Download Chapter - 4 JUDICIAL ACTIVISM: CONCEPT AND

Chapter - 4
JUDICIAL ACTIVISM: CONCEPT AND HISTORICAL
BACKGROUND. JUDICIAL REVIEW
CONCEPT OF JUDICIAL ACTIVISM
Judicial activism has recently become a source of heated debate, especially in
the light of hyper activity witnessed in the judicial branch of government
throughout the states with federal structures. Over the past six decades, the
term judicial activism has also become an immensely popular tool for
criticizing judge’s behaviour. Moreover, through various controversial
decisions, judges of the Supreme Court and the High Courts of India, Justices
of the United States as well as other countries having federal set-up, have once
again triggered off the debate on judicial activism that has always generated a
lot of heat. Since a very long time, there has been a lively debate on the role of
judiciary in the governance of states. Judicial activism has emerged as the most
acceptable term to denote judicial intervention beyond its boundaries around
which such debates revolve. Despite the term’s prominence, due to one reason
or the other, the controversy about its definition has not been resolved and its
universally acceptable meaning still remains elusive. Some politicians would
like to call it as ‘Judicial Anarchy’, ‘Judicial Over-activism’ and ‘Judicial
Despotism’.1 This chapter is an attempt to bring out the various connotations of
judicial activism and to find out its effects on today’s changing society.
The term ‘judicial activism’ is generally used by scholars of social sciences to
describe a tendency by judges to consider outcomes, attitudinal preferences,
and other public policy issues in interpreting applicable existing laws. One of
the meanings of judicial activism is that the function of the court is not merely
to interpret the law but to make it by imaginatively sharing the passion of the
constitution for social justice.2 Therefore, judicial activism is formally
considered the opposite of judicial restraint, but it is also used pejoratively to
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describe activist judges who endorse a particular agenda. Although, alleged
activism may occur in many ways, the most debated cases involve courts
exercising judicial review to strike down statutes as unconstitutional. Views
about constitutional interpretation abound, ranging from strict constructionism
to the living constitution, and therefore, in practice, any controversial decision
striking down a statute may be labelled by the decision’s critics as judicial
activism.
Legislating from the bench is also a good way to describe judicial activism,
when judges dictate policy guidelines to other branches of government. 3
Judicial activism occurs when a judge or justice decides an issue based on
personal or political ideology or pressure from special interests instead of
abiding by the constitution or previous precedents. The United States has a
system of checks and balances to ensure that one branch of the federal
government will not become too powerful. Under the separation of powers
doctrine, only Congress has the power to legislate. Judicial activism violates
that separation of powers by effectively creating new law that often affects the
entire nation instead of settling the particular case at hand. It means that the
judiciary, which is appointed rather than elected and held accountable by the
people, does not have the authority to legislate. In other words, judicial
activism means a justice oversteps the jurisdiction of the court or creates a
ruling that radically diverges from common law, jurisprudence, and the intent
of the constitution. Judicial activism may also be a case of judges or justices
over-ruling existing law, or creating legal doctrines without precedent or
support which undermine or recreate policies, usually social policies.
DEFINITIONS:
Of late, the term judicial activism has become more popular, but its meaning
and definitions have become correspondingly and increasingly, ambiguous
because at present judicial activism is defined in a number of disparate, even
contradictory ways; scholars and judges recognize this problem, yet persist in
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speaking about the concept without defining it. Thus, the problem continues
unabated: people talk past one another, using the same language to convey very
different concepts.4 In order to comprehend the phenomenon, it will be
convenient to discuss some lexicon as well as scholarly definitions of the
concept. Merriam-Webster's Dictionary of Law defines judicial activism as
“the practice in the judiciary of protecting or expanding individual rights
through decisions that depart from established precedents or, are independent
of or, in opposition to supposed constitutional or legislative intent.”5 The term
judicial activism has also been defined in many ways by legal scholars. It
would be pertinent here to refer to many legal sources in order to reach a
considered conclusion. In the Harper Collins Dictionary of American
Government and Politics, the term judicial activism has been defined as “the
making of new public policies through the decisions of judges.” Black’s Law
Dictionary defines it as “a philosophy of judicial decision making whereby the
judges allow their personal views about public policy, among other factors, to
guide their decisions.”6
While in the US, both the views are prevalent, in the developing world, the
view commonly held is that the court should function as an instrument to
achieve desired social results. It is widely believed that the judges should not
hesitate to go beyond their traditional role as interpreters of the constitution and
laws in order to assume a role as independent trustees on behalf of society. The
reason for widespread acceptance of this view is that in these countries the
executive and legislature have failed to ensure good governance and provide a
fair deal to their citizens.7
In the developing countries like India, it is generally believed that the concept
of judicial activism contributed to uphold the rule of law and consequently, it
has a positive impact on governance. In some of the Indian experiences
judiciary has been able to keep up the standards of good governance in the face
of corruption, failed political processes, incompetent political elite and lack of
respect for human rights. Some scholars in India have defined it in the context
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of Public Interest Litigation (PIL) or Social Action Litigation (SAL) or Private
Attorneys of Law (PAL). For example, K.L. Bhatia has outlined the
imperatives of judicial activism in the context of widening the perspectives of
locus standi as follows: Judicial activism, in India, is a movement from
personal injury to public concern by relaxing, expanding, and broadening the
concept of locus standi. Judicial activism is correlated, with a progressive
movement from ‘personal injury standing’ to ‘public concern standing’ to
allowing access to justice to pro bono publico, that is, public spirited
individuals, groups and organizations, on behalf of ‘lowly and lost’ or
‘underprivileged’ or ‘underdogs’ or ‘littlemen’ who, on account of constraints
of money, ignorance, illiteracy, have been bearing the pains of excesses
without access to justice.8
Although it is true that in the eyes of some critics the Indian judiciary is also
acting as a ‘third chamber’ and a ‘super executive’ yet, some scholars deny the
very existence of the term.9 They are of the view that the judiciary is doing its
primary duty and nothing more. J. Kuldeep Singh, former judge of Supreme
Court of India, blazed this new trend.10 Some other ‘legal-eagles’ steered the
same course and referred to judicial activism as a ‘myth’ or as a ‘farcical
term.’11–12 However, ‘judicial activism’ which has been a uniquely American
development has been defined in Indian context, in many ways. In the words of
Surya Deva, “Judicial Activism refers to the phenomenon of the courts dealing
with those issues which they have traditionally not touched or which were not
in the contemplation of the founding fathers. It is a state of mind, the origin of
which lies in the ‘inactivism’ of other two wings of the government.”13 Thus,
Surya Deva emphasized the ‘inactivism’ on the part of the legislature and the
executive. It is because of the violation of people’s rights that judiciary has
come to their rescue. On the one hand, it has to ensure that any law passed by
the legislature is in conformity with the provisions of the constitution and on
the other hand, it has to assure the citizens, the effective implementation of
these laws without executive’s move beyond its powers. The aforesaid
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phenomenon given by Surya Deva is encouraged by Ashok Kumar Johri as he
writes: Judicial activism, in fact, is not distinctly separate concept from usual
judicial activities. The expression ‘activism’, lexically as well as in ordinary
parlance, means ‘being active’, ‘doing things with decision’ and the expression
‘activist’ should mean ‘one who favours intensified activities’. In this sense
every judge is, or at least, should be an activist, as Justice Krishna Iyer
observed, “Every judge is an activist either on the forward gear or the reverse.”
Thus, A.K. Johri preferred sweeping generalization while referring to every
judge as an ‘activist’.14
However, from this observation, we can easily make out that activism, or
otherwise, depends on the judge’s personal subjectivity. Very recently, Justice
Gulab Chand Gupta has enunciated judicial activism as “legislature, while
enacting a law, cannot visualize all situations arising in future and needing the
support of law. New situations generally and usually develop and the law has to
be so interpreted and applied to solve problems arising out of such situations.
In this process, the judicial creativity or craftsmanship is utilized to fill in the
gaps between the law and the law as it ought to be. In this process it is the
ability of ‘proper perception’ and commitment to proper social values. This
judicial creativity is called judicial activism.”15
Thus, it affirmed the opinion of Justice V.G. Palshikar who has asserted that
judicial activism means “an active interpretation of existing legislation by a
judge, made with a view to enhance the utility of legislation for social
betterment.”16 Similarly, Justice J.S. Verma has been more emphatic in laying
down the exact norms of sufficient activist criterion. The learned judge has
remarked that judicial activism is required only when there is inertia in others.
Proper judicial activism is that which ensures proper functioning of all other
organs and the best kind of judicial activism is that which brings about results
with the least judicial intervention. If everyone else is working, we don’t have
to step in.17
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In this way, by stretching the letter of the law a little and acting according to
the spirit behind it, the judiciary has intervened in cases where there is blatant
misuse of discretion of executive authority or a lackadaisical attitude towards
booking the corrupt and other anti-social elements in society. Therefore, some
scholars went to the extent of saying that the time has now come when courts
must become the courts for the poor and struggling masses of the country. They
must shed their character as upholders of the established order and the status
quo. They must be sensitized to the need of distributing justice to the large
masses of people to whom it has been denied by a cruel and heartless society
for generations.18 In support of this assertion, Lord C. J. Hewart has asserted,
“It is of fundamental importance that justice should not only be done, but
should manifestly and undoubtedly be seen to be done.”19 Similarly another
American Judge, Mr Bensan said once, “Nothing reckless more in human heart
than broadening sense of injustice. Unless we can put up with, but injustice
makes it want to pull things down.”20
In a democratic society, most probably there are two approaches to any
judicial role, performance and perception. The judiciary can adopt a pro-active
approach or it can act within the boundaries of self-restraint. Before peeling
away the layers of the development of judicial activism, we should peep into
the historical background of the phenomenon which caused the emergence of a
pro-active judiciary. As students of social science, we find that the doctrine of
judicial activism in the Indian democracy is worth a study compared to that in
vogue in the U.S.A. and it will become clear after analysing the historical
background of the concept.
HISTORICAL SKETCH OF THE CONCEPT
The idea of judicial activism has been around far longer than the term itself.
Before the twentieth century, legal scholars squared off over the concept of
judicial legislation, that is, judges making positive law. Where Blackstone
favoured judicial legislation as the strongest characteristic of the common law,
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Bentham regarded this as a usurpation of the legislative function and a charade
or ‘miserable sophistry.’ Bentham, in turn, taught John Austin, who rejected
Bentham's view and defended a form of judicial legislation in his famous
lectures on jurisprudence. However, in the first half of the twentieth century,
a flood of scholarship discussed the merits of judicial legislation, and
prominent scholars took positions on either side of the debate.21 Thus, the seeds
of judicial activism were sown by English concepts like ‘equity’ and ‘natural
rights’ and on the American soil, it blossomed into the concept of ‘judicial
review.’
