action
Generally, judicial review of any administrative action can be exercised on four grounds viz.,

a)     Illegality
b)     Irrationality
c)     Procedural impropriety and
d)     Proportionality.

These grounds of judicial review were developed by Lord Diplock in Council of civil Service Union v. Minster of Civil Service[9]. Though these grounds of judicial review are not exhaustive and cannot be put in watertight compartments yet these provide sufficient base for the courts to exercise their review jurisdiction over administrative action in the interest of efficiency, fairness and accountability.

a)     Illegality

This ground of judicial review is based on the principle that administrative authorities must correctly understand the law and it limits before any action is taken. Therefore, if the authority lacks jurisdiction or fails to exercise jurisdiction or abuses jurisdiction or exceeds jurisdiction, it shall be deemed that the authority has acted “illegally”. Court may quash an administrative action on the ground of illegality in following situations.

1)     Lack of Jurisdiction

Court may review an administrative action on the ground that the authority exercised jurisdiction which did not belong to it. This review power may be exercised inter alia on following grounds.

i)       That the law under which administrative authority is constituted and exercising jurisdiction is itself unconstitutional.
ii)    That the authority is not properly constituted as required by law.
iii)  That the authority has wrongly decided a jurisdictional fact and thereby assumed jurisdiction which did not belong to it.
iv)   That some of the essential preliminary proceedings or conditions have been disregarded which were conditions precedent for the exercise of jurisdiction, such as:
a)     Non-formation of necessary opinion before assuming jurisdiction.
b)     Non-issue of statutory notice.
c)     Non-institution of proceedings within specified time.
v)     That the authority is incompetent to assume jurisdiction in respect of subject-matter, area and parties.

2)      Excess of jurisdiction

This covers a situation wherein though authority initially had the jurisdiction but exceeded it and hence its actions become illegal. This may happen under following situations.  

i)       Continue to exercise jurisdiction despite occurrence of an event ousting jurisdiction.
ii)    Entertaining matters outside its jurisdiction.

3)     Abuse of Jurisdiction

All administrative powers must be exercised fairly, in good faith for the purpose it is given, therefore, if powers are abused it will be a ground of judicial review. In the following situations abuse of power may arise.

i)       Malfeasance in office. It is a tort doctrine imported into administrative law. The Supreme Court in Lucknow Development Authority v. M.K. Gupta[10] held that where the Minister allotted petrol outlets from his discretionary quota in arbitrary, mala fide and unjust manner, it is misfeasance in office subject to judicial review of the Court.
ii)    Error apparent on the face of the record which may be a result of misinterpretation or misapplication of law.
iii)  Consideration of extraneous material
iv)   Non-consideration of relevant material.
v)     Colourable exercise of power or misdirection in law.
Administrative power cannot be used for the purpose it was not given. Therefore, achieving an unauthorized purpose will be a colourable exercise of power subject to judicial review.
vi)   Mala fide exercise of power or bad faith or malice.
No public authority can act in bad faith or from corrupt motives. If any administrative authority has acted in a mala fide manner it will be subject to the review jurisdiction of the Court. In case of mixed considerations courts try to find out the dominant purpose which impelled administrative action. Power is exercised maliciously when action is motivated by personal animosity towards one who is affected by it. It is considered as fraud on power. Mala fide as a ground of judicial review is not available against legislative action. Even if executive may have ulterior motives in moving legislation or an administrative authority exercising rule-making powers.

‘Mala fide’ is an open textured expression. In R.S. Gag V. Sate of U.P[11]., the Supreme Court explaining the reach of this expression held that where authority had made up its mind from the very beginning to promote the respondent as approval of the Chief Minister was obtained earlier than the creation of post and order of promotion was issued in haste, it goes to prove that the action of the authority smacks of mala fide.

