Judicial Review as a Check on Power
Chapter Thirty-One
Syllabus topic 2, "Special Dimensions of Judicial Process in Constitutional Adjudications."
Pages 128 to 131 of 356
In one line
Judicial review exists because power that nobody can check is power that will eventually be misused, and Indian constitutional history contains the demonstration.
In the wording a student can write in an exam: Lord Acton's proposition that "power tends to corrupt and absolute power corrupts absolutely", written in 1887, states the practical premise of constitutionalism: that the danger of misuse is inherent in the possession of unchecked power, whatever the character of the holder. Judicial review is one of the institutional checks a constitution establishes against that danger, alongside periodic elections, the separation of powers, federalism, a free press and the parliamentary accountability of the executive.
The argument
1. Power is exercised by people, and people are fallible. Acton's claim is not that rulers are wicked but that the absence of a check removes the ordinary corrective on error and self-interest.
2. Elections are a check, but a slow and blunt one. They operate periodically, in the aggregate, and on a whole record. They cannot protect the individual against whom a majority has legislated between elections.
3. Parliamentary accountability is a check, but not where the executive controls the legislature. In a Westminster system a government with a majority is not, in practice, checked by the House.
4. So a legal check is needed, operating on the individual case, at the instance of the person affected, and applying a standard fixed in advance.
That is judicial review, and it is why the maxim leads to the doctrine.
The Indian demonstration
MU's question is not rhetorical. Indian constitutional history contains a controlled experiment.
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, is the check working.
Facts. The Allahabad High Court set aside the election of the Prime Minister on 12 June 1975, holding that she had committed corrupt practice by obtaining the assistance of a gazetted officer, and disqualified her for six years. While her appeal was pending, the Constitution (Thirty-ninth Amendment) Act 1975 inserted Article 329A, clause (4) of which purported to declare that her election could not be called in question in any court and that the pending appeal would abate.
Held. The appeal succeeded on the merits under the amended election law, but clause (4) of Article 329A was struck down as destructive of the basic structure. It did not amend the election law; it decided a particular dispute by constitutional fiat, withdrawing it from every court, and so violated the rule of law, free and fair elections, and the separation of the judicial function from the legislative.
Why it matters here. It is Acton's maxim in a law report. The amending power, which is the most nearly absolute power the Constitution confers, was used to decide one person's case in her own favour, and it was the existence of a check that prevented it.
Judicial Review as a Check on Power
Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, is the check failing.
It is worked in full in [The Independence of the Judiciary]. By four to one the Court held that, in view of the Presidential Order under Article 359, no detenu had any locus standi to move a High Court under Article 226 for habeas corpus on any ground, including mala fides. Khanna J. dissented, holding that the State had no power to deprive a person of life or personal liberty without the authority of law even during an emergency.
Why it matters here. Within nine months of striking down clause (4) of Article 329A, the same Court held that no detenu could ask any High Court whether his detention was lawful. The two decisions together are the strongest available argument for Acton's proposition, and the strongest available argument that a check is only as good as the institution operating it.
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, is the check restored.
Facts. A sick textile undertaking was taken over and nationalised and the Act placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976, which inserted clauses (4) and (5) into Article 368 and widened Article 31C.
Held. Both were void. Clause (5) sought to remove all limitations on the amending power and demolished the pillars on which limited government rests; clause (4) sought to remove the courts' power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, itself a basic feature.
Why it matters here. Clause (4) is Acton's maxim in legislative form: an attempt to make one power absolute by removing the check. The Court's answer is the sentence every student of this subject should be able to quote in substance.
The other checks, and why review is not the only one
An answer that treats judicial review as the sole safeguard overstates it.
Elections removed the government responsible for the Emergency in 1977.
Constitutional amendment as a corrective. The Forty-fourth Amendment made Articles 20 and 21 non-suspendable, so that ADM Jabalpur cannot recur on the same footing, and required a written recommendation of the Cabinet before an Emergency may be proclaimed.
Federalism. Power divided between the Union and the States is power checked.
A free press and a professional bar. In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457, the Court had to consider the Bar's role and confine it, which shows the check being regulated rather than removed.