Criticism of constitutional judicial legislation was particularly vehement during
the Lochner era. Critics assailed the court’s preference for business interests as
it repeatedly struck down social legislation in the name of substantive ‘Due
Process.’ While some modem scholars consider Lochner and its progeny
virtually synonymous with ‘judicial activism’, the term is conspicuously absent
from contemporaneous criticism. The New Deal and the ‘Revolution of 1937’
ushered in another spate of critical commentary, but again, contemporaneous
literature does not mention ‘judicial activism’ by term. However, in its early
days, the term ‘judicial activist’ sometimes had a positive connotation, much
more akin to ‘civil rights activist’ than ‘judge misusing authority.’ Years later,
the justices agreed that the New Deal was on firm constitutional ground, the
term finally surfaced in legal discourse.22
First Recorded Use
The first use of the term judicial activism to attract substantial attention from
the public occurred in ‘Fortune’, a popular magazine, in an article meant for
general addressees written by a non-lawyer, Arthur Schlesinger Jr., in January
1947. Schlesinger's article profiled all nine Supreme Court justices on the
Court at that time and explained the alliances and divisions among them. The
article characterized Justices Black, Douglas, Murphy, and Rutlege as the
‘judicial activists’ and Justices Frankfurter, Jackson, and Burton as the
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‘Champions of Self Restraint.’ Justice Reed and Chief Justice Vinson
comprised a middle group.23
By 1947, none of the justices in the American court openly questioned the
constitutionality of the New Deal. Instead, the court split over the interpretation
of legislation and ‘the proper functions of the judiciary in a democracy.’
Schlesinger describes the competing approaches. This conflict may be
described in several ways. The Black-Douglas group believes that the Supreme
Court can play an affirmative role in promoting the social welfare; the
Frankfurter-Jackson group advocates a policy of judicial self-restraint. One
group is more concerned with the employment of the judicial power for their
own conception of the social good; the other with expanding the range of
allowable judgment for legislatures, even if it means upholding conclusions
they privately condemn. One group regards the Court as an instrument to
achieve desired social results; the second as an instrument to permit the other
branches of government to achieve the results the people want, for better or
worse. In brief, the Black-Douglas wing appears to be more concerned with
settling particular cases in accordance with their own social preconceptions; the
Frankfurter-Jackson wing with preserving the judiciary in its established but
limited place in the American system.24
The first landmark judgement in this regard was the case of Marbury v.
Madison that paved the way for judicial opposition to the legislative
omnipotence. In this case, for the first time the judiciary took an active step and
took a step above the legislative actions. Marbury was appointed judge under
the Judiciary Act of 1789 by the U.S. Federal Government. Though the warrant
of appointment was signed, it could not be delivered. Marbury brought an
action for issue of a writ of mandamus. By then, Marshall became the Chief
Justice of the Supreme Court having been appointed by the outgoing President,
who lost the election. Justice Marshall faced the imminent prospect of the
Government not obeying the judicial fiat if the claim of Marbury was to be
upheld. In a rare display of judicial statesmanship asserting the power of the
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Court to review the actions of the Congress and the executive, chief justice
Marshall declined the relief on the ground that Section 13 of the Judiciary Act
of 1789, which was the foundation for the claim made by Marbury, was
unconstitutional since it conferred in violation of the American Constitution,
original jurisdiction on the Supreme Court to issue writs of mandamus. He
observed that the Constitution was the fundamental and paramount law of the
nation and it is for the court to say what the law is. He concluded that the
particular phraseology of the Constitution of the United States confirms and
strengthens the principle supposed to be essential to all written Constitutions.
That a law repugnant to the Constitution is void and that the courts as well as
other departments are bound by that instrument. If there was conflict between a
law made by the Congress and the provisions in the Constitution, it was the
duty of the court to enforce the Constitution and ignore the law. This judgment
received lots of criticism from different quarters, but judicial review was here,
and it was here to stay.
Amendment to the constitution comes about for a reason - to overrule a
Supreme Court decision, to force a societal change, or to revise the details of
the constitution.25 The first amendment to the U.S. Constitution was written
because the federal government under that proposed Constitution wielded too
much power over the public. At America’s inception, citizens demanded a
guarantee of their basic freedoms like protection of freedom of speech, press,
religion, assembly and petition. The U.S. Constitution was signed on Sept. 17,
1787, did not contain the Bill of Rights. However, after vigorous debate, the
Bill of Rights was adopted. The first freedoms guaranteed in this historic
document were written by James Madison that is known as the First
Amendment; The Bill of Rights.26
Marbury v. Madison (1803)
In the Judiciary Act of 1789, Congress gave the Supreme Court the authority to
issue certain judicial writs. The Constitution did not give the Court this power.
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Because the Constitution is the supreme law of the land, the Court held that any
contradictory congressional Act is without force. The ability of federal courts
to declare legislative and executive actions unconstitutional is known as
judicial review.
John Adams’ presidency appointed political friends and allies to the positions
of judgeships. It turned out to be the last gasp of the Federalist Party, done just
before Thomas Jefferson took office. Two important appointments were, of
John Marshall to the position of Chief Justice of the Supreme Court and,
William Marbury to a judgeship. When the new administration did not deliver
the commission, Marbury sued James Madison who was Jefferson's Secretary
of State. At that time the Secretary of State was charged with certain domestic
duties as well as with conducting foreign affairs. Chief Justice John Marshall
held that, although Marbury was entitled to the commission, the statute that
was the basis of the particular remedy sought was unconstitutional because it
gave the Supreme Court authority that was implicitly denied it by Article 3 of
the U.S. Constitution. The decision was the first by the Supreme Court to
declare unconstitutional and void, an Act passed by Congress that the Court
considered was in violation of the Constitution. The decision established the
doctrine of judicial review, which recognizes the authority of courts to declare
statutes unconstitutional.27 This case was the first instance in which a law
passed by Congress was declared unconstitutional. The decision greatly
expanded the power of the Court by establishing its right to overturn acts of
Congress, a power not explicitly granted by the Constitution.
In the initial stages, only in respect of substantive laws, the doctrine of due
process was applied but later the procedural laws were also brought within its
purview. Between 1789 and 1860, only 2 Acts of Congress and some 60 state
enactments had been declared void by the Court and from1898 to 1937, the
American Supreme Court declared 50 Congressional enactments and 400 State
laws as unconstitutional.28
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Power of judicial review got in heritage, the American judiciary commenced
the modern concept of judicial activism in 1954 in the case of Brown v. Board
of Education where the Supreme Court of America struck down the laws of
segregation of Negroes especially in the field of public education. By a series
of judgements after Brown v. Board of Education, the court ruled out all the
laws which legally segregated the Negroes in almost all the fields of day to day
life. The court not only abolished the laws, which did not confirm to the desired
constitutional norms but also encompassed several rights which were not
clearly mentioned in the Constitution. Slowly the sphere of standing got
enlarged and the Court gave a liberalized interpretation of the rule of locus
standi in several cases.29 Thus, there is not a clear move towards expansion of
rights, which has made a profound impact on the everyday changing face of
judicial activism.
McCulloch v. Maryland (1819)
Maryland imposed a tax on the Bank of the United States and questioned the
federal government’s ability to grant charters without explicit constitutional
sanction. The Supreme Court held that the tax unconstitutionally interfered
with federal supremacy and ruled that the Constitution gives the federal
government certain implied powers.
This case decided in 1819 by the U.S. Supreme Court, dealing specifically with
the constitutionality of a Congress-chartered corporation, and more generally
with the dispersion of power between state and federal governments. After the
First Bank of the United States (1791) had folded in 1811 due to a lack of
congressional support, inflation in the years following the War of 1812
compelled Congress to establish (1816) a new national bank. The Second Bank
of the United States was authorized by Congress to help control the unregulated
issuance of currency by state banks. Many continued to oppose the bank’s
constitutionality, and Maryland set an example by imposing a tax on all banks
not chartered by the state. When the U.S. branch bank in Baltimore refused to
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pay taxes, Maryland brought suit for collection from the bank. Chief Justice
John Marshall, who wrote the uncontested opinion, gave trenchant expression
to the doctrine of implied powers: “Let the end be legitimate, let it be within
the scope of the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional.”30 The chartering of a bank,
according to the Court, was a power implied from the power over federal fiscal
operations. Because the state cannot impede constitutional federal laws, the tax
was voted unconstitutional. One of the most important decisions in the history
of the U.S. Supreme Court, Marshall’s opinion called for a broad interpretation
of the powers of the federal government. The case became the legal
cornerstone of subsequent expansions of federal power.
Ultimately, the case upheld the right of Congress to create a Bank of the United
States, ruling that it was a power implied but not enumerated by the
constitution. The case is significant because it advanced the doctrine of implied
powers, or a loose construction of the constitution. The Court, Chief Justice
John Marshall wrote, would sanction laws reflecting “the letter and spirit” of
the Constitution.31
The experience of judicial activism in India can be traced back from 1893,
when Justice Mehmood of the Allahabad High Court delivered a dissenting
judgement which sowed the seeds of judicial activism in India. It was a case of
an under trial who could not afford to engage a lawyer. So the question was
whether the court could decide his case by merely looking at his papers. Justice
Mehmood held that the pre-condition of the case being ‘heard’ (as opposed to
merely being read) would be fulfilled only when somebody speaks. 32 So he
gave the widest possible interpretation of the relevant law and laid the
foundation stone of the judicial activism in India. However, ‘Judicial
Activism’, as it is used in the modern parlance, originated in India later on. It
was due to the executive abuses or interference in the due course of legal
proceedings that judiciary had to intervene.
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With the attainment of independence, there have been prevailing some sorts of
hostile relations among the three principal branches of the government in India.
Moreover, fulfilling a minimum administrative responsibility, the bureaucracy
has become a device for furthering personal rather than public interest.
Exploitation and injustice are therefore built into the present political system
and one cannot expect the rules or the executive to correct the daily injustice
faced by a majority of common population.33
There have been a number of problems and evils emerging in the sociopolitical infrastructure of the country with mushrooming growth of illegal
activities that affected the major branches of the government.34 Consequently,
the commoners have to bear the brunt of all the aforesaid issues and evils. This
exploitative and oppressive environ raised some urgent demands which could
not wait for Parliament to attend to the issue. Judges were, therefore, less
inclined to leave law reform to Parliament.35 Justice Krishna Iyer explained this
climax in a judgement, “Though legislation was the best solution, but when
lawmakers take far too long, for social patience to suffer. Courts have to make
do with interpretation and carve on wood and sculpt on stone without waiting
for the distant marble.”36 Henceforth, the doctrine of judicial activism was
introduced with the historic instance of Mumbai Kamgar Sabha v. Abdul Bhai
without its nomenclature.37 It was in Maneka Gandhi’s case where the apex
court, even against the intention of the framers of the Constitution, substituted
the ‘due process clause’ in Article 21 instead of procedure established by law.
Deprecating absolutism of the executive and its interference with individual
freedom Justice Bhagwati deliberately included the clauses.38 Likewise, in
some other cases judicial activism or its blunt variant, PIL kept on proving their
ability to expose many scams, to provide remedial justice to the citizens and to
enhance their rights.
In a nutshell, although the concept of judicial activism is a highly debated
phenomenon yet, it cannot be denied that it has done a lot to ameliorate the
conditions of the masses in the country. It has set right a number of wrongs
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committed by the states as well as by individuals.39 The common people are
very often denied the protection of law due to delayed functioning of the
courts, also called judicial inertia or judicial tardiness.40 Judicial activism has
started the process to remove these occasional aberrations too. This can be
furthered only by honest and forthright judicial activism and not by running
down the judiciary in the eyes of the public. The greatest asset and the
strongest weapon in the armoury of the judiciary is the confidence it commands
and the faith it inspires in the minds of the people in its capacity to do evenhanded justice and keep the scales in balance in any dispute.