4)     Failure to exercise Jurisdiction

If any administrative authority has been given power by law, no matter discretionary, authority must exercise it in one way or the other. Public power is not a personal power, it is a public trust therefore, must be exercised in public interest. Failure or denial to exercise jurisdiction will be an illegality. Failure to exercise power may arise:  

i)       Where authority has sub-delegated its powers without the authority of law.
ii)    Where authority is exercising its power under dictation or transcription.
iii)  Where authority has fettered its power by self-imposed restrictions unwarranted by law.
iv)   Where authority declines jurisdiction which belongs to it under law.
v)     Where there is non-application of mind by the authority and is acting in a perfunctory or mechanical manner ignoring conditions precedent.

b)     Irrationality (Wednesbury test)

Irrationality as a ground of judicial review was developed by the Court in Associated Provincial Picture House v. Wednesbury[12], later  came to be known as “Wednesbury test” to determine ‘irrationality’ of an administrative action. A decision of the administrative authority shall be considered as irrational:

i)          If it is without the authority of law.
ii)       If it is based on no evidence.
iii)     If it is based on irrelevant and extraneous consideration
iv)      If it is so outrageous in its defiance to logic or accepted norms of moral standard that no sensible person, on the given facts and circumstances, could arrive at such a decision. In other words it is so absurd that no sensible person could ever dream that it lay within the power of the administrative authority. It is the use of the doctrine in substantive sense.
Therefore, if the decision of the authority is so capricious, perverse, arbitrary, unreasonable and manifestly unjust that no sensible person can come to that conclusion, court would quash it. However, standard of rationality of administrative action is not to be judged by the standard of ‘any person’ (man in a clapham Omnibus). It is a standard indicated by true construction of law, proper or improper use of power and perversity of the decision which no sensible man can arrive at. In applying this test court would not apply ‘strict scrutiny’ and would not judge adequacy or sufficiency of the material unless fundamental rights are violated, and would not substitute its judgment with the judgment of the administrator unless the decision is perverse.
v)        It is so unreasonable that it may be described as done in bad faith.

Irrationality in umbrella sense may include: (i) Taking into consideration irrelevant material; (ii) ignoring relevant considerations; (iii) using power for improper purpose (iv) exercising power in malafide manner. However, when used in ‘substantive sense’ it may mean that administrative action is so irrational that no public authority could take it.

Principle of irrationality shares space of rule of law, reasonableness and non-arbitrariness. If the action of the administrative authority violates any of these principles court can quash such action as violative of Articles 14, 19 or 21 of the Constitution. Reasonableness besides being a constitutional requirement may also arise from a statutory mandate. Thus, where a statute provides, ‘if authority has reason to believe’,   courts have held these words to limit administrative discretion to the extent that the exercise of power must be objective and not subjective. Where there is not express requirement of ‘reasonableness’ courts have implied this requirement in every administrative action because no administrative action should be irrational, arbitrary and subjective. Therefore, if law allows an administrative authority to take action ‘as it may deem fit’ Courts have interpreted these words to mean ‘as it may reasonably deem fit’. It is necessary to infuse every administrative action with ‘fairness’ necessary to build a Rule of Law society.

c)     Procedural impropriety

Procedure of a decision is an important as the decision itself because if ‘procedure’ is not fair, decision cannot be trustworthy. Therefore, Courts have insisted on a ‘fair procedure’ requirement in every administrative action. Requirement of a ‘fair procedure’ may arise:

1)     As a constitutional mandate where fundamental rights of the people are violated.
2)     As a statutory mandate. If statute lays down any procedure which administrative authority must follow before taking action, it must be faithfully followed and any violation of the procedural norm would vitiate an administrative action.
3)     As an implied requirement where statute is silent about procedure.

Where statute is silent, courts have insisted that administrative authorities must follow the principles of natural justice which provide fair minimum administrative procedure which every administrative authority must follow while taking a decision which has civil or evil consequences. These rules of natural justice which guarantee “fair play in action” include: 

1)     Rule against Bias-No one should be made judge in his own cause.
2)     Rule of fair hearing-No one should be condemned unheard.

d)     Proportionality

Proportionality means that the administrative action should not be more drastic than it ought to be for obtaining desired result. This implies that cannon should not be sued to shoot a sparrow. Thus this doctrine tries to balance means with ends. Proportionality shares space with ‘reasonableness’ and courts while exercising power of review sees, ‘is it a course of action that could have been reasonably followed’. Courts in India have been following this doctrine for a long time but English Courts have started using this doctrine in administrative law after the passing of the Human Rights Act, 1998.
This doctrine is being applied in following situations:

i)       Where administrative action invades fundamental rights. In such a case courts make strict scrutiny of administrative action and go into the question of correctness of the choices made by the authority. The court would also balance adverse effects on the right and the object sought to be achieved.
ii)    Where question of quantum of punishment imposed by the administrative authority is involved. In such a case Court would not make strict scrutiny. Courts follow the principle that though quantum of punishment is within the jurisdiction of the administrative authority but arbitrariness must be avoided. This principle may be termed as ‘deference principle’ where court show respect to the choice made by the administrative authority except when choice is manifestly disproportionate. 

