The Scope and Limits of the Judiciary's Power of Review
Chapter Twenty-One
Syllabus topic 2, "Judicial Review in India"
Pages 63 to 65 of 430
In one line
The scope of judicial review in India is as wide as public power itself, and its limits are almost all self-imposed.
In the wording a student can write in an exam: the scope of judicial review extends to every exercise of public power, legislative, executive, administrative or quasi-judicial, by every authority answerable under the Constitution; its limits are of two kinds, those inherent in the nature of review, which is of legality and not of merits, and those the courts impose on themselves in the exercise of a discretionary jurisdiction.
MU's question
Set twice as a whole question: the scope and limits of the powers of the judiciary in India to exercise judicial review under the Constitution, and the scope of the powers of the Supreme Court regarding judicial review together with the extent of the Article 32 jurisdiction. This chapter states the scope and summarises the limits; Module IV works each limit in detail.
The scope, in six propositions
One, it reaches every organ. Legislation, executive orders, delegated legislation, and the decisions of tribunals and subordinate courts.
Two, it reaches bodies that are not obviously the State. Article 12 catches instrumentalities, and Article 226 reaches beyond Article 12 to any body discharging a public duty: Zee Telefilms Ltd. v. Union of India, decided on 2 February 2005.
Three, it reaches the prerogative and the residuary. In India there is no prerogative in the English sense, but the same principle applies: a power is not immune because it is not statutory. The English authority is Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, worked in [Illegality, Irrationality and Procedural Impropriety], which held that a power derived from the common law rather than a statute is not for that reason immune from review.
Four, it reaches a decision made final by statute. A finality clause does not touch Article 226, and even an ouster inserted by constitutional amendment failed in Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686.
Five, it 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.
Six, it carries its own remedies. Not only quashing but compensation in public law: Rudul Sah v. State of Bihar, AIR 1983 SC 1086.
The limits, in two families
Limits inherent in the nature of review. The court examines legality and not correctness. It does not reappreciate evidence. It does not substitute its own decision for that of the authority. It does not sit in appeal on an expert body's assessment. It does not decide policy. These are not discretionary; a court that crossed them would not be reviewing at all.
The Scope and Limits of the Judiciary's Power of Review
Limits the court imposes on itself. Alternative remedy, laches, res judicata, disputed questions of fact, the conduct of the petitioner, academic questions, and restraint in contractual and economic matters. Each is discretionary, each has exceptions, and each is a chapter of Module IV.
The proposition that ties them together
Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.
Facts. Unsuccessful candidates for admission to medical colleges challenged the selection process. The High Court had earlier directed the State Government to entrust selection to an independent statutory body and, until that was done, to a body free of executive influence, and the question was how far a court may direct the executive on a matter of policy.
Held. 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 the legislature, executive and judiciary must function within their own spheres. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and the executive, but 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. The court cannot direct the executive on matters of policy or act as an appellate authority over it.
Why it matters here. It is the sentence that explains why the limits in Module IV are self-imposed, and why that is a reason to observe them rather than an excuse for ignoring them.
A worked example
A petitioner asks a High Court to direct the State to build a hospital in his taluka, to quash the transfer of a doctor made three years ago, and to decide whether he or a rival was the better candidate for a lectureship.
The first is refused because building a hospital is policy and allocation of resources: Asif Hameed. The second is refused for laches: three years is stale and third-party rights have grown up, on the reasoning of [Laches and Delay, which MU Prints as Latches]. The third is refused because comparative merit is for the expert body: University of Mysore v. C.D. Govinda Rao. Not one of the three refusals is a want of jurisdiction; every one of them is a limit, and two of the three are discretionary.
What this does NOT mean
It does not mean restraint is timidity. The same court that refuses to build a hospital will strike down a constitutional amendment.
It does not mean the limits are fixed. Public interest litigation moved several of them, and the abuse of it moved some of them back.
The Scope and Limits of the Judiciary's Power of Review
It does not mean a limit can be turned into an ouster. A court declining to interfere is exercising the jurisdiction, not losing it.
Quick revision
Scope: every organ, bodies beyond Article 12 through Article 226, non-statutory power, decisions made final by statute, and it cannot be excluded because it is basic structure. Limits: inherent ones, that review is of legality and not merits, no reappreciation of evidence, no substitution, no policy; and self-imposed ones, alternative remedy, laches, res judicata, disputed facts, conduct, academic questions and restraint in commercial matters. Asif Hameed is the authority for the self-imposed discipline of judicial restraint.
Test yourself
1. Give three propositions about the scope of review with an authority for each. It reaches bodies discharging a public duty even outside Article 12, Zee Telefilms; it reaches decisions made final even by a constitutional amendment, Kihoto Hollohan; and it cannot be taken away because it is part of the basic structure, L. Chandra Kumar.
2. Which limits are not discretionary? Those inherent in the nature of review: legality not merits, no reappreciation of evidence, no substitution of the court's own decision, no adjudication of policy.
3. What is the only check on the court's own power, according to Asif Hameed? 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.