LLM Group 1 Constitutional and Administrative Law Administrative Process and Judicial Control 2016 Question Paper with Solutions

Where the power comes from

Judicial review in India is textual, not implied. The United States Supreme Court had to derive it in Marbury v. Madison, 5 US 137 (1803), from the nature of a written constitution; in India the Constitution confers it expressly. Article 13 declares that laws inconsistent with or in derogation of the fundamental rights are void, and defines "law" to include ordinances, orders, byelaws, rules, regulations and notifications. Article 32 guarantees the right to move the Supreme Court for enforcement of fundamental rights, and Articles 226 and 227 give the High Courts a wider writ and supervisory jurisdiction. Articles 131 to 136 confer original, appellate and special leave jurisdiction, and Articles 245 and 246 with the Seventh Schedule make legislative competence a justiciable question.

The Constituent Assembly made the choice deliberately. Dr. Ambedkar described Article 32 as the very soul of the Constitution and its very heart, and the Assembly rejected the suggestion that the Court's power to test legislation should be curtailed, precisely because a Bill of Rights without a remedy is a declaration and not a law.

The second object: constitutional amendments

This is where Indian judicial review differs most sharply from the English and Australian models, and the sequence of cases must be given accurately. In Shankari Prasad v. Union of India, AIR 1951 SC 458, and Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, the Court held that an amendment under Article 368 was not "law" within Article 13 and so could not be tested against the fundamental rights. In I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, an eleven judge Bench reversed that by six to five, holding that an amendment is law and cannot abridge the fundamental rights, but applied the ruling prospectively.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, resolved it. Thirteen judges sat for sixty eight days on the challenge by the head of the Edneer Mutt to Kerala land reform legislation, and by seven to six the Court held that Parliament may amend any part of the Constitution, including the fundamental rights, but may not damage or destroy its basic structure. The basic features identified across the opinions include the supremacy of the Constitution, the republican and democratic form of government, its secular and federal character, the separation of powers, judicial review itself, free and fair elections and the rule of law.

The third object: administrative action

Administrative action is reviewed under the three heads of Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374: illegality, irrationality and procedural impropriety, with proportionality as a fourth. The Indian courts add the constitutional ground of arbitrariness under Article 14, after E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, which makes the Indian threshold of intervention lower than the English. The distinction that governs this branch is that review is directed at the decision making process and not at the merits of the decision, which Tata Cellular v. Union of India, (1994) 6 SCC 651, states as the rule for government contracts.

The second limit is the political question and the doctrine of justiciability. Courts decline matters that are constitutionally committed to another branch and admit of no judicially manageable standard: the wisdom of economic policy, as in Balco Employees Union v. Union of India, (2002) 2 SCC 333, where the Court refused to examine the merits of disinvestment in Bharat Aluminium and said that in matters of economic policy the court is not the forum and that it is not for the court to consider the relative merits of different economic policies; questions of foreign affairs and defence; and the internal proceedings of the legislature.

The third limit is self imposed and is the most important in practice. Judicial review is not an appeal, as Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155, put it in warning that review is concerned with the manner in which the decision was reached and not with the decision itself. The court will not substitute its own opinion for that of an expert body; will not direct the legislature to enact a law, nor ordinarily interfere with a policy choice; requires locus standi, though relaxed for public interest litigation; and applies the discretionary bars of laches, alternative remedy, res judicata under Daryao v. State of U.P., AIR 1961 SC 1457, and conduct.

A critical assessment

The case against the present scope must be stated, and stated at its strongest. The basic structure doctrine has no textual anchor: Article 368 says only that Parliament may amend "this Constitution", and the doctrine reads into it a limitation the framers did not write, on the authority of a seven to six majority. Critics add that its content is open ended, since a basic feature is whatever a majority of judges says it is, and that the doctrine was used in the NJAC case to strike down a unanimous constitutional amendment concerning judicial appointments, in which the Court had an institutional interest. Public interest litigation, similarly, has moved from correcting inaccessibility to supervising administration, which is why the Court itself had to lay down safeguards in State of Uttaranchal v. Balwant Singh Chauffal, (2010) 3 SCC 402, requiring verification of the petitioner's credentials and exemplary costs for petitions filed for oblique motives.

Conclusion. The scope of judicial review in India is unusually wide, because it is textually conferred by Articles 13, 32, 226 and 227, because it reaches all three of legislation, constitutional amendment and administrative action, and because Kesavananda Bharati placed the amending power itself under review through the basic structure doctrine, a step the courts of most constitutional democracies have not taken. Its limits are of four kinds: express constitutional bars, of which Articles 74(2), 122, 212 and the Tenth Schedule are the examples, each read narrowly by the courts; the exclusion of matters that are not justiciable, of which economic policy under Balco is the clearest; the self restraint that follows from the proposition that review is not appeal; and the institutional inability of a court to administer what it has ordered. The honest summary is that the scope is fixed by the Constitution and the limits are fixed largely by the judges themselves, and that this is both the doctrine's strength, since it allowed Kesavananda, Minerva Mills and Madras Bar Association, and its principal vulnerability to criticism.