The Limits of Judicial Review
Chapter -Seven
Syllabus topic 7, "Limits of judicial review"
Pages 321 to 323 of 430
In one line
Almost every limit on judicial review in India is one the courts have placed on themselves, and knowing why is the whole of Module IV.
In the wording a student can write in an exam: the limits of judicial review are of three kinds: constitutional limits, which the Constitution itself imposes, such as Articles 359 and 361; limits inherent in the nature of review, which is of legality and not of merits; and self-imposed limits, which are the discretionary grounds on which relief is refused, including alternative remedy, laches, res judicata, disputed questions of fact, the petitioner's conduct, academic questions and restraint in matters of policy.
MU's printed topic
MU's topic 7 is "Limits of judicial review", and on one paper the University asked for detailed notes on alternative remedies, laches and res judicata "in the context of limits on Judicial Review". So the module has a shape: three families of limit, and the discretionary family has seven or eight members.
The three families
Constitutional limits. Article 359, permitting suspension of the right to move a court during an Emergency, subject after the Forty-fourth Amendment to Articles 20 and 21. Article 361, the immunity of the President and the Governors. Articles 33 to 35, restricting the rights of the Forces and reserving certain powers to Parliament. Article 136(2), excluding Armed Forces tribunals. These are not discretionary; where they apply, the jurisdiction is affected.
Inherent limits. Review is of legality and not of merits. The court does not reappreciate evidence: Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477. It does not substitute its own decision: Tata Cellular v. Union of India, AIR 1996 SC 11. It does not decide policy: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899. These are not discretionary either; a court which crossed them would not be reviewing.
Self-imposed limits. The discretionary grounds, each with its own chapter: alternative remedies, laches, res judicata, disputed questions of fact, the petitioner's conduct, academic questions, contracts and economic policy, and the abuse of public interest litigation.
The one limit that does not exist
The jurisdiction itself cannot be taken away. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds that the power of 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 an answer which lists ouster clauses as a limit must add at once that they do not work, which is [The Exclusionary or Ouster Clause] and [Ouster Clauses in India: Article 323A(2)(d), Kihoto and L. Chandra Kumar].
Why the self-imposed limits exist
Because the remedy is discretionary, which is [The Writ Remedy Is Discretionary, Not a Matter of Right].
The Limits of Judicial Review
Because the procedure is summary. No evidence, no trial, decided on affidavits.
Because third parties are affected. A quashing years later unsettles people who are not in court.
Because other institutions exist. A statutory appellate authority is better placed to reconsider facts.
Because the court has a docket. A jurisdiction with no filters would be overwhelmed and would help nobody.
The proposition that unifies the module
Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that although the separation of powers is not recognised in India in its absolute rigidity, the Constitution makers meticulously defined the functions of the organs of the State and each must function within its own sphere; that judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and the executive; and that while their powers are subject to judicial restraint, the only check on the court's own exercise of power is the self-imposed discipline of judicial restraint.
That sentence explains why the limits in this module are observed even though nothing compels them.
A worked example
Five petitions are filed on the same day. The first challenges a tax assessment without appealing. The second challenges a promotion made in 2013. The third raises the same point that was decided against the petitioner in an earlier writ petition. The fourth says a rule is invalid but the petitioner has retired and is unaffected. The fifth asks the court to direct the State to change its industrial policy.
Alternative remedy, laches, res judicata, an academic question, and policy. Not one of them is a want of jurisdiction, and every one of them is a good reason to refuse relief.
What this does NOT mean
It does not mean the limits are weaknesses. They are what keeps a summary jurisdiction usable.
It does not mean they are absolute. Each has exceptions, and the exceptions are examinable.
It does not mean a court may refuse arbitrarily. The discretion is judicial and must rest on a recognised ground.
Quick revision
Three families: constitutional limits in Articles 359, 361, 33 to 35 and 136(2); inherent limits, that review is of legality and not merits, no reappreciation of evidence, no substitution, no policy; and self-imposed limits, the discretionary grounds of Module IV. The jurisdiction itself cannot be excluded, which is L. Chandra Kumar. The self-imposed limits exist because the remedy is discretionary, the procedure summary, third parties affected, other forums available and the docket finite. Asif Hameed supplies the unifying proposition.
Test yourself
1. Which limits are not discretionary? The constitutional limits, and the limits inherent in review being of legality rather than merits.
The Limits of Judicial Review
2. Why do the self-imposed limits exist? Because the remedy is discretionary and summary, because relief affects third parties, because statutory forums are better placed to decide facts, and because an unfiltered jurisdiction would be unusable.
3. What did Asif Hameed say about the check on the court's own power? That while the powers of the legislature and the executive are subject to judicial restraint, the only check on the court's exercise of power is the self-imposed discipline of judicial restraint.
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.