JUDICIAL REVIEW
Judicial review is the doctrine under which a country’s courts examine the
actions of the legislative, executive and administrative branches of government
to ensure that their actions conform to the provisions of the constitution. It is
expected that in every civilized society, all courts having the power of judicial
review must annul the acts of other branches of government when they find
them incompatible with the provisions of the Constitution. In other words, if
the court comes across actions that do not conform to the sacred document are
unconstitutional and therefore, null and void. The institution of judicial review,
in this sense, depends upon the existence of a written constitution. The
conventional usage of the term judicial review could be more accurately
described as ‘constitutional review,’ because there also exists a long practice of
judicial review of the actions of administrative agencies that require neither
that courts have the power to declare those actions unconstitutional nor that the
country have a written constitution.41 The principle of judicial review is used in
the Commonwealth countries as part of the working machinery of governments
of countries such as Canada, Australia and the Union of South Africa.42 The
constitutional practice of judicial review is not only prevalent in
Commonwealth nations but also in other countries like Japan Germany, Italy,
and the United States. Judicial review is an example of the operation of
separation of powers in a modern governmental system where the judiciary is
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one of the three branches of government. This principle is interpreted
differently in various jurisdictions, which also have differing views on the
specific hierarchy of governmental norms. As a result, the procedure and scope
of judicial review differs from country to country and state to state.
Judicial review can be explained by two distinct but convergent legal systems
i.e. civil law and common law, and also by two distinct theories on democracy
and how a government should be set up i.e. the ideas of legislative supremacy
and separation of powers. First, two distinct legal systems, civil law and
common law have different views about judicial review. Though civil law has
its roots in Corpus Juris Civilis, the name Corpus Juris Civilis occurred for the
first time in 1583 as the title of a complete edition of the Justinian code by
Dionysius Godofredus.43 Other historical events have had profound effects on
its development over the last fifteen hundred years. Legislative supremacy or
parliamentary sovereignty was one of the basic ideas underlying the
Napoleonic code of 1804. Secondly, the idea of legislative supremacy is that
the legislative body should be superior and consequently more powerful than
other branches of government. The inequality of powers among the three
branches of government is justified for the legislative branch because it is the
only representative body the people who choose it through popular elections.
Therefore, in such a system, judicial branch is prohibited from challenging
laws enacted by the legislative branch. Consequently, the lack of judicial
review denies the judicial branch a necessary check on the powers of the
legislative branch. No one would deny the fact that under such a scenario, there
is not a check on the legislative branch which creates an unfair advantage in the
state and federal government for law makers.
An overview of controversial and exemplary court cases which sowed the
seeds of judicial review are being discussed below:
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Brown v. Board of Education (1954)
Nine black students were allowed into a white school, previously segregated.
This was the landmark case in the battle for black civil rights. The judicial
activism displayed by the Supreme Court led to an end to segregation, social
equality for blacks and allowed them to reach respected positions in the
American society.
Brown v. Board of Education of Topeka, Kans., case decided by the U.S.
Supreme Court in 1954. Linda Brown was denied admission to her local
elementary school in Topeka because she was black. When, combined with
several other cases, her suit reached the Supreme Court, that body, in an
opinion by recently appointed Chief Justice Earl Warren, broke with long
tradition and unanimously overruled the “separate but equal” doctrine of Plessy
v. Ferguson, holding for the first time that de jure (legally imposed)
segregation in all areas of public life violated the principle of equal protection
under the law guaranteed by the Fourteenth Amendment to the U.S.
Constitution. Responding to legal and sociological arguments presented by
NAACP (The National Association for the Advancement of Colored People)
lawyers led by Thurgood Marshall, who successfully argued the case, the court
stressed that the ‘badge of inferiority’ stamped on minority children by
segregation hindered their full development no matter how ‘equal’ physical
facilities might be. After hearing further arguments on implementation, the
court declared in 1955 that schools must be desegregated ‘with all deliberate
speed.’44 Restricted in application to de jure segregation, the Brown rule was
applied mainly to Southern school systems. After strong resistance, which led
to such incidents as the 1957, Little Rock, Ark., School Crisis integration
spread slowly across the South, under court orders and the threat of loss of
federal funds for noncompliance. The Brown decision gave tremendous
impetus to the civil-rights movement of the 1950s and 1960s, and hastened
integration in public facilities and accommodations. Segregation maintained by
more subtle and intractable forces, however, has remained an important
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element in American society. De facto school segregation, caused by
residential housing patterns and various other conditions rather than by law, has
been attacked by the abusing of students and other mechanisms.45
Cooper v. Aaron (1958)
Several government officials in southern states, including the governor and
legislature of Alabama, refused to follow the Supreme Court’s Brown v. Board
of Education decision. They argued that the states could nullify federal court
decisions if they felt that the federal courts were violating the constitution. The
court unanimously rejected this argument and held that only the federal courts
can decide when the constitution is violated.
After the Brown v. Board of Education decision was handed down from the
United States Supreme Court in 1954, the Little Rock, Arkansas School
District adopted a plan to desegregate public schools based on a two and onehalf year plan. The plan was to implement desegregation beginning in 1957 at
the high school level, followed later by the junior high and elementary levels.
In November 1956, an amendment was made to the Arkansas State
Constitution that commanded the Arkansas General Assembly to oppose
desegregation. The amendment stated that desegregation was unconstitutional
and established a law in Arkansas stating that children were relieved from
compulsory attendance at racially mixed schools. Still, the school board
continued plans for desegregation and scheduled nine African American
students for admission to Central High School beginning on September 3,
1957.
On September 2, 1957, the Governor of Arkansas dispatched units of the
Arkansas National Guard to the Central High School grounds to make the
school inaccessible to African American students. School authorities had not
requested that such actions occur, but rather had discussed potential problems
of violence with the mayor and chief of police of Little Rock, who were
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prepared to deal with the potential violence. This action by the Governor
prompted the school board to request African American students not to attend
the school until the problem was resolved. On September 3, 1957, the school
board petitioned the District Court for an alternate course of action to the
original desegregation plan to which the court replied the plan should remain
intact as originally set out.
The following day, the African American students attempted to enter the school
building and were again prevented from doing so by the National Guard troops.
This continued for three weeks. The school board petitioned the District Court
for an order that would temporarily suspend the desegregation program. Such
order was denied on September 7. The District Court requested the United
States Attorney for the Eastern District of Arkansas to begin an immediate
investigation to correct the interference with the court order to end segregation.
Following investigation, the District Court found that the Governor had
disrupted the school board’s plan by using National Guard troops and granted a
preliminary injunction on September 20, 1957, preventing the Governor and
National Guard from interfering with the orders of the court in carrying out the
desegregation plan.
Beginning September 23, 1957, the African American students entered the
school, but later had to be removed by the Little Rock police due to
demonstrations against them. On September 25, 1957, the President of the
United States sent federal troops to Central High School to allow the admission
of the African American students. Eight of the African American students
remained in the school for the entire school year.
The school board and Superintendent of Schools filed a petition in District
Court on February 20, 1958, requesting to postpone their program for
desegregation. The reason for their petition was that public hostility was
disrupting the possibility for a sound educational program at a racially
segregated school. They believed the hostility was the direct result of the
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actions of the Governor and Legislature. The District Court granted the relief
requested by the school board, stating that the past year in the desegregated
school had been one of chaos and turmoil in which the African American
students endured violence against them and their property, created high tension
among teachers and parents, and had an adverse effect upon the educational
program. In addition, the school had suffered financially. 46
The African American students filed an appeal to the Court of Appeals and a
petition for certiorari to the United States Supreme Court. The Court of
Appeals reversed the decision of the District Court. The petition for certiorari
was granted, and the Supreme Court reviewed the facts and affirmed the
decision of the Court of Appeals. The Supreme Court determined that the
school board had demonstrated good faith in their attempts to carry out their
plan of desegregation, and that the conditions at Central High School had
caused the school to suffer. In making its decision, the Supreme Court applied
the principle of the Fourteenth Amendment that states that no state shall deny
any person within its jurisdiction the equal protection of the laws, thereby
enforcing and reinstating the school board’s plan for desegregation in
compliance with the Brown v. Board of Education decision.47
The Origin of Judicial Review
It is a fact that judicial review is not mentioned in the US Constitution, nor was
it discussed at the Constitutional Convention in 1787. 48 It has, however, been
often contented that the practice of judicial review can be traced back to the
colonial period when the Privy Council in London acted as a final court of
appeal and assumed the right to strike down colonial legislations that did not
conform to the English Constitution. The federal judiciary’s right to exercise
judicial review was boldly asserted by Alexander Hamilton in Federalist Paper
No. 78 when he said, “The interpretation of the laws is the proper and peculiar
province of the courts. A constitution is, in fact, and must be regarded by the
judges as, a fundamental law. It, therefore, belongs to them to ascertain its
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meaning as well as the meaning of any particular act proceeding from the
legislative body.”49
The principle of judicial review was further elaborated and justified in one of
the most famous US Supreme Court decisions, Marbury v. Madison, when
parts of the Federal Judiciary Act of 1789 was declared unconstitutional. Chief
Justice John Marshall, on behalf of the Court, noted that, ‘the Constitution
organizes the government, and assigns to different departments their respective
powers.’50
There is no denying that the supremacy of the constitution over legislative Acts
must be safeguarded at all costs to give effect to the pre-requisite of
constitutional supremacy in a federal set-up, especially for adjudication
regarding constitutionality of legislations. In practice, however, such
arrangements pose complex problems. One of them being that those appointed
to the courts are often selected for political reasons, and many often do not
show much reluctance to import their personal, political preferences into their
judicial decisions and rulings. This, however, would have lesser effect if the
constitution is not a brief, ambiguous and often vague in its provisions that may
be subjected to many interpretations and profound disagreements.
