The Historical Development of Judicial Review
Chapter Seventeen
Syllabus topic 2, "Judicial Review in India"
Pages 51 to 53 of 430
In one line
Judicial review began as an English judge's claim that the common law could control an Act of Parliament, was made real in America, and reached India first as the prerogative writs and then as a written constitutional power.
In the wording a student can write in an exam: the doctrine of judicial review originated in the assertion in Dr Bonham's Case that the common law may control an Act of Parliament, was established as a working power in Marbury v Madison, entered India through the prerogative writs exercisable by the Presidency High Courts, and was constitutionalised in 1950 by Articles 13, 32, 226, 227 and 136.
MU's question
Set as a short note, "Historical development of Judicial Review", and twice as a whole essay, once as the origin and development of the notion of judicial review with special reference to writs, and once as the journey of the doctrine from its origin to the principle of basic structure. This chapter is the first two of those; the third is [Judicial Review and the Basic Structure].
Stage one: the English root, and its failure
In 1610, in Dr Bonham's Case, Chief Justice Coke said that in many cases the common law will control Acts of Parliament and sometimes adjudge them to be utterly void, when an Act is against common right and reason. The College of Physicians had fined and imprisoned Bonham for practising without its licence and kept half the fine, so it was judge in its own cause, which is why the case is also the ancestor of the rule against bias.
The claim did not survive in England. The seventeenth century settled the supremacy of Parliament, and an English court cannot to this day declare an Act void. What England kept was the second half of judicial review, control of the executive, exercised through the prerogative writs issued by the Court of King's Bench in the name of the Crown.
Stage two: America makes it real
Marbury v Madison, 5 U.S. 137 (1803), gave the doctrine its institutional form: a written constitution is law, it is superior to ordinary legislation, and it is emphatically the province and duty of the judicial department to say what the law is, so a court faced with a statute repugnant to the Constitution must apply the Constitution. Judicial review of legislation as a working power dates from that decision.
Stage three: the writs come to India
The Supreme Courts of the Presidency towns. The Regulating Act 1773 and the charters that followed created Supreme Courts at Calcutta, Madras and Bombay, which exercised the same prerogative writ jurisdiction as the King's Bench, but only over the Presidency towns.
The High Courts. The Indian High Courts Act 1861 replaced them, and the Presidency High Courts inherited the writ jurisdiction. So until 1950 the writs existed in India but only three High Courts could issue them and only within limited territory. A citizen in the mofussil had no writ at all.
The Historical Development of Judicial Review
The Government of India Act 1935. It introduced a federal distribution of legislative power in Lists, and with it the first real judicial review of legislation in India, because a court had to decide whether a law was within the list of the legislature that made it. It contained no bill of rights, so review for violation of rights did not exist.
Stage four: the Constitution
1950 changed everything at once.
Article 13 declares that all laws in force inconsistent with the fundamental rights are void to the extent of the inconsistency, and that the State shall not make any law which takes away or abridges them.
Article 32 gives the Supreme Court power to issue directions, orders or writs, including the five named writs, for the enforcement of fundamental rights, and makes the right to move the Court a fundamental right in itself.
Article 226 gives every High Court the power to issue the same writs, not only for fundamental rights but for any other purpose, which makes it wider than Article 32.
Article 227 gives every High Court superintendence over all courts and tribunals within its territory.
Article 136 gives the Supreme Court a discretionary power to grant special leave to appeal from any court or tribunal.
The result is that judicial review in India rests on the text and not on the common law, and that every citizen in every district has a writ court.
Stage five: what the Court did with it
It made the remedy real. Romesh Thappar v. State of Madras, AIR 1950 SC 124, decided in the Court's first year, held that Article 32 confers a fundamental right to move the Supreme Court itself and that the Court is constituted the protector and guarantor of fundamental rights, so it cannot refuse to entertain an application merely because the applicant might have gone to a High Court.
It protected the remedy from itself. Prem Chand Garg v. Excise Commissioner, U.P., Allahabad, AIR 1963 SC 996, struck down a rule of the Supreme Court's own making which required security for costs in an Article 32 petition, because the Court's rule-making power cannot be used to place an impediment in the way of a guaranteed right.
It then had to defend the power itself, through the basic structure litigation, which is the next chapter but one.
The Historical Development of Judicial Review
A worked example of why the history matters
A student is asked whether the Indian courts' power of judicial review is inherited from England. The right answer separates two things. The remedies are inherited: certiorari, mandamus, prohibition, quo warranto and habeas corpus are English writs, and T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, holds that Indian courts may issue orders in the nature of those writs so long as the broad and fundamental principles of English law regulating them are adhered to. The power is not inherited: England has no power to declare an Act void, and India's power comes from Articles 13, 32 and 226. An answer that says India simply follows England is wrong on the more important half.
What this does NOT mean
It does not mean the writs in India are the English writs. They are orders in the nature of those writs, freed of English technicalities of form.
It does not mean judicial review of legislation began in 1950. It began under the Government of India Act 1935 on the ground of legislative competence.
It does not mean Dr Bonham's Case is authority for anything today. It is the origin of an idea, not a source of law.
Quick revision
Dr Bonham's Case 1610, the claim that common law may control an Act, which failed in England. Marbury v Madison 1803, the working power under a written constitution. India: the Presidency Supreme Courts under the Regulating Act 1773 and then the Presidency High Courts under the Act of 1861 had the writ jurisdiction, but only there. The Government of India Act 1935 brought review for legislative competence. The Constitution of 1950 brought Articles 13, 32, 226, 227 and 136, so every High Court has the writs and the Supreme Court is the guarantor. Romesh Thappar and Prem Chand Garg made the remedy real and protected it.
Test yourself
1. Why did Coke's claim not survive in England? Because the seventeenth century settled the supremacy of Parliament, so an English court cannot declare an Act void; what survived was control of the executive through the prerogative writs.
2. What was the position of a litigant outside the Presidency towns before 1950? He had no writ remedy at all, because only the three Presidency High Courts had the prerogative writ jurisdiction.
3. What did the Government of India Act 1935 contribute? Judicial review of legislation on the ground of legislative competence, because power was distributed in Lists. It had no bill of rights, so review for violation of rights had to wait for 1950.
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.