What Judicial Review Is
Chapter Sixteen
Syllabus topic 2, "Judicial Review in India"
Pages 48 to 50 of 430
In one line
Judicial review is a court checking that a public body kept inside the law, and it is not a court deciding whether the body was right.
In the wording a student can write in an exam: judicial review is the power of a superior court to examine the legality of the action of the legislature, the executive and other public authorities, and to declare it void or to quash it where it exceeds the limits set by the Constitution or by the law; it is concerned with the decision-making process and not with the merits of the decision.
Why the law has this at all
Every public power in a constitutional State comes from somewhere: from the Constitution, or from an Act, or from a rule. A power that comes from somewhere has a boundary, because the instrument that gave it also described it. Judicial review is the mechanism by which the boundary is enforced, and without it the boundary would be a statement of good intentions.
That is why judicial review is not a courtesy the courts extend. It follows from the existence of a written constitution. If Article 13 says that a law inconsistent with a fundamental right is void, somebody has to decide when it is inconsistent, and the somebody is a court.
The single most valuable distinction in this book
Review is about legality. Appeal is about correctness.
An appellate court asks: was this decision right? It can reconsider the evidence, form its own view of the facts, and substitute its own conclusion. A court on review asks: was this decision lawfully reached? It looks at the authority's power, its procedure and its reasoning, and if the decision was lawfully reached it leaves it alone however much it disagrees.
Tata Cellular v. Union of India, AIR 1996 SC 11, states it as well as any case.
Facts. The Department of Telecommunications invited tenders to license cellular mobile telephone service in four metropolitan cities. The process ran through a Tender Evaluation Committee and a Telecom Commission. Unsuccessful bidders challenged the award, complaining among other things that the Director General, whose son was connected with a bidder, had taken part.
Held. The award was upheld and the limits of review were set out. The modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. It does not have the expertise to correct an administrative decision, and interference would only mean substituting its own decision, which it cannot do. The terms of the invitation to tender are not open to judicial scrutiny, being in the realm of contract. The Government must have freedom of contract, subject to fair play in action. Review lies for illegality, irrationality and procedural impropriety.
What Judicial Review Is
Why it matters here. It is the clearest Indian statement that review is of the process, and it is the case an examiner expects when the word restraint appears.
The distinction in a table
| Judicial review | Appeal | |
|---|---|---|
| Question asked | Was the decision lawfully made? | Was the decision correct? |
| Source | Inherent in the Constitution, Articles 32, 226, 227, 136 | A statute must confer it |
| Evidence | Not reappreciated | Reappreciated |
| Outcome | Quash and ordinarily remit | Substitute the correct decision |
| Grounds | Illegality, irrationality, procedural impropriety, and in India violation of fundamental rights | Any error of fact or law |
| Discretionary | Yes, the writ is discretionary | No, an appeal is a right if the statute gives it |
What judicial review covers
The legislature. Whether an Act is within the legislative competence of the body that passed it, and whether it violates the Constitution.
The executive and the administration. Whether an order was within power, made fairly, on relevant grounds and reasonably.
Delegated legislation. Whether a rule is within its parent Act and within the Constitution, which is Module IV.
Judicial and quasi-judicial decisions of subordinate bodies. Through certiorari and Article 227.
Where its authority comes from in India
Not from a section that says courts may review. From the structure of the Constitution and from four articles: Article 13, which makes an inconsistent law void; Article 32, which gives the Supreme Court the power to issue writs and makes the right to move it a fundamental right; Article 226, which gives every High Court a wider writ power; and Article 227, which gives superintendence over subordinate courts and tribunals. Article 136 adds a discretionary appellate jurisdiction which is not review in the strict sense but which does much of the same work.
A worked example
A State Public Service Commission selects candidates for the post of Assistant Professor. A rejected candidate complains that the selected candidate's research publications were weaker than his own, that one member of the interview board had supervised the selected candidate's doctorate, and that the marks allotted to the interview were changed after the interviews were over.
The first complaint is a merits complaint and the court will not entertain it: comparative academic worth is for the expert body, which is what University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491, decided. The second is a legality complaint: it is bias, and it goes to the process. The third is also a legality complaint: changing the criteria after the exercise has begun is arbitrary and violates Article 14. A student who cannot separate the first from the other two will write an appeal instead of a writ petition.
What Judicial Review Is
What judicial review is NOT
It is not a second opinion. If two views are possible and the authority took one of them, the court leaves it.
It is not available on the ground that the decision was unwise. Unreasonableness in the Wednesbury sense is a very high bar, worked in [Wednesbury Unreasonableness, which MU Prints as an Oppressing Decision].
It is not the same as judicial activism. Review is a jurisdiction; activism is a description of how energetically it is used.
It is not a right in the sense that the court must give relief. The writ is discretionary, and the whole of Module IV is about when the discretion is refused.
Quick revision
Judicial review is the examination by a superior court of the legality of public action. It is about the process and not the merits: review asks whether the decision was lawfully made, appeal asks whether it was correct. Tata Cellular is the Indian statement of restraint. It covers legislation, executive and administrative action, delegated legislation and the decisions of subordinate tribunals. Its authority in India comes from Articles 13, 32, 226 and 227, with Article 136 alongside. It is discretionary, and it is not activism, a second opinion, or a remedy for unwise decisions.
Test yourself
1. Give the distinction between review and appeal in one sentence each. Review asks whether the decision was lawfully made and leaves the merits alone; appeal asks whether the decision was correct and may substitute another.
2. Which four articles carry judicial review in India? Article 13, Article 32, Article 226 and Article 227, with Article 136 alongside them.
3. A tender is awarded to a bidder whose price was higher. Is that reviewable? Not on the ground that the price was higher, which is a merits question in the realm of contract. It is reviewable if the criteria were departed from, if there was bias, or if the process was arbitrary: Tata Cellular and R.D. Shetty.
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.