Scholars have also a cause for concern among, as some observe, that judicial
review allows unelected judges, appointed for life, to become the ultimate
arbiters of public policy-making, able to defy even the wishes of the majority,
and thereby violate basic principles of liberal democracy. In response to such
complaints it can be argued that the federal courts are not immune to the will of
the people. The appointment process, for instance, allows elected officials to
exercise influence on the judiciary; the President in USA nominates federal
judges subject to the advice and consent of the Senate for their appointments. 51
Again Hamilton noted in Federalist Paper No. 78, checks and balances
incorporated in the Constitution ensure that the courts constitute the ‘least
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dangerous’ branch of the government. Thus, the scope of the appellate
jurisdiction of the Supreme Court is subject to the will of Congress and, while
the latter possesses the power of the purse and the executive, the power of the
sword, the Court has no means of enforcing its decisions. It is also the case that
the Supreme Court has shown itself to be capable of reversing its earlier
decisions that no longer meet with popular support. It is also possible to
impeach judges, or to overturn their decisions by the process of constitutional
amendment.52 Thus, judicial review is a key feature of the separation of powers
doctrine, as it has developed in the United States. Yet, there is a tension
between judicial review and representative democracy, a tension captured well
by Abraham Lincoln in his First Inaugural Address, “If the policy of the
government upon vital questions affecting the whole people, is to be
irrevocably fixed by decisions of the Supreme Court…the people will have
ceased to be their own rulers, having to that extent, practically resigned to their
government into the hands of that eminent tribunal.”53 The Supreme Court of
the USA overruled this proclamation, and declared its own powers, “If it
appears that an act of Congress is not pursuant to and within the limits of the
power assigned to the Federal Government, it is the duty of the courts of the
United States to declare it unconstitutional and void.”54
Judicial Review of Administrative Acts
In a modern legal system, it is the power of a court to review the actions of
government (public) bodies in terms of their legality or constitutionality i.e.
individual decisions of public bodies, such as decisions to grant a subsidy or to
withdraw a residence permit, etc. In most of the systems, this also includes
review of secondary legislation i.e. legally enforceable rules of general
applicability adopted by administrative bodies. Some countries, most notably
France and Germany, have implemented a system of administrative courts, that
are charged exclusively with deciding on disputes between the members of the
public and the administration. In other countries, including the United States,
United Kingdom and Netherlands, judicial review is carried out by regular civil
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courts, although it may be delegated to specialized panels within these courts,
such as the Administrative Court within the High Court of England and
Wales.55
The United States employs a mixed system in which some administrative
decisions are reviewed by the United States district courts, which are the
general trial courts, some are reviewed directly by the United States courts of
appeals, and others are reviewed by specialized tribunals such as the United
States Court of Appeals for Veterans’ Claims which, despite its name, is not
technically part of the federal judicial branch.56 It is quite common that before a
request for judicial review of an administrative act is filed with a court, certain
preliminary conditions, such as a complaint to the authority itself, must be
fulfilled. In most countries, the courts apply special procedures in
administrative cases.
Gideon v. Wainwright (1963)
In 1961, Clarence Earl Gideon was arrested in Florida for allegedly
burglarizing a pool room. Being a destitute person, he petitioned the judge to
provide him with an attorney free of charge. The Florida court refused to
appoint a lawyer. Gideon had to defend himself. Gideon was convicted and
sentenced to five years in prison. He wrote to the Supreme Court, pleading for
a hearing in a hand-written motion, claiming he had been denied due process
by being denied a lawyer. The Supreme Court ruled for Gideon, saying that the
Sixth Amendment requires indigent criminal defendants to be provided an
attorney free of charge is fundamental to a fair trial.
The Supreme Court granted a hearing, and appointed Gideon a lawyer, Abe
Fortas, who later took a seat on the Court. Fortas argued that the Court’s prior
decision, Betts v Brady, needed to be overturned. The Court agreed and
unanimously overturned Betts. Gideon was granted a new trial, and was
acquitted. This case firmly established one of our most cherished rights, that to
have an attorney, even if one must be appointed. 57
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Miranda v. Arizona (1966)
After hours of police interrogations, Ernesto Miranda confessed to rape and
kidnapping. At trial, he sought to suppress his confession, stating that he was
not advised of his rights to counsel and to remain silent. The Supreme Court
agreed, holding that police must inform suspects of their rights before
questioning.58
It was another case that helped define the due process clause of the 14th
Amendment. At the centre of the case was Ernesto Miranda, who had
confessed to a crime during police questioning without knowing he had a right
to have an attorney present. Based on his confession, Miranda was convicted.
The Supreme Court overturned the conviction, ruling that criminal suspects
must be warned of their rights before they are questioned by police. These
rights are: the right to remain silent, to have an attorney present, and, if the
suspect cannot afford an attorney, to have one appointed by the state. The
police must also warn suspects that any statements they make can be used
against them in court. Miranda was retried without the confession and
convicted.59
Terry v. Ohio (1968)
Observing Terry and others acting suspiciously in front of a store, a police
officer concluded that they might rob it. The officer stopped and frisked the
men. A weapon was found on Terry and he was convicted of carrying a
concealed weapon. The Supreme Court ruled that this search was reasonable.
This case was the first in a long line of Supreme Court cases that recognized
the police practice known as ‘stop and frisk’ as a legitimate law enforcement
tool. Stop and frisk is a stopping and interrogation or brief investigation which
may be accompanied by the patting down of outer clothing to make sure the
suspect is not armed.60
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The Supreme Court ruled that, for the protection of an officer, stop and frisk
was not a violation of the fourth Amendment when a police officer’s
experience tells him that criminal activity may be occurring and that the
suspected criminal may be armed and dangerous. 61
However, judicial review of administrative actions has been a traditional
function of the courts. After World War II, courts became more vigilant and
demanded that although they would not substitute their decision for that of the
decision of the administrative authority, they would require the administrative
authorities to satisfy them that all relevant matters had been considered. This is
known as Wednesbury Principle.62
U.S. v. Nixon (1974)
The special prosecutor in the Watergate affair subpoenaed audio tapes of Oval
Office of White House conversations. President Nixon refused to turn over the
tapes, asserting executive privilege. The Supreme Court ruled that the
defendants’ right to potentially exculpating evidence outweighed the
President’s right to executive privilege if national security was not
compromised.63
The early 1970s was a time of growing distrust in the National Government.
The Pentagon Papers exposed the intentional deception of the American people
about Vietnam. Americans were shocked when the National Guard opened fire
at a Kent State University protest following President Nixon’s authorization for
the United States to attack Cambodia. Four students were killed. Nixon would
soon add more fuel to the fire, attempting to cover up illegal actions by himself
and his administration.
In June 1972, five men armed with cameras and bugging equipment were
arrested inside the Democratic National Committee’s offices in the Watergate
complex in Washington, D.C. Police soon discovered that the burglars worked,
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directly or indirectly, for the Committee to Re-Elect the President. President
Nixon and leaders of his campaign denied any connection with the incident.
The five men were convicted of burglary, along with E. Howard Hunt, Jr., a
former Nixon aide, and G. Gordon Liddy, a lawyer for the Committee to Reelect the President. Shortly afterward, the presiding judge received a letter from
one of the convicted men. It spoke of payoffs to the burglars in return for their
silence—the men had perjured themselves to protect others involved in the
break-in.
In 1973, a Senate select committee began an investigation, and it became clear
that top members of the Nixon administration were involved in a cover-up of
the break-in and several other illegal actions. It was also discovered that Nixon
had installed a taping system that automatically recorded all of his
conversations with his advisors. A special prosecutor appointed to probe the
Watergate scandal subpoenaed the tapes. Nixon refused to release them,
claiming they were protected under executive privilege. Nixon eventually
released some of the tapes, but portions of them had been erased. Finally,
another special prosecutor asked the United States Supreme Court to compel
Nixon to release all of the tapes in their entirety.
Does the separation of powers created by the Constitution provide the President
with an absolute power to withhold information from other branches of
government? If the power is not absolute, should President Nixon be able to
claim executive privilege under the aforementioned circumstances? Does the
separation of powers allow for the settlement of this dispute to reside in the
executive branch or should it be settled by the judicial branch? Does the claim
of executive privilege damage the precedent set by the fifth Amendment, which
ensures due process?
For the United States: The President’s power to claim executive privilege is not
an absolute one. Executive privilege may not be invoked to deny the courts
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access to evidence needed in a criminal proceeding. This is a dispute that can
properly be heard in the federal courts.
For President Nixon: The constitutional scheme of separation of powers grants
to the President the privilege of withholding information from the other
branches of government. Furthermore, this power is absolute, and it is vital
where high-level communications are involved. In addition, this dispute should
be resolved within the executive branch, not by the courts. 64
The Court ruled unanimously that President Richard Nixon had to surrender the
tapes. Chief Justice Warren Burger delivered the opinion of the Court. Burger
wrote, “The impediment that an absolute, unqualified privilege would place in
the way of the primary constitutional duty of the Judicial Branch to do justice
in criminal prosecutions would plainly conflict with the function of the courts
under Article III.”
Burger then turned his attention to the damage that a privilege of
confidentiality would cause to citizens’ constitutional rights that is, “The right
to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The sixth Amendment explicitly confers upon every defendant in a
criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to
have compulsory process for obtaining witnesses in his favour.’ Moreover, the
Fifth Amendment also guarantees that no person shall be deprived of liberty
without due process. It is the manifest duty of the courts to vindicate those
guarantees, and to accomplish that it is essential that all relevant and admissible
evidence be produced.” The Court made it clear that the President could not
withhold evidence from an ongoing criminal prosecution of another person
simply because he was the President.
Several days before, the House Judiciary Committee had approved three
articles of impeachment. On August 9, 1974, Nixon became the first President
in U.S. history to resign from the presidency. He did so in order to avoid going
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through the likely prospect of being impeached by the full House of
Representatives and convicted by the Senate. 65
Texas v. Johnson (1989)
To protest the policies of the Reagan administration, Gregory Lee Johnson,
then a member of the Revolutionary Communist Youth Brigade, burned an
American flag outside of the Dallas City Hall. He was arrested for this act, but
argued that it was a symbolic speech. The Supreme Court agreed, ruling that
symbolic speech is constitutionally protected even when it is offensive. The
case invalidated prohibitions on desecrating the American flag enforced in 48
of the 50 states. Justice William Brennan wrote for a five-justice majority in
holding that the defendant’s act of flag burning was protected speech under the
first Amendment to the United States Constitution. Johnson was represented by
attorneys David D. Cole and William Kunstler.
The Court found that Johnson’s actions fell into the category of expressive
conduct and had a distinctively political nature. The fact that an audience takes
offense to certain ideas or expression, the Court found, does not justify
prohibitions of speech. The Court also held that state officials did not have the
authority to designate symbols to be used to communicate only limited sets of
messages, noting that “if there is a bedrock principle underlying the first
Amendment, it is that the Government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or disagreeable.” 66
The first Amendment overrules the Texas law that forbids the desecration of a
venerated object under these circumstances. The State court of Appeals
affirmed that Johnson was in the wrong, however, the Texas Court of Criminal
Appeals reversed. The Texas Court of Criminal Appeals pointed out that the
state, under the first amendment, could not punish Johnson for burning the flag
due to the current circumstances. The court found that Johnson's burning of the
flag was expressive conduct protected by the first Amendment.67
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Bush v. Gore (2000)
Following the U.S. Supreme Court’s decision in Bush v. Palm Beach County
Canvassing Board, and concurrent with Vice President Al Gore’s contest of the
certification of Florida presidential election results, on December 8, 2000 the
Florida Supreme Court ordered that the Circuit Court in Leon County tabulate
by hand 9000 contested ballots from Miami-Dade County. It also ordered that
every county in Florida must immediately begin manually recounting all
‘under-votes (ballots which did not indicate a vote for president) because there
were enough contested ballots to place the outcome of the election in doubt.