While reviewing an administrative action the ground of proportionality Courts generally examine:

i)        Whether the relative merits of different objectives or interests have been appropriately weighed and fairly balanced?
ii)    Whether the action under review was, in the circumstances, excessively restrictive or inflicted an unnecessary burden?

Elaborating on the scope of judicial review of administrative action on grounds mentioned above, the Court observed that it is limited to consideration of legality of decision making process and not legality of the decision perse. Mere possibility of another view cannot be a ground for interference. Therefore, courts will not interfere unless the decision suffers from illegality, irrationality, procedural impropriety and proportionality deficiency. Mere assertion of these ground is not sufficient, each ground must be proved by evidence on record. Asserting the power of judicial review, the court emphasized that the doctrine of immunity from judicial review is restricted to cases or class of cases which relate to deployment of troops and entering into international treaties etc. in policy matters and where subjective satisfaction of the authority is involved, court will not interfere unless the decision is totally perverse and violates any provisions of the Constitution[13].

Judicial Review -Important Judicial Orders


It was perhaps the first stand-off between judiciary and legislature. The UP legislature had ordered the arrest of one Keshav Singh for committing contempt outside the legislature. He filed a habeas corpus plea with Allahabad High Court's Lucknow bench and got bail. The legislature ordered him rearrested and asked for the two HC judges who had granted bail to be brought in custody to the House to answer contempt charges. A full bench of 28 judges of the HC (excluding the two) issued an interim order staying the assembly order. The Speaker still issued arrest warrants against the two judges while a petition sought to initiate contempt of court proceedings against the Speaker and MLAs. Supreme Court ruled in 1965 that legislative privileges were subject to judicial review’[14]


In the Kesavananda Bharati case[15], Supreme Court held that the power of the legislature to amend the Constitution has limits. The legislature, it held, could not amend the ‘basic structure’ of the Statute. While there were differences in the bench on what “basic structure” meant, the majority held that supremacy of Constitution; republic & democratic form of govt; secularism, separation of powers & federal character formed the basic structure.


The Allahabad High Court upheld an election petition filed by Raj Narain alleging that Indira Gandhi had indulged in electoral malpractices like using the government machinery for her campaign in the 1971 Lok Sabha polls. The HC struck down her election and barred her from contesting elections for six years, which would effectively have meant she would have to quit as PM. The situation ultimately resulted in the ‘imposition of the Emergency’.[16]


April 28th, 1976 is a day never to be forgotten by any of us Indians who love the pledges of Justice and Liberty which we gave to ourselves in the Preamble of our Constitution. It was on this day when four of the five senior most Judges of the Supreme Court (including the Hon'ble Chief Justice) struck the first mortal blow to these cherished dreams enshrined in our Constitution. On this day during the Emergency the Supreme Court sank to its lowest when it decided the infamous Habeas Corpus Case with the following conclusion:

"In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.[17] "

Of course, after 34 years, the Supreme Court has said the majority judgment in ADM Jabalpur case, holding that the right to life did not exist during Emergency, was wrong as it violated the fundamental rights of a large number of people.  


A case involving Maneka Gandhi’s passport being seized led to SC introducing the concept of ‘due process’ in our jurisprudence. The court held the mere fact that laid down procedures were followed before depriving Maneka of her passport did not amount to due process having been followed. It said due process — meaning that the law is “right, just and fair” — must be shown where fundamental rights are curtailed.[18]


In the case of Indira Sawhney and Others versus the Union of India[19], the SC upheld the proposed reservations for OBCs, but subjected them to important caveats. These were the stipulation that the ‘creamy layer’ of OBCs must be excluded from reservations and that reservations must not exceed 50% of the total available jobs. With 22% already reserved for the SCs and STs, this meant OBCs could get a quota of only 27%.


In what is known as the “second judge’s case[20]”, a nine judge SC bench ruled that in appointment of judges to the SC and high courts, executive cannot go against the opinion of the CJI. It spelt out what consultative process the CJI must go through in forming his or her opinion. This overturned a 1981 judgment in the ‘first judges cases’ which had given primacy to the executive in appointments to higher judiciary.


