Judicial Review: Where It Comes From and How Far It Goes

The three kinds of judicial review

Review of legislation. Is the statute within the legislature's competence, and does it contravene Part III or any other constitutional limitation?

Review of executive action. Was the act within a conferred power, was the prescribed procedure followed, was it exercised for the purpose for which it was given, and does it satisfy articles 14 and 21?

Review of a constitutional amendment. Does it damage or destroy the basic structure? This is the Indian addition, worked in [The Basic Structure Doctrine].

The standards a court applies, and the standard it does not

Competence. Read the entries. This is the federal ground and it is examined in [Pith and Substance, Colourable Legislation and Incidental Encroachment].

Consistency with Part III. Does the law restrict a right, and if so is the restriction within a permitted ground and reasonable?

Arbitrariness. After E.P. Royappa and Maneka Gandhi, arbitrary State action offends article 14 without any comparator being needed.

Proportionality, where a right is invaded: legality, a legitimate aim, a rational connection, necessity, and a balance between the harm and the benefit. This is the Puttaswamy formulation.

But not the wisdom of the policy. In Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899. Facts. The case concerned admissions to a medical college and how far a court could examine the government's selection policy. Held. Although the doctrine of separation of powers is not recognised in India in its absolute rigidity, the Constitution has sufficiently delineated the functions of the three organs, and that while the judiciary determines the legality of legislative and executive action it cannot sit in judgment over the wisdom of policy. Why it matters here is that it supplies the answer to the standard criticism that judicial review is undemocratic: the power is over legality, not over choice.

A worked example

Parliament enacts the Financial Disputes Tribunal Act, which creates a tribunal to decide all disputes between banks and borrowers, staffs it with retired civil servants appointed by the Central Government, and provides that its decisions shall be final and that no High Court shall entertain any petition in respect of any matter within its jurisdiction. A borrower challenges the Act.

Take the competence point first, because it is quickly answered. Banking is Entry 45 of List I, so Parliament may legislate, and article 323B permits tribunals for specified matters. Competence is not the problem.

Then take the exclusion of the High Courts, which is the real question. Article 226 is a constitutional power of the High Court, and the power of judicial review vested in the High Courts under article 226 and in the Supreme Court under article 32 is part of the basic structure. A statute cannot remove it.

Then take the composition, which is a separate and equally fatal objection. A tribunal replacing a court must be a real substitute for it: members appointed by the executive, without judicial members, deciding disputes to which public sector banks are party, does not satisfy the independence that judicial review presupposes.

And note what the answer is not. The tribunal is not unconstitutional because tribunals are a bad idea, and a court will not say so. It is unconstitutional because two identified constitutional limits are crossed, and that discipline is what separates a lawyer's answer from a commentator's.

The cases

Judicial review is part of the basic structure. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225. Facts. A challenge to Kerala land reform legislation which widened into the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments. Held. Parliament may amend any part of the Constitution but may not alter its basic structure, and it struck down that part of article 31C which barred any inquiry into whether a law in fact gave effect to the policy in article 39(b) or (c), precisely because such a bar would have made the legislature's declaration conclusive and removed review. Why it matters here is that judicial review is thereby beyond the reach of the amending power, which is the strongest form the doctrine can take anywhere.

A tribunal may substitute for a High Court only if it is a real substitute. In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386. Facts. A challenge to the Administrative Tribunals Act 1985, which excluded the jurisdiction of the High Courts in service matters and vested it in tribunals. Held. The Act was valid subject to modifications, on the footing that the tribunal was an effective alternative institutional mechanism or authority for judicial review, and it directed changes to the composition and appointment provisions so that the tribunal would be a genuine substitute for the High Court. Why it matters here is that it accepted the exclusion of article 226 on the theory of a substitute, and that theory did not survive.

Because the High Court's power itself is basic. In L. Chandra Kumar v. Union of India, AIR 1997 SC 1125. Facts. A reference to seven judges on the constitutional validity of clause 2(d) of article 323A and clause 3(d) of article 323B, which permitted the exclusion of the jurisdiction of the High Courts, and of section 28 of the Administrative Tribunals Act. Held. The power of judicial review vested in the High Courts under articles 226 and 227 and in the Supreme Court under article 32 is an integral and essential feature of the Constitution and part of the basic structure; that those clauses, to the extent they exclude that jurisdiction, are unconstitutional; and that tribunals will continue to function as courts of first instance, with their decisions subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls. Why it matters here is that it is the law today, and it overrules the substitute theory of Sampath Kumar on this point.