Governor George Bush and his running mate, Richard Cheney, filed a request
for review in the U.S. Supreme Court and sought an emergency petition for a
stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted
review and issued the stay on December 9. It heard oral argument two days
later.68
Noting that the Equal Protection clause guarantees individuals that their ballots
cannot be devalued by ‘later arbitrary and disparate treatment,’ the per curiam
opinion held 7-2 that the Florida Supreme Court’s scheme for recounting
ballots was unconstitutional. Even if the recount was fair in theory, it was
unfair in practice. The record suggested that different standards were applied
from ballot to ballot, precinct to precinct, and county to county. Because of
those and other procedural difficulties, the court held that no constitutional
recount could be fashioned in the time remaining (which was short because the
Florida legislature wanted to take advantage of the ‘safe harbor’ provided by 3
USC Section 5). Loathe to make broad precedents, the per curiam opinion
limited its holding to the present case. Rehnquist (in a concurring opinion
joined by Scalia and Thomas) argued that the recount scheme was also
unconstitutional because the Florida Supreme Court’s decision made new
election law, which only the state legislature may do. Breyer and Souter
(writing separately) agreed with the per curiam holding that the Florida Court’s
recount scheme violated the Equal Protection Clause, but they dissented with
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respect to the remedy, believing that a constitutional recount could be
fashioned. Time is insubstantial when constitutional rights are at stake.
Ginsburg and Stevens (writing separately) argued that for reasons of
federalism, the Florida Supreme Court’s decision ought to be respected.
Moreover, the Florida decision was fundamentally right; the Constitution
requires that every vote be counted.69
“By halting the Florida recount in the interest of finality,” Justice Stevens
wrote, “the majority effectively orders the disenfranchisement of an unknown
number of voters whose ballots reveal their intent—and are therefore legal
votes under state law-but were for some reason rejected by ballot-counting
machines.” In addition, Breyer stated: “An appropriate remedy would be to
remand this case with instructions that, even at this late date, would permit the
Florida Supreme Court to require recounting all undercounted votes in Florida
… and to do so in accordance with a single uniform standard.” However the
court also ruled that no alternative method could be established within the time
limits set by the State of Florida.70
The Supreme Court recently upheld the constitutionality of McCain-Feingold
in McConnell v. Federal Election Commission (2003) There, as in numerous
others cases over the last 100 years, the Court upheld congressional authority to
regulate corporate expenditures in federal elections because “there is
substantial evidence . . . to support Congress’ determination that such
contributions . . . give rise to corruption and the appearance of corruption.”71
In the United States, judicial review of legislation became the most significant
aspect of American law. Although the Constitution nowhere mentions that the
Supreme Court of the United States has the power to invalidate acts of congress
if they are contrary to the provisions of the Constitution, Chief Justice Marshall
held in Marbury v. Madison that such power was implied in a written
Constitution. This assertion of power was criticized severely. The main thrust
of the criticism was that an unelected court was to censor the legislation
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enacted by an elected legislature; judicial activism has always evoked varying
types of responses.
With the advent of the welfare state and increase in the powers of executive,
the courts started asking for stricter standards of reasonableness from the
executive. In India courts have always required ‘proportionality test’ where
restrictions are imposed on fundamental rights. 72 However, in cases where an
administrative action has no adverse effect on fundamental freedoms, the scope
of judicial review of administrative action will be limited. The Court will not
exercise close scrutiny and would not make primary judgment as to the choices
made by the administration. In such a situation judicial review will be confined
to Wednesbury rules. In India it was believed that proper check on the
administrative actions should be political. Abuse of power by the President
who acts on the advice of the Council of Ministers has to be checked by the
political process. In parliamentary democracy, such checks are inbuilt. In 1977,
the Supreme Court opened the door slightly for judicial review on limited
grounds of ultra vires and mala fide exercise of power, though it did not strike
down the impugned action.73-74 However in S.R. Bommai v. India, Supreme
Court by a majority of six judges held that the President’s satisfaction under
Article 356 of the Constitution was justifiable.75 In Canara Bank v. V.K.
Awasthy, the apex Court had the opportunity of explaining the scope and ambit
of the power of judicial review of administrative action.76 The Court held that
an administrative action, if adversely affects fundamental freedoms of Articles
19 and 21 of the Constitution, then the extent of judicial review will be
extensive and the Court would make primary judgment and close scrutiny of
the administrative action. Hence, the power of judicial review will be exercised
on the grounds of illegality, irrationality, procedural impropriety and
proportionality.77 In Sidheswar Sahakari Sahakhar Karkhan Ltd. v. Union of
India the apex Court was of opinion that normally the court should not interfere
in a policy matter which is within the preview of the government unless it is
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shown to be contrary to law or inconsistent with the provisions of the
constitution. 78
Judicial Review of Primary Legislation
There is a judicial power to review primary legislation, that is, laws passed
directly by an elected legislature, and invalidate it for inconsistency with the
constitution. There are broad approaches to judicial review of the
constitutionality of primary legislation. Some countries do not permit any
review of the validity of primary legislation. In the United Kingdom, statutes
cannot be set aside under the doctrine of parliamentary sovereignty. Another
example is the Netherlands, where the Constitution expressly forbids the courts
to rule on the question of constitutionality of primary legislation. In the United
States, federal and state courts, at all levels, both appellate and trial, are able to
review and declare the constitutionality, or agreement with the Constitution - or
lack thereof - of legislation that is relevant to any case properly within their
jurisdiction. In American legal language, ‘judicial review’ refers primarily to
the adjudication of constitutionality of statutes, especially by the Supreme
Court of the United States. This is commonly held to have been established in
the case of Marbury v. Madison, which was argued before the Supreme Court
in 1803.79
A number of other countries whose constitutions do provide for reviews of the
compatibility of primary legislation, with the constitution, have established
special constitutional courts that have the exclusive authority to deal with this
issue.80 In these systems, other courts are not competent to question the
constitutionality of primary legislation. Brazil adopts a mixed model since, as
in the U.S., courts at all levels, both federal and state, are empowered to review
primary legislation and declare its constitutionality, and, as in Germany, there
is a Constitutional Court in charge of reviewing the constitutionality of primary
legislation.81
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The difference being that, in the first case, the decision about the laws
adequacy to the Brazilian Constitution only binds the parties to the lawsuit,
whereas in the second, the Court’s decision must be followed by all judges and
government officials at all levels.
Roe v. Wade (1973)
No Decision of the U.S. Supreme Court in the twentieth century has been as
controversial as the Roe v. Wade decision holding that women have a right to
choose to have an abortion during the first two trimesters of a pregnancy.
Roe v. Wade, case decided in 1973 by the U.S. Supreme Court. Along with Doe
v. Bolton, this decision legalized abortion in the first trimester of pregnancy.
The decision, written by Justice Harry Blackmun and based on the residual
right of privacy, struck down dozens of state antiabortion statutes. The decision
was based on two cases. The first was that of an unmarried woman Norma
McCorvey, known as Jane Roe, sought to terminate her pregnancy by an
abortion performed, by a competent, licensed physician, under safe, clinical
conditions. Roe was a resident of Texas, where abortion was illegal unless the
mother’s life was at risk. The second was that of a poor, married mother of
three from Georgia, where state law required permission for an abortion from a
panel of doctors and hospital officials. While establishing the right to an
abortion, this decision gave states the right to intervene in the second and third
trimesters of pregnancy to protect the woman and the potential life of the
unborn child. Denounced by the National Council of Bishops, the decision
gave rise to a vocal antiabortion movement that put pressure on the courts and
created an anti-Roe litmus test for the judicial appointments of the Reagan and
Bush administrations from1981 to 1993. In a 1989 case, Webster v.
Reproductive Health Services, the court, while not striking down Roe, limited
its scope, permitting states greater latitude in regulating and restricting
abortions. Then in 1992, in Planned Parenthood v. Casey, the court reaffirmed
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the abortion rights granted in Roe v. Wade, while permitting further
restrictions.82
The Court held that a woman’s right to an abortion fell within the right to
privacy recognized in Griswold v. Connecticut, protected by the fourteenth
Amendment. As a result, the laws of 46 states were affected by the Court’s
ruling.83
JUDICIAL REVIEW IN INDIA
Like many other written constitutions in the world, the Constitution of India
has also provided fundamental rights for the citizens and judicial review is a
necessary concomitant of these rights, as it is meaningless to enshrine
individual rights in a written constitution if they are not enforceable in courts of
law, against any organ of the state, legislative or executive. The framers of our
constitution have affected a harmony between parliamentary sovereignty and a
written Constitution with a provision for judicial review. The Supreme Court of
the USA has the power to invalidate a law duly passed by the legislature on the
grounds that it is opposed to some general principles vaguely laid down in the
Constitution. Under the English Constitution, on the other hand, Parliament is
supreme and can do everything that is not naturally impossible. The courts
there cannot nullify any acts of the parliament on any ground whatsoever.
The tradition of judicial activism that commenced in the United States with
Marbury v. Madison followed in India by Justice Mahmood, Allahabad High
Court in 1893 and came to the forefront in India and conspicuously in
Kesavananda Bharti v. State of Kerala has taken firm roots on the Indian soil.
It has given new meanings and dimensions to the various Constitutional Rights
available to the common Indian citizen and utilized them to regulate the social,
economic, civil and cultural existence of the common masses. In this manner
the entire nation embraced in realizing the Constitutional objectives of Justice,
liberty and equality. Judicial activism as a tool frequently resorted to against
executive has also invited allegations of its excess use not only from other
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quarters but from the apex court itself; yet, there is no doubt that judicial
activism has generally addressed the interests of the common Indian citizens
and materialized their constitutional rights in their favour, the cases which
show instances of judicial activism in India are discussed ahead in this heading.
The Indian constitution, however, adopts the middle course between the
American system of judicial supremacy and the English principle of
parliamentary supremacy. It has endowed the judiciary with the power of
declaring a law as unconstitutional if it is beyond the competence of the
legislature or it contravenes the fundamental rights or any mandatory
provisions of the Constitution of India.84 The power to judicially review any
decision is an extraordinary power vested in a superior court for checking the
exercise of power of public authorities, whether they are constitutional, quasijudicial or governmental. It is only available for exercise when a person who is
aggrieved by such a decision brings it before the court.
It is known that while dispensing executive functions, public authorities take
various decisions for which they should be allowed sufficient space for a
proper exercise of discretion. It is keeping this in mind by authorities that, by
and large, only the decision making process is actually subjected to judicial
review. Legislature, executive and judiciary under the Constitution are to
exercise powers with checks and balances, but not in water-tight, rigid moulds
and also gives each branch a little power over the other two.85 In India, on the
basis of Articles 32 and 136, the Supreme Court can exercise the power of
judicial review. Similarly, under Articles 226 and 227, High Courts have also
power of judicial review. Judicial review considers three aspects mainly in
India:
(1) Judicial review of legislative action,
(2) Judicial review of administrative action,
(3) Judicial review of judicial decision.
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Therefore, judicial review in Indian context is a highly complex and developing
subject. It has its roots long back and its scope and extent varies from case to
case. It is considered to be the basic feature of the Constitution. The court in
the exercise of its power of judicial review would zealously guard the human
rights, fundamental rights and the citizens’ rights of life and liberty as also
many non-statutory powers of governmental bodies as regards their control
over property and assets of various kinds, which could be expended on
buildings, hospitals, roads and the like, or overseas aid, or compensating
victims of crime.86 The limit on the power of judicial review is a recurring
theme in the evolution of our Constitution. In some of its celebrated judgments,
the Supreme Court has defined the outline of sovereign power as distributed
amongst the three branches of government namely; the legislature, the
executive and the judiciary. For example, Justice Shah observed, “The
legislature in this country has no power to ask the instrumentalities of the State
to disobey or disregard the decisions given by the courts. The legislature may
remove the defect, which is the cause for invalidating the law by the court by
appropriate legislation if it has power over the subject matter and competent to
do so under the Constitution. The primary duty of the judiciary is to uphold the
Constitution and the laws without fear or favour, without being biased by
political ideology or economic theory. Interpretation should be in consonance
with the constitutional provisions, which envisage a republican democracy.”87
There is a compelling case that the power of judicial review delegated to
superior courts in various provisions of the Constitution of India; itself is as
much by the command of the people. But scholars who are in favour of this
view argue that judicial inquiry of the validity of legislation is a necessary
protection against the oppression of majorities, that the judges do not check the
people, the Constitution does and since the Constitution itself is popularly
ratified, there is nothing undemocratic in the power of judicial review.