In what is generally referred to as the Bommai judgement, a nine-judge SC bench held that the proclamation of President's Rule in a state under Article 356 was not immune to ‘judicial review’. It also held that such a proclamation would have to be ratified by both houses of Parliament. The ruling had the effect of drastically curbing the earlier wanton use of Article 356 by parties at the Centre against state governments run by their rivals.


As part of its judgment in the Jain hawala case[21], SC said Central Vigilance Commission should be made a statutory body & CVC should be appointed by a three-member panel consisting of the PM, home minister and leader of opposition. It tried to insulate the CBI and the Enforcement Directorate from political control by saying that the heads of the two bodies should be appointed by a panel headed by the CVC.


A three-judge SC bench made it mandatory for election candidates to declare assets, criminal cases filed against them & educational background. The poll panel followed with a notification to the same effect a month later. The govt tried to counter this through an amendment to the Representation of the People Act based on an all-party consensus. In 2003, another bench struck down the amendment as unconstitutional.[22]


In the recent past four notable judgments were delivered by the Supreme Court. One relates to the Chhattisgarh Salwa Judum case (July 5, 2011), the second one to the case of sewage workers of the Delhi Jal Board (July 12, 2011), the third (July 4, 2011) to the writ petition filed by Ram Jethmalani and others for the recovery of black money stashed abroad and the fourth relating to screening of hindi film Aaraksham.. In all these cases, the Supreme Court has, in its own way, pointed the finger at some of the deep and dangerous pot-holes in the path on which India is currently walking.

In the salwa judum case[23], the court order talked about how “the culture of unrestrained selfishness and greed spawned by neo-liberal economic policy” of the state is largely responsible for the Naxal/Maoist violence and how the “amoral political economy”, coupled with scant respect for “the vision and values of Indian constitutionalism”, has virtually created a “heart of darkness” in the tribal belt of Chhattisgarh.

With the same insight, the Supreme Court, in the Delhi Jal Board case[24], talks about how insensitive the state apparatus has become and how, even in the country’s capital, sewage workers suffer “high morbidity and mortality” on account of the apathy of those whose duty it is to supply “protective gear” to them.

In the Ram Jethmalani case[25], by constituting a special investigative team under the chairmanship of Justice Jeevan Reddy (Retd), to investigate and initiate prosecution against the holders of illegal deposits in foreign banks, the Supreme Court has left no one in doubt what it thinks about the growing incapacity of the governance machinery to tackle vested interests. It is this incapacity which has enabled tax evaders to stash abroad amounts which, according to the Global Financial Integrity Report, may total up to $1.4 trillion (` 70 lakh crore)

Screening of the Hindi film Aarakshan

In coming down heavily on the Uttar Pradesh government order suspending the screening of the Hindi film Aarakshan, which deals with issues of caste and reservation, the Supreme Court of India has struck another blow for freedom of expression and against the tendency of the state to resort to censorship at the first sign of political protest. Importantly, the court held that the government had no power to suspend screening of a film that had been cleared by the Central Board of Film Certification. The CBFC, or censor board, is an empowered regulatory body constituted to view, rate, and censor objectionable portions of a film prior to its release. To seek to ban or suspend the screening of a film certified by the censor board under the procedure established by law (in this case, the Cinematograph Act 1952) goes against the fundamental right of freedom of speech and expression guaranteed by the Constitution — and is a threat to democratic dissent and artistic creativity

Successive Supreme Court rulings on the issue, which draw force from Article 19(1)(a) of the Constitution, should deter governments from going down this road again under pressure from organised groups or special interests or for any other reason.[26]

If one were to name a judgment that would be etched in the pages of immorality, surely Justice H.R. Khanna’s dissent in ADM Jabalpur v. Shivkant Shukla, would stand out as the prime example. It is a beacon that shines though time, and inspires successive generations of judges, lawyers, scholars, law students and citizens alike. This dissent upheld the inalienable, non-derogable right of every person aggrieved against his unlawful detention to seek judicial redress, at all times. It has been compared with Lord Atkin’s unforgettable dissent in Liversidge v. Anderson[27].

Judicial Activisim - Public Perception

A judge is ‘activist’ (in its pejorative sense) when he does something which he ought not to be doing. We must hold judges accountable not for their activism but for their failure to do what they ought to do. We must demand that their judgments are based on sound reasons, and are unaffected by fear, favour or public opinion. Their accountability, however, is policed not by politicians but by the academy. Barring a few exceptions, our academia in general and legal academia in particular, has not always performed this scrutinizing duty diligently. However, the sheer volume of decisions makes it difficult for judges to write sound judgments and for academics to criticize them.