Judicial Review as a Check on Power
Internal checks within the judiciary. Appeal, larger Benches, published reasons.
The problem the maxim creates for the courts themselves
If unchecked power is dangerous, what checks the court?
Not elections, since judges are not elected.
Not the executive, since that would destroy independence.
The answers actually available are: published reasons open to criticism; appeal and reconsideration by larger Benches; the legislature's power to change the law where the decision is not constitutional; constitutional amendment, subject to the basic structure; impeachment under Article 124(4); the criminal law, following K. Veeraswami v. Union of India, (1991) 3 SCR 189; and the in-house procedure from C. Ravichandran Iyer. These are treated in [Judicial Accountability].
The honest position is that the checks on the judiciary are weaker than the checks it applies to others, and that this is the strongest criticism of the Indian arrangement.
A worked example
A government issues an ordinance transferring all pending cases against its ministers to a special tribunal whose members it appoints and whose decisions are declared final.
Acton's diagnosis. The power to decide one's own cases is the nearest thing to absolute power a government can obtain.
The grounds available. Illegality, since the power to constitute tribunals is not a power to remove pending judicial proceedings; breach of Article 14, since the classification is by identity rather than by any relevant criterion; breach of the basic structure, since it withdraws a class of disputes from the courts as clause (4) of Article 329A did; and breach of the rule against being judge in one's own cause.
The authority. Indira Nehru Gandhi for the constitutional fiat deciding a particular case; Chandra Kumar for the impossibility of ousting the High Court's supervisory jurisdiction; Minerva Mills for the impossibility of making a limited power unlimited.
Quick revision
- Acton, 1887: power tends to corrupt and absolute power corrupts absolutely. The premise of constitutionalism.
- Elections are periodic and aggregate; parliamentary accountability fails where the executive controls the House; so a legal check operating case by case is needed.
- Indira Nehru Gandhi, 1975: the check working, clause (4) of Article 329A struck down.
- ADM Jabalpur, 1976: the check failing, nine months later.
- Minerva Mills, 1980: the check restored; a limited power cannot be made unlimited by removing the means of enforcing the limit.
- Other checks: elections, amendment as corrective in the Forty-fourth Amendment, federalism, press and bar, and the judiciary's internal checks.
- The maxim turned on the courts: the checks on the judiciary are weaker than those it applies, which is the strongest criticism of the arrangement.
Judicial Review as a Check on Power
Test yourself
1. Why does Acton's maxim lead to judicial review rather than to some other check? Because the other checks operate too coarsely for the individual case. Elections are periodic, aggregate and retrospective on a whole record; parliamentary accountability fails where the executive commands the legislature. Judicial review operates at the instance of the person affected, on a single case, against a standard fixed in advance, which is what protects an individual against whom a majority has acted.
2. Use two Indian decisions from the same period to show both the value and the fragility of the check. Indira Nehru Gandhi, AIR 1975 SC 2299, struck down clause (4) of Article 329A, which had withdrawn the Prime Minister's election dispute from every court, as destructive of the basic structure. Nine months later ADM Jabalpur, AIR 1976 SC 1207, held that no detenu had locus standi to seek habeas corpus in any High Court. The first shows the check working against the most nearly absolute power in the Constitution; the second shows that a check is only as good as the institution operating it.
3. Quote in substance the Minerva Mills answer to an attempt to remove the check. That a limited power cannot be made unlimited by taking away the means of enforcing the limit. Clause (5) of Article 368 purported to remove all limitations on the amending power and clause (4) purported to remove the courts' power to decide whether a limitation had been exceeded; the second is as destructive as the first.
4. If unchecked power is dangerous, what checks the Supreme Court? Published reasons open to criticism; appeal and reconsideration by larger Benches; the legislature's power to change the law where the decision is not constitutional; constitutional amendment subject to the basic structure; impeachment under Article 124(4); the criminal law, following K. Veeraswami; and the in-house procedure from C. Ravichandran Iyer. The honest answer is that these are weaker than the checks the Court applies to others.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.