And review does not run against a judicial order of a superior court. In Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1. Facts. A High Court judge had orally directed that the evidence of a witness in a defamation suit should not be published, and journalists moved the Supreme Court under article 32 saying the order violated article 19(1)(a). Held, by a majority of nine judges. A judicial order of a competent court cannot be said to violate a fundamental right and is not amenable to a petition under article 32; the remedy against such an order is an appeal, not a writ. Why it matters here is that it fixes an important boundary: judicial review is review of legislative and executive action, and a wrong judicial order is corrected by appeal.

Distinctions

What it does NOT mean

It does not mean judicial supremacy. Parliament may amend the Constitution, including to answer a judgment, and has done so many times; what it may not do is destroy a basic feature.

It does not mean the courts may review anything. Article 122 and article 212 bar review of legislative procedure for irregularity; article 361 protects the President and Governors; the tenth Schedule limits review of a Speaker's decision to the grounds identified in Kihoto Hollohan; and a policy choice is reviewable for legality, not wisdom.

It does not mean an exclusion clause is always void. A statute may confine a remedy, provide for a tribunal, or prescribe a limitation period. What it may not do is exclude articles 32, 226 and 227 altogether.

And it does not mean every error is a constitutional one. Most judicial review is ordinary administrative law, and the constitutional questions arise only where a right or a federal limit is touched.

Quick revision

Judicial review is written into the Indian Constitution rather than inferred: articles 13, 32, 131, 136, 226, 227, 245 and 246, supported by articles 141, 142, 145 and 147. Three kinds: of legislation, of executive action, and of constitutional amendments. Standards: competence, consistency with Part III, arbitrariness under article 14, and proportionality where a right is invaded; not the wisdom of policy (Asif Hameed). Kesavananda Bharati makes judicial review part of the basic structure and strikes down the clause of article 31C that barred inquiry. S.P. Sampath Kumar accepted a tribunal as an alternative institutional mechanism; L. Chandra Kumar holds the power of the High Courts under articles 226 and 227 and of the Supreme Court under article 32 to be part of the basic structure, so articles 323A(2)(d) and 323B(3)(d) are unconstitutional so far as they exclude it, and tribunal decisions go to a Division Bench of the High Court. Naresh Shridhar Mirajkar: a judicial order of a superior court is not challengeable under article 32.

Test yourself

1. Name six articles that confer judicial review and say what each contributes. Article 13, which voids a law inconsistent with Part III; article 32, the guaranteed remedy in the Supreme Court; article 226, the wider writ power of a High Court; article 227, superintendence over courts and tribunals; article 246 with the Seventh Schedule, legislative competence; and article 136, discretionary special leave.

2. How does the Indian source of the power differ from the American? In the United States the power was inferred from the structure of the Constitution in Marbury v. Madison. In India it is conferred by express provisions, which is why an Indian court does not have to justify its existence before exercising it.

3. What did L. Chandra Kumar decide, and what did it displace? That the power of judicial review of the High Courts under articles 226 and 227 and of the Supreme Court under article 32 is part of the basic structure, so the clauses permitting its exclusion are unconstitutional and tribunal decisions are subject to review by a Division Bench of the High Court. It displaced the alternative-institutional-mechanism theory on which S.P. Sampath Kumar had upheld the exclusion.

4. Can a judicial order of a High Court be challenged under article 32? No. Naresh Shridhar Mirajkar holds that a judicial order of a competent court does not violate a fundamental right for this purpose and the remedy is an appeal.

5. State the four standards of review and the one question a court will not ask. Competence, consistency with Part III, arbitrariness under article 14, and proportionality where a right is invaded. A court will not ask whether the policy was wise: Asif Hameed.

6. Why is judicial review called the cornerstone of the Constitution? Because every other constitutional limit depends on it. Rights, the division of legislative power, the limits on the executive and the limits on the amending power are all statements about what may not be done, and none of them has any legal consequence unless a court can declare an act that crosses them invalid.