It would be better if our judiciary examined fewer cases, but took the time to decide them well, and was subject to academic scrutiny as a matter of course. An undecided case is usually better than a badly decided one, especially when one is staring at a court of last resort.

Commonwealth (Latimer House) Principles

It is not out of context to mention here the Commonwealth (Latimer House) Principles on Independent Judiciary[28]

 “IV) Independence of the Judiciary

An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country.

To secure these aims:

(a)  Judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process. The process should ensure:

Ø  equality of opportunity for all who are eligible for judicial office;
Ø  appointment on merit; and
Ø  that appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination;

(b)  Arrangements for appropriate security of tenure and protection of levels of remuneration must be in place;
(c)  Adequate resources should be provided for the judicial system to operate effectively without any undue constraints which may hamper the independence sought;
(d)  Interaction, if any, between the executive and the judiciary should not compromise judicial independence.

Judges should be subject to suspension or removal only for reasons of incapacity or misbehaviour that clearly renders them unfit to discharge their duties.

Court proceedings should, unless the law or overriding public interest otherwise dictates, be open to the public. Superior Court decisions should be published and accessible to the public and be given in a timely manner.

An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary.”


Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint[29].

Therefore, constitutionally, judiciary is a check on excesses of legislature and executive, and on non-functioning and ineffective government. Particularly since the Emergency, when courts didn't exactly cover themselves with glory, public interest litigations (PILs) have been instrumental in enforcing citizen rights, environmental issues being a case in point. Fundamental rights, and a broad interpretation of Article 21, have also enforced individual rights.

Would one wish for a situation where there are no PILs and no fundamental-rights-related writ petitions before Supreme Court and high courts? Because one doesn't trust government, both legislature and executive, most citizens will answer in the negative, notwithstanding  the  problems of  judicial delays.

Understanding the legal aspects of administrative decisions, keeping in view the constitutional objective of providing justice to the people of India is at the hands of the executive as well. If proper care is taken at the level of making administrative decisions, there will be little scope for grievance and invoking courts' jurisdiction. This will not only reduce the burden on courts but will also create a sense of security and satisfaction in people which is the essence of good governance and foundation of a welfare State.
        [Published in Andhra Law Times / Fortnightly
September’ 2011; PART-17]

[1]  Essar Oil Ltd v. Halar utkarsh Samiti, (2004) 2 SCC 392.
[2] Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
[3] Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
[4] Golak Nath v. State of Punjab, AIR 1967 SC 1643
[5]Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
[6] Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625
[7] Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147
[8] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
[9]  Council of civil Service Union v. Minster of Civil Service(1984) 3 AII ER935 (HL)
[10]  Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243.
[11]  R.S. Garg V. Sate of U.P(2006)6 SCC 430
[12]  Associated Provincial Picture House v. Wednesbury(1948) K B 223
[13]  Assn. of Registration plates v. Union of India; (2005) 1 SCC 679.
[14] - Keshav Singh’s Case;  AIR 1979 SC 478 ; (1979) 1 SCC
[15] Kesavananda Bharati Vs. State of Kerala; AIR 1973 SC 1461.
[16] Indhira Nehru Gandhi Vs. Raj Narain; AIR 1975 SC 2299
[17] ADM Jabalpur v. Shivkant Shukla, (1976) 2SCC 521
[18] Maneka Gandhi Vs. Union Of India; 1978 AIR 597
[19] Indira Sawhney and Others Vs. the Union of India; AIR 1993 SC 477
[20] Second Judges Case;  1993 Supp (2) SCR 659
[21] Vineet Narain Vs. Union OF India; AIR 1998 SCC 226
[22] Unoion of India Vs. Association for Democratic Reforms; AIR 2002 SC 2112
[23] Nandini Sundar and Ors Vs. State of Chattisgarh
[24] Delhi Jal Board Vs. National Campaign for Dignity and Rights of Sewerage and Allied Workers & others                            
[25] Ram Jethmalani & Ors. vs Union Of India & Ors
[26] The Hindu Dated: 22-08-2011.
[27] Liversidge v. Anderson, (1942) AC 206
[28] Commonwealth Principles on the Accountability of and the Relationship between the three branches of Government; As agreed by Law Ministers and endorsed by the Commonwealth Heads of Government Meeting where India is also Member.
[29] Asif Hameed v. State of J. & K;AIR 1989 SC 1899

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