The Grounds of Judicial Review
Chapter Twenty-Seven
Syllabus topic 2, "Special Dimensions of Judicial Process in Constitutional Adjudications."
Pages 111 to 114 of 356
In one line
A court does not strike down a law or an order because it disagrees with it; it needs a ground, and the grounds are a known list.
In the wording a student can write in an exam: the grounds of judicial review differ according to what is being reviewed. Legislation is reviewed for want of legislative competence, for violation of the fundamental rights, for violation of any other constitutional provision, and for manifest arbitrariness. A constitutional amendment is reviewed for damage to the basic structure. Executive and administrative action is reviewed on the classical grounds of illegality, irrationality and procedural impropriety, to which proportionality and legitimate expectation have been added.
Grounds against legislation
1. Want of legislative competence. Whether the enacting legislature had power under Article 246 and the Seventh Schedule, determined by the pith and substance of the Act rather than by its label.
2. Violation of the fundamental rights. Article 13(2) makes an inconsistent law void to the extent of the contravention. The commonest heads are Article 14, Article 19 read with its clauses of reasonable restriction, and Article 21.
3. Violation of another constitutional provision. Freedom of trade under Article 301, the prohibitions in Articles 276 and 286, and so on.
4. Manifest arbitrariness. The modern head, descended from E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, and applied to strike down a practice in Shayara Bano v. Union of India, AIR 2017 SC 4609.
Facts. The petitioner sought a declaration that talaq-e-biddat, by which a Muslim husband may divorce his wife by pronouncing talaq three times at once, abruptly, unilaterally and irrevocably, was void and unconstitutional, and that it was not protected by section 2 of the Muslim Personal Law (Shariat) Application Act 1937.
Held. By three to two the practice was set aside. Two judges held it manifestly arbitrary and therefore violative of Article 14, applying the arbitrariness doctrine. A third held it was not an essential religious practice and was bad in personal law itself. The two dissenting judges held that it was protected personal law under Article 25 and that the remedy lay with the legislature.
Why it matters here. It shows manifest arbitrariness operating as an independent ground and shows how contested the ground is, since only two of five judges rested on it.
5. Excessive delegation. A legislature may delegate details but not its essential legislative function, which is the laying down of policy.
6. Vagueness. A provision so vague that a citizen cannot know what is forbidden may violate Article 14 or Article 21.
The ground against a constitutional amendment
Damage to the basic structure. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, established it; Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, first applied it to strike down an amendment; Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, applied it to the Forty-second Amendment; and the NJAC decision of 16 October 2015 applied it to the Ninety-ninth.
The Grounds of Judicial Review
Indira Nehru Gandhi is the sharpest illustration.
Facts. The Allahabad High Court had 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 had 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 the ground at its most concrete: not an abstract objection to an amendment's policy, but the identification of what the amendment actually did to the constitutional order.
Grounds against executive and administrative action
The classical English tripartite division, adopted in India and extended.
1. Illegality. The authority misdirected itself in law, acted outside its powers, used a power for a purpose other than that for which it was conferred, took into account irrelevant considerations, ignored relevant ones, or fettered or abdicated its discretion.
2. Irrationality. The decision is so unreasonable that no reasonable authority could have reached it. In India this head has largely been absorbed into arbitrariness under Article 14.
3. Procedural impropriety. Failure to observe a mandatory procedure, or breach of natural justice: the rule against bias, and the right to be heard. Maneka Gandhi v. Union of India, AIR 1978 SC 597, applied audi alteram partem to the impounding of a passport and held that the procedure under Article 21 must be right, just and fair.
4. Proportionality. Whether the measure is suitable to its object, necessary in the sense that no less restrictive means would do, and balanced in its effect on the right. Applied in Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, and in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
5. Legitimate expectation. Where an authority has induced an expectation by a representation or a settled practice, it may not disappoint it without a hearing or an overriding public interest.
The Grounds of Judicial Review
6. Mala fides. Bad faith or an extraneous purpose. Alleged in E.P. Royappa and rejected on the evidence, which shows how hard it is to prove.
What is NOT a ground
That the court would have decided otherwise. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: a court on review does not sit as an appellate authority over the executive and cannot advise it on policy.
That the policy is unwise. Wisdom belongs to the legislature and the executive.
That the law is harsh. Hardship is not unconstitutionality.
That better alternatives exist, except within proportionality, where the necessity limb asks precisely that, and even there the court allows a margin.
A worked example
A State Government cancels the licences of all private bus operators on a route and awards it to a State undertaking, without notice, under a power to act "in the public interest".
Illegality. Was the power conferred for this purpose, or for regulating safety? If the latter, using it to create a monopoly is an improper purpose.
Procedural impropriety. No notice and no hearing, though the operators' livelihoods are affected. Maneka Gandhi requires a fair procedure.
Irrationality or arbitrariness. Cancelling every licence without examining individual conduct is arbitrary under Article 14.
Proportionality. Even if nationalising the route is legitimate, was cancelling licences without transition the least restrictive means?
Legitimate expectation. The operators held licences renewed for years and were entitled to expect a hearing before being displaced.
What is not available. An argument that private operators serve passengers better. That is policy, and Asif Hameed puts it outside review.
Quick revision
- Against legislation: want of competence, breach of fundamental rights, breach of another constitutional provision, manifest arbitrariness, excessive delegation, vagueness.
- Against a constitutional amendment: damage to the basic structure. Kesavananda established it; Indira Nehru Gandhi applied it first; Minerva Mills and the NJAC decision followed.
- Against executive action: illegality, irrationality, procedural impropriety, proportionality, legitimate expectation, mala fides.
- Shayara Bano shows manifest arbitrariness as an independent and contested ground.
- Not grounds: that the court would decide otherwise, that the policy is unwise, that the law is harsh, or that better alternatives exist except within proportionality.
- Asif Hameed fixes the boundary: review is not appeal and the court does not advise on policy.
Test yourself
1. List the grounds on which legislation may be reviewed in India. Want of legislative competence under Article 246 and the Seventh Schedule, judged by pith and substance; violation of the fundamental rights, with Article 13(2) supplying the consequence; violation of any other constitutional provision; manifest arbitrariness under Article 14; excessive delegation of the essential legislative function; and vagueness such that a citizen cannot know what is forbidden.
The Grounds of Judicial Review
2. State the ground on which a constitutional amendment may be struck down, and give the first case in which it was applied. Damage to or destruction of the basic structure, established in Kesavananda Bharati, AIR 1973 SC 1461. It was first applied to strike down an amendment in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, where clause (4) of Article 329A was held destructive of the rule of law, free and fair elections and the separation of the judicial from the legislative function.
3. Set out the classical grounds against administrative action and the two modern additions. Illegality, irrationality and procedural impropriety are the classical three. The additions are proportionality, which asks whether the measure is suitable, necessary and balanced, and legitimate expectation, which protects an expectation induced by representation or settled practice.
4. Give three things that are not grounds of review, with authority for one. That the court would have decided differently; that the policy is unwise; and that the law is harsh. Asif Hameed, AIR 1989 SC 1899, holds that a court exercising judicial review does not sit as an appellate authority over the executive and cannot advise it in matters of policy, its function being to see that the executive acts within its authority and does not infringe the law.
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.