173
Kesavananda Bharti v. State of Kerala (1973)
The judgement of Kesavananda Bharati v. State of Kerala and others is an
innovative decision of the Supreme Court of India. It is the basis for the power
of the Indian judiciary to review, and strike down, amendments to the
Constitution of India passed by the Indian parliament which conflict with or
seek to alter the constitution's ‘basic structure.’ The judgment also defined the
extent to which Parliament could restrict the right to property, in pursuit of land
reform and the redistribution of large landholdings to cultivators, overruling
previous decisions that suggested that the right to property could not be
restricted. The case was a culmination of a series of cases relating to limitations
to the power to amend the Indian constitution this was the case in which the
concept of basic structure was evolved. The basic structure doctrine is the
judge-made principle that certain features of the Constitution of India are
beyond the limit of the powers of amendment of the Indian parliament. The
basic structure doctrine applies only to the constitutionality of amendments and
not to ordinary Acts of Parliament, which must conform to the entirety of the
constitution and not just to its basic structure.88
This case is popularly known as the fundamental rights case because the
petitioners have challenged the validity of the Kerala Land Reforms Act 1963.
But during the pendency of the petition the Kerala Act was amended in
1971and was placed in the Ninth Schedule by the 29th Amendment Act. The
petitioners were permitted to challenge the validity of 24th, 25th and 29th
amendment to the constitution. During the pendency of the writ petitions,
Parliament passed the three constitutional amendments, namely, 24th, 25th and
29th Amendments. As the petitioner apprehended that he would not succeed in
view of the above amendment he also challenged the validity of these
amendments.89
The Constitution twenty-fourth Amendment Act, enacted that Parliament may,
in exercise of its constituent power, amend provision of the constitution in
174
accordance with the procedure laid down in that article. The other part of the
amendment is that nothing in Article 13 shall apply to any amendment under
Article 368.
The constitution twenty-ninth Amendment Act included the Kerala Land
Reforms Acts in the Ninth Schedule to the Constitution making them immune
from attack on the ground of violation of the fundamental rights. The petitioner
challenged the validity of the three Constitution Amendment Acts. The
Supreme Court held that the Parliament had wide powers to amend any Article
of the Constitution. However, the amending power is not so wide as to enable
the Parliament to alter the basic features or to abrogate the entire Constitution.
It was argued that though the power is wide but it is not unlimited. Power to
amend under Article 368 does not empower the parliament cannot alter the
basic structure of the Constitution under Article 368. In contrast, state argued
that parliament has power to amend is wide and not limited.
In the court, the majority judgement ruled that the declaration clause of Article
31C as unconstitutional because it was damaging basic structure of the
constitution. However, the first part of the clause held to be valid .The majority
judgment clearly held that any law enacted by the parliament for giving effect
to the directive principals contained in clauses (b) and (c) of Article 39 cannot
be declared void on the ground that it violets any of the rights conferred by the
Articles 14, 19 or 31.
Consequently, constitution added Article 31 (C) by twenty-fifth Amendment
Act, 1971. The new article empowers the Parliament as well as State
Legislatures to enact laws towards securing the directive principles specified in
Article 39 (b) and (c) of the constitution. Article 31 (c) thus gives the directive
principles in Art 39 (b) and (c) primarily over the fundamental rights
guaranteed by Articles 14 and 19 of the Constitution.90
175
In the end, the bench came up with some essential elements that can be
reckoned as forming the basic structure of constitution and they postulated that
parliament has unrestrained power to amend the constitution. It was repeated
that there are some necessary implications that prevents the absolute
amendment of the constitution, the notion of sovereignty, democracy, republic
government and other such features form the basic structure and cannot be
obliterated by any amendment. 91
The decision of the Supreme Court of India in Kesavananda Bharti case
marked and explained the term which is called ‘basic structure’ to measure
whether the Parliament is seeking to destroy the Constitution, by using its
powers under Article 368, which was so far, understood to be a power, the
exercise of which was not subject to judicial scrutiny. Basic Structure is not
contained in one or more provisions of the Constitution of India, but it is
supposed to be the sum total of the core of our Constitution. Also in the same
case the honourable court has interpreted the scope and meaning of judicial
review. “The power of judicial review is, however, confined not merely to
deciding whether in making the impugned laws the central or state legislatures
have acted within the four corners of the legislative lists earmarked for them;
the courts also deal with the question as to whether the laws are made in
conformity with, and not in violation of, the other provisions of the
Constitution. As long as some fundamental rights exist and are a part of the
Constitution, the power of judicial review has also to be exercised with a view
to see that the guarantees afforded by those rights are not contravened, review
has thus become an integral part of our constitutional system and a power has
been vested in the High Courts and the Supreme Court to decide about the
constitutional validity of provisions of statutes. If the provisions of the statute
are found to be violative of any Article of the Constitution, which is the
touchstone for the validity of all laws, the Supreme Court and the High Courts
are empowered to strike down the said provisions.”92
176
The Bank Nationalization Case (1970)
The Bank nationalization means giving to the government, the power to control
banks. A Special Bench consisting of eleven judges gave a majority (10-1)
judgment in the so called Bank Nationalization case (R.C. Cooper V. Union of
India) took a position that was very much in consonance with the position
taken earlier by Chief Justice Subba Rao. In this case validity of the Banking
Companies (Acquisition and Transfer of Undertakings) Act 1969, was
challenged on grounds of inadequate compensation after the President of India
nationalized 14 Indian Banks on the recommendation of the then Prime
Minister Mrs. Gandhi. The Act did lay down principles for determination and
payment of compensation to the Banks, which was to be paid for in form of
bonds, securities etc. However such compensation was challenged on the
grounds that the Act did not fulfil Article 31(2) because, it was argued, the
principles for determining compensation were irrelevant for arriving at the
compensation and some of the assets of the Banks particularly intangible assets
such as goodwill and unexpired leases for premises etc, were not taken into
account for calculating compensation. The majority of the judges accepted this
view, and stated that both before and after the amendment to Article 31(2) there
is a right to compensation and by giving illusory compensation the
constitutional guarantee to provide compensation for an acquisition was not
complied with. It was also stated that the legislature is not the final authority on
compensation.
It was held that ‘potential value’ and ‘the goodwill and the value of the
unexpired period of long term leases’ should be taken into account to determine
compensation. The word ‘compensation implied full monetary equivalent of
the property taken away from the owner i.e. market value on the date of
acquisition. It appears that on account of this judgment, some change was made
to Act covering bank acquisitions and passed by Parliament with a specified
amount being given to the Banks, though more significantly it provided the
critical fuel to push for the enactment of twenty-fifth Amendment.93
177
Abolition of Privy Purses (1971)
The concept of rulership, with privy purses and special privileges unrelated
to any current functions and social purposes, is incompatible with an
egalitarian social order. Government has, therefore, decided to terminate the
privy purses and privileges of the Rulers of former Indian States.
It is
necessary for this purpose, apart from amending the relevant provisions of
the Constitution, to insert a new article therein so as to terminate
expressly the recognition already granted to such Rulers and to abolish privy
purses and extinguish all rights, liabilities and obligations in respect of privy
purses in India.94
The royal families of former princely states get compensation as part of their
agreements to first integrate with India. They ceased to get payment until the
abolition of Privy Purse by an enactment in 1971.
At the time of independence, these states signed the Instrument of Accession
with two new States; India and Pakistan. Few states remained complete
independence, exceptionally. However, with the effort of Vallabhbhai Patel and
VP Menon, Travancore, Bhopal and Jodhpur, Kashmir, Junagadh and
Hyderabad etc., were became integrated part of India. For surrendering
sovereignty, the prince and owner of these states were granted Privy Purses and
many privileges determined by numerous factors. The monetary range of the
privy purses was, from five thousand to million Rupees per annum.
The President of India derecognized the princes and terminated their privileges
and privy purses with immediate effect by an order dated 6th September 1969.
The princes challenged the validity of the order of the President in the Supreme
Court, a special bench of nine judges headed by justice Hidaytullah heard the
matter. By a majority judgment, Supreme Court declared that Presidential order
was ultra-vires of the constitution and hence illegal and inoperative.95
178
She described the controversy raised by the vested interest as to the supremacy
of the parliament against the supremacy of the constitution. She also denied
having any confrontation between parliament and judiciary. Every institution,
according to her, had its assigned place and role. 96
Then Prime Minister, Mrs. Indira Gandhi proposed a motion to abolish the
Privy Purses in the parliament, with the argument that every citizen has equal
rights and the need to reduce the government’s revenue deficit. Many royal
families tried to save it through campaigns to contest seats in the Lok Sabha
elections of 1971, but they failed to get any success.
In USA, judges who consistently interfere with the process of democracy are
playing high-stakes poker. Those who have won their battles in the political
arena, only to see them falter in the courts, eventually will lead a battle against
the courts themselves. None of this is healthy, but it already has started.
Syndicated columnist Pat Buchanan wants to make Federal judges subject to
voter recall and removal; former Attorney General Ed Meese wants Congress
to exercise its power under Article III of the Constitution to limit the appellate
jurisdiction of the Supreme Court; and both want to amend the Constitution to
allow the states to ratify amendments without the approval of Congress. 97
In India, Supreme Court rulings offer some insights into the metamorphosis of
judicial activism. Activist judiciary traced back its roots to the year 1893, when
Justice Mehmood dispense a dissenting judgment at Allahabad High Court,
where an under trial who could not afford to engage a lawyer. Justice
Mehmood held that the pre-condition of the case being ‘heard’ would be
fulfilled only when somebody speaks. So, he gave the widest possible
interpretation of the relevant law and laid the foundation stone of the judicial
activism. Recently, the Supreme Court issued a notice to the Union government
seeking an explanation of the steps taken by it to ameliorate the plight of Indian
students in Australia, who have been facing racially motivated attacks. Foreign
policy is widely considered to be non-justiciable, that is, courts cannot
179
interfere. Yet, the interference by Indian courts has not wholly been
condemned. The next, and almost equally striking, instance is a Supreme Court
notice questioning the proliferation of Chief Minister of Uttar Pradesh
Mayawati statues, allegedly worth crores of rupees, in Lucknow. Like foreign
policy, budgetary allocations (butter, guns or statues?) are non-justiciable. But
judicial interference in this matter too has not been deprecated, nor is it worthy
of serious censure.
In Minerva Mills v. Union of India, it was observed by the Supreme Court that
the clauses of Article 31(c) as introduced by the Constitution 42nd Amendment
Act. 1976, which required taking away the power of judicial review was
unconstitutional. However, judicial review was not held to be part of the basic
structure of the Constitution by the majority in this decision, although
Bhagwati in his minority decision traced the power of judicial review to
Articles 32 and 226 and observed it to be a part of the basic structure of the
Constitution, and if taken away by a constitutional amendment would amount
to ‘subversion of the Constitution’.98
Justice Ahmadi referred the case State of Madras v. V. G. Row, where Chief
Justice M. Patanjali Shastri held that, “Our Constitution contains express
provisions for judicial review of legislation as to its conformity with the
Constitution. It is not out of any desire to tilt at legislative authority in a
crusader’s spirit, but in discharge of a duty plainly laid upon them by the
Constitution. This is especially true as regards the ‘fundamental rights’, as to
which this court has been assigned the role of a sentinel on the qui vive. While
the court naturally attaches great weight to the legislative judgment, it may not
desert its own duty to determine finally the constitutionality of an impugned
statute.”99
Finally, a larger bench of seven judges unequivocally declared that, “the power
of judicial review vested in the High Courts and in the Supreme Court under
Articles 226, 227 and 32, respectively, is part of the basic structure of the
180
Constitution.”100 It is to be presumed that those who work the Constitution,
those who compose the legislature and those who compose the executive and
the judiciary know their functions, their limitations and their duties. It is,
therefore, to be expected that if the executive is honest in working the
Constitution, then the executive is bound to obey the legislature without any
kind of compulsion laid down in the Constitution. Similarly, if the executive is
honest in working the Constitution, it must act in accordance with the judicial
decisions given by the Supreme Court. In so far as the Constitution gives
supremacy to that, is a matter of constitutional obligation which is implicit in
the Constitution itself.
Golak Nath v. State of Punjab was the first time that limitations on the
amending power of Parliament under Article 368 were recognized. The
majority judgment was written by Chief Justice Subba Rao proceeding on the
premise that:
(a) Article 368 contained merely the procedure, not the power of
amendment; (b) The power of Amendment lay in Entry 97of List I and (c)
As a consequence of the above, a Constitutional Amendment would be
law within the meaning of Article 13.101
Constitution of India grants, Parliament and the state legislatures that they have
the power to make laws within their respective jurisdictions. This power is not
absolute in nature. The Constitution vests in the judiciary, the power to
adjudicate upon the constitutional validity of all laws. If a law made by
Parliament or the state legislatures violates any provision of the Constitution,
the Supreme Court has the power to declare such a law invalid or ultra vires.
This check notwithstanding, the founding fathers wanted the Constitution to be
an adaptable document rather than a rigid framework for governance. Hence
Parliament was invested with the power to amend the Constitution. Article 368
of the Constitution gives the impression that Parliament’s amending powers are
absolute and encompass all parts of the document. But the Supreme Court has
181
acted as a brake to the legislative enthusiasm of Parliament ever since
independence. With the intention of preserving the original ideals envisioned
by the constitution-makers, the apex court pronounced that Parliament could
not distort damage or alter the basic features of the Constitution under the
pretext of amending it. The phrase ‘basic structure’ itself cannot be found in the
Constitution. The Supreme Court recognised this concept for the first time in
the historic Kesavananda Bharati case in 1973.Ever since, Supreme Court has
been the interpreter of the Constitution and the arbiter of all amendments made
by Parliament.102
The weak Parliament has lead to an expansion of the powers of the judiciary.
Since the independence, majority mandate had been given to the Congress,
which was committed to introduce several laws pertaining to agrarian reforms;
abolition of zamindari, and other land reforms. Initially, the court showed its
sympathy with the property holders and struck down some provision in favour
of property holders.
A strong Parliament led by Pt. Jawaher Lal Nehru, lead the first constitutional
Amendment creating the Ninth Schedule to protect the agrarian reform laws in
1951, and since then, a series of constitutional amendments were made in
response to judgments of the courts.
Again, we are mentioning the Golak Nath Case, 103 where, a sizeable portion of
land belonging to Golak Nath family, declared surplus under the Punjab
Security of Land Tenures Act 1953. They approached the Supreme Court under
Article 32 of the Constitution challenging the Act on the ground that their
Constitutional Rights to acquire and hold property and practice any profession
i.e. Articles 19 (1) (f) & (g) were violated, and so was their Right to equality
before law under Article 14, were denied.
Chief justice Subba Rao gave his judgment that the seventeenth, the First and
the fourth Amendments would not be affected. Therefore, Parliament could not
182
take away or abridge the Fundamental Rights. This judgment also postulated
that fundamental rights constitute the basic structure of the constitution and any
Amendment to the Constitution can be made only to preserve them.
However, these judgments did not pacify the political institution’s eagerness to
the nationalization of industry and other socialist endeavours. Austin
mentioned that ‘political and intellectual currents at the time’ were, among
other things, to overcome the Fundamental Right issue raised by the Golak
Nath decision, to amend the Articles associated with property (especially
Article 31) to keep the courts away from acquisition and compensation issues,
to take ‘property’ out of the Fundamental Rights and to restructure the
Constitution so that the Directive Principles were given precedence over the
Rights component of the Constitution. It is precisely this current that came to
express itself in the twenty fourth and twenty-fifth Amendments to the
Constitution.104
Within a few weeks of the Golaknath verdict the Congress party suffered heavy
losses in the parliamentary elections and lost power in several states. Though a
private member’s bill - tabled by Barrister Nath Pai - seeking to restore the
supremacy of Parliament’s power to amend the Constitution was introduced
and debated both on the floor of the house and in the Select Committee, it
could not be passed due to political compulsions of the time. But the
opportunity to test parliamentary supremacy presented itself once again when
Parliament introduced laws to provide greater access to bank credit for the
agricultural sector and ensure equitable distribution of wealth and resources of
production by: a) nationalizing banks, and, b) derecognizing erstwhile privy
purses. Parliament reasoned that it was implementing the Directive Principles
of State Policy, but the Supreme Court struck down both moves. By now, it
was clear that the Supreme Court and Parliament were at loggerheads over the
relative position of the fundamental rights vis-à-vis the Directive Principles of
State Policy.105
183
The battle between the parliament and the judiciary came into the front on two
levels; first was about the supremacy of Parliament versus the power of the
courts to interpret the law, enshrined in the constitution, and second about the
sanctity of property as a fundamental right jealously guarded by an affluent
class numerically much smaller than the large impoverished masses for whose
benefit the Congress government claimed to implement its socialistic
development programme. At one level, the battle was about the supremacy of
Parliament vis-à-vis the power of the courts to interpret and uphold the
Constitution. At another level the contention was over the sanctity of property
as a fundamental right jealously guarded by an affluent class numerically much
smaller than the large impoverished masses for whose benefit the Congress
government claimed to implement its socialistic development programme. This
was also a reason for heavy losses in the parliamentary elections to the
Congress party.
For the first time, the Constitution of India became an electoral issue. In the
case of Bank Nationalization and abolition of Privy Purse, the battle between
parliament and judiciary manifested again, when Supreme Court struck down
the President’s order derecognizing the privy purses. In the Bank
Nationalization case the Supreme Court has held that the Constitution
guarantees right to compensation, that is, the equivalent in money of the
property compulsorily acquired. The Court has also held that a law which
seeks
satisfy
to acquire or requisition property for a public purpose should also
the requirements of article 19 (1) (f). Then Prime Minister Indira
Gandhi dissolved the Lok Sabha and called for a snap poll, in hasty move to
secure the mandate of the people. It was also one of her manifestos; changes in
the Constitution in order to restore the supremacy of Parliament. 106
Mrs. Gandhi returned to the power with a two-third majority. People had
supported the Congress party’s socialist agenda; one among them was to
change the Constitution in order to restore the supremacy of the Parliament.
Parliament enacted many amendments between July 1971 and June 1972 to
184
regain its glory, which was diminished by judicial objections in many issues
raised by the parliament.
Constitution of India has a clear declaration that parliament and state
legislatures are independent sovereign entities and judiciary does not have the
power to enquire into their proceedings. Whereas India’s judiciary has been
known as an active in protecting people’s rights, for which it has interpreted the
constitution, law and jurisprudence in favour of public. A spectacular example
of judicial intervention, in 1998, was the ruling of the supreme court called for
trial of strength between Jagdambika Pal and Kalyan Singh to resolve the chief
ministership issues in UP, the bench said that it was a case of constitutional
breach, violating the separation of powers as mandated in the Constitution and
ordered members of the 425-seat Uttar Pradesh state assembly to attend a
special session on Thursday and decide on one of two claimants to chief
ministership. Where, the bench set the date for the session of the U.P.
Assembly and even fixed the agenda of composite floor test to determine
majority in the assembly. Legislators may complain of judicial intrusion into
their domain but they are now seeking judicial intervention of the court to end
the chaos in assembly.107
Jagdambika Pal, who withdrew with 22 members of Lok Tantarik Congress
claimed to lead a new coalition, was sworn in on February 21 by the governor,
Romesh Bhandari. Kalyan Singh’s led government came into minority and it
was dismissed by the governor. Mr. Singh refused to resign and asked for 15
days time to prove his majority. He approached the court and seeks judicial
intervention by obtaining a stay from the provincial high court which promptly
ordered his reinstatement as chief minister but left it to the governor to fix a
date for a floor-test.
Mr. Pal who insisted that he was still chief minister approached the Supreme
Court with a ‘special leave petition’ asking for a stay on the lower court’s
order, which was denied. But the apex court restrained Singh from taking any
185
major decision until he could prove his coalition’s majority. The court directed
the speaker to ‘announce the result of the voting faithfully and truthfully.’
After court’s order, the governor’s office issued an official statement, “the
main objective of the governor was to see that no side gets an undue advantage
by virtue of being in office.” The issue aggravated more when the President
Narayanan expressed his unhappiness with the haste in which he had Pal
sworn-in, in a letter to the Prime Minister. At the end, the Supreme Court held
that Mr. Bahndari could legitimately have declined to allow a floor-test once
Mr. Singh had admitted that his government was in minority and needed time
to prove majority on the floor of the house.
Of late, politicians have been complaining of judicial activism and of usurping
the powers of the legislature on major issues that come before the court. In
Jagdambika Pal case, politicians have themselves sought the direct intervention
of the judiciary in the running of their legislature.
For the first time, a Governor’s invitation to a party to form the government has
been taken to the judiciary, leading to the court intervention in the conduct of
the legislature. The Supreme Court envisaged the role of governor as more than
mere ceremonial and maintained that his/her role can be critical for upholding
the rule of law and democracy. In fact the role of two governors from two
different states- Jharkhand and Bihar - came under the close judicial scrutiny
this year and two important judgments delivered in March and October this
year by Supreme Court raised a lot of questions. Governor of Jharkhand, Syed
Sibte Razi’s action came under closely scrutiny of the Supreme Court because
following elections in the state he did not invite the leader of the largest prepoll alliance to try and form the government. He instead installed the leader of
the post poll ‘hotchpotch’ which still lacked a simple majority. This led to
allegations of partnership. This was followed by the fact that he gave the chief
minister designate an extended time period of three weeks to prove his
majority.
186
The Supreme Court first directed the pro-term speaker of the Jharkhand
assembly to conduct a composite floor test on Friday, March 11, instead of
Tuesday March 15, and also asked that the proceeding in the house on March
10-11 be video graphed for a copy of a recorded video to be presented to it.
The court ignored the objection of the counsel of the government to be who
was invoking the limits of judicial review to argue that the court could not
interfere in the matter. The manner and extent of the Supreme Court’s
intervention in the case is to be assessed on the touchstone of the Articles 122
(Courts not to inquire into proceedings of Parliament), and 212 (Courts not to
inquire into proceedings of the Legislature) of the Constitution of India. 108
A Bench comprising Justices A K Mathur and Markandey Katju had no
hesitation in declaring that the three-judge Bench judgment in the Jharkhand
case as well as in Jagdambika Pal case virtually snapped the fine thread that
separated the domains of the three organs - legislature, executive and judiciary.
These two cases were “two glaring examples of deviations from the clearly
provided constitutional scheme of separation of powers”, the Bench said.109
While adjourning the house, Jharkhand pro-tem speaker P.K. Balmuchu said
Lok Sabha speaker would have to clarify whether a pro-tem speaker could
conduct a trust vote in the wake of the Supreme Court ordering it. Meanwhile,
Lok Sabha Speaker Somnath Chatterjee was embarrassed as the government on
March 11 refused to refer to the president the Supreme Court’s intervention in
Jharkhand a day after his recommendation to do so. Law Minister H.R.
Bhardwaj said the central government would not seek a presidential reference
to the Supreme Court on the Jharkhand assembly case, as the government was
duty-bound to execute judicial orders. Chatterjee had said that the apex court’s
order to advance the date of a confidence motion by Chief Minister Shibu
Soren had upset the constitutional balance and democratic functioning in the
state. The judicial intervention in the functioning of the Jharkhand legislature
throws up important questions about the spheres of authority of the different
wings of India’s democratic set-up.
187
There are innumerable cases where the judicial intervention is common despite
the fact that the field is covered by some statute or subordinate legislation.
Judicial intervention emerged and have largely been practiced by the Supreme
Court for long time and remained a moot issue in political and executive
sphere. The Delhi High Court had issued directions touching every aspect of
daily life, such as nursery school admissions, un-authorised schools, criteria for
free seats in schools, number of free beds in hospitals on public land, begging
in public, use of subways, illegal constructions in Delhi, size of speed breakers,
auto-rickshaw overcharging and frequency of road accidents. The judges
should know their limits and not try to run the government.
Therefore, from the above arguments and references, it is clear that the power
of judicial review is a part of the basic structure of the Constitution, and is
permanent even by a constitutional amendment as affirmed by the Supreme
Court in Kesavananda Bharti case. Representative democracy as an expression
of the people’s will, speaking through their elected representatives, is a nonnegotiable principle of our republican agreement which itself is the product of
an exercise of the unbroken sovereign power. The Supreme Court of India as
the guardian of democratic morality will remember that the exercise of
constitutional power is persistent in the final analysis by the intellectual
integrity, independence and fearlessness of judges without any doubt.
188
REFERENCES:
1. Surya Deva, “Who will Judge the Judges: A Critical Purview of Judicial
Activism”, Delhi University Law Journal, Vol. 1, 1997, pp. 30-40.
2. Sukh Dass v. Union Territory of Arunachal Pradesh (1986) 2 SCC 401;
Sheela Barse v. Union of India (1986) 3 SCC 632
3. Lowell Barrington, Michael J. Bosia & Kathleen Bruhn, Comparative
Politics: Structures and Choices, Cengage Learning, U.S.A., 2009, p. 283.
4. Keenan D. Kmiec “The Origins and Current Meanings of Judicial
Activism”, California Law Review, Vol. 92, No. 5, October 2004, pp. 1443.
5. Merriam-Webster, Inc, Merriam-Webster's Dictionary of Law, MerriamWebster, United State of America, 1996.
6. Henry Campbell Black M A, A Law Dictionary Containing Definitions of
the Terms and Phrases of American and English Jurisprudence; Ancient
and Modern, 2nd ed., The Lawbook Exchange Ltd., New Jersey, 1995.
7. Arvinda Verma, “Taking Justice Outside the Courts: Judicial Activism in
India”, The Howard Journal, Vol. 40, No. 2, 2001, pp. 148-164.
8. K.L. Bhatia, Judicial Review and Judicial Activism: A Comparative Study
of India and Germany from an Indian Perspective, Deep and Deep
Publications, New Delhi, 1997, p. 116.
9. Harshavardhana, “Judicial Activism in India”, Indian Journal of Politics,
Vol. 26, No. 1-2, 1992, pp. 134-44.
10. The Indian Express, 5 January 1997, p. 6.
11. S. B. Jaisinghani, “It is Judicial Assertion”, The Indian Express, 23
December 1998, p. 6.
12. H. D. Shourie, “Should P.I.L. be Curbed?” The Times of India, 23 February
1997, p. 18.
13. Surya Deva, op. cit., p. 30.
14. Ashok K. Johri, “Judicial Activism and Social Transformation”, U.P.
Journal of Political Science, Vol. 1, No. 1, January-June, 1989, pp. 26-37.
189
15. Gulab Gupta, “Judicial Activism - A National Necessity”, Central India
Law Quarterly, Vol. 12, Part 1, January- March, 1999, pp. 1-13.
16. V.G. Palshikar, “Judicial Activism”, All India Reporter, Journal Section,
1998, p. 201.
17. Verma, “The Core of Justice Verma’s Judicial Philosophy” The Indian
Express, 23 January 1998, p. 7.
18. Sudesh Kumar Sharma, “Public Interest Litigation: A Revolution in Judicial
Process”, in K.L. Bhatia (ed.), Judicial Activism and Social Change, Deep
and Deep Publications, New Delhi, 1990, pp. 199-215.
19. Simon James and Chantal Stebbings, A Dictionary of Legal Quotations,
Universal Law Publishing Co. Pvt. Ltd., Delhi, 1997, p. 80.
20. S.C. Gupta, Supreme Court of India: an Instrument of Socio-legal
Advancement, Deep and Deep Publications, New Delhi, 1995, p. 150.
21. Keenan D. Kmiec, ‘op. cit., p. 1445.
22. Ibid.
23. Ibid.
24. Ibid.
25. Beverly A. Potter, Patriots Handbook, Ronin Publishing, California, 2010.
26. The first 10 amendments to the Constitution — went into effect on 15
December 1791, when the state of Virginia ratified it, giving the bill the
majority of ratifying states required to protect citizens from the power of the
federal government.
27. Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)
28. David Bradstreet Walker, The Rebirth of Federalism: Slouching Toward
Washington’, Chatham House Publishers, New York, 1995, p.77.
29. William Marbury v. James Madison, Secretary of State of the United States,
1 Cranch 137
30. Edward McPherson, Handbook of Politics for 1870, Philp & Solomons,
Princeton University, Washington, 1870, p. 515.
31. McCulloch v. Maryland 17 US 316,(1819) 4 L. Ed. 579
32. Justice J.S. Verma, India Today, 15 March 1996. p. 122.
190
33. P.U.C.L., report, “P.I.L.: A Needless Controversy”, in A.R. Desai (ed.),
Violation of Democratic Rights in India, Popular Prakashan, Bombay, 1986,
pp. 172-78.
34. B. Venkatachalapathi, “Politics of Violence in India”, The Third Concept,
Vol. 12, No. 141, 1998, pp. 17-19.
35. Justice Michael Kirby, “In a Democracy, the Big Leap is for Parliament to
Take, Not Judiciary”, The Times of India, 16 January 1997, p. 11.
36. M. H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544, AIR 1978 SC
1548
37. AIR 1976 SC 1455
38. AIR 1978 SC 597
39. J.N. Pandey, Constitutional Law of India, Central law Agency, Allahabad,
1998, p. 319.
40. Nikhil Chakravartty, “Judicial Activism: Right or Wrong”, Mainstream,
Vol. 35 No.16, Perspective Publication Pvt. Ltd., New Delhi, 29 March
1997, pp. 3-4.
41. Brian Duignan, The Judicial Branch of the Federal Government, The Rosen
Publishing Group, New York, 2009, p. 86.
42. Encyclopædia Britannica: A New Survey of Universal Knowledge’,
Volume 13 Encyclopaedia Britannica, Virginia, 1963, p. 172.
43. Kunkel, W., An Introduction to Roman Legal and Constitutional History’,
translated into English by J.M Kelly, Clarendon Press Oxford, U.K., 1966,
p. 157.
44. Valerie J. Janesick,
Curriculum Trends: A Reference Handbook
Contemporary Education Issues, ABC-CLIO E-Books, California, 2003, p.
12.
45. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
46. http://www.uscourts.gov/EducationalResources/ConstitutionResources/Leg
alLandmarks/LandmarkSupremeCourtCases.aspx
accessed 22 September 2009
47. Cooper v. Aaron, 358 US 1 – 1958
191
48. C. H. McIlwain, Constitutionalism and the Changing World: Collected
Papers, Cambridge University Press, New York, 2010, p. 279.
49. Alexander Hamilton , “The Federalist No. 78”, The Judiciary Department,
Independent Journal, 14 June 1788.
50. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
51. Article II, section 2, clause 2, U.S. Constitution
52. Alexander Hamilton, op. cit.
53. See Congressional Record, Proceeding and Debate on the 108th Congress,
Second Session, United States Government Printing Office, Washington,
Vol.150, Part 13, 2004, p. 17232.
54. Louis Madison, Address of L. Madison Day, BiblioLife, LLC, 2009, p. 21.
55. Alex, Allan, “Department for Constitutional Affairs”, Evidence to the
Senior Salaries Review, Body HMSO, 2006, pp. 27–30.
56. United
States
Court
of
Appeals
for
Veterans’
Claims
http://www.uscourts.cavc.gov/
accessed 25 January 2010
57. Gideon v. Wainwright, 372 U.S. 335 (1963)
58. http://www.uscourts.gov/EducationalResources/ConstitutionResources/Leg
alLandmarks/LandmarkSupremeCourtCases.aspx
aceessed 29 April 2009
59. Miranda v. Arizona, 384 U.S. 436 (1966)
60. Constitution 101 - Fourth Amendment
http://www.examiner.com/law-and-politics-in-houston/constitution-101fourth-amendment
accessed on 18 August 2009
61. Terry v. Ohio 392 U.S. 1 (1968)
62. Associate Provincial Pictures Ltd. v. Wednesbury Corporation (1948) 1
K.B. 223
63. http://www.uscourts.gov/EducationalResources/ConstitutionResources/Leg
alLandmarks/LandmarkSupremeCourtCases.aspx
accessed 20 April 2009
192
64. http://www.infoplease.com/us/supreme-court/cases/ar41.html
accessed on 20 April 2009
65. United States v. Nixon, 418 U.S. 683 (1974)
66. U.S. Supreme Court Media, IIT Chicago-Kent College of Law
http://www.oyez.org/cases/1980-1989/1988/1988_88_155
accessed September 19, 2011
67. Texas v. Johnson, 491 U.S. 397 (1989)
68. http://www.oyez.org/cases/2000-2009/2000/2000_00_949/
accessed 20 April 2009
69. http://www.civiced.org/wtpcompanion/hs/index2009.php?menu=menu&&u
nit=4&&detail=court%20cases
accessed on 20 April 2009
70. http://law.jrank.org/pages/4945/Bush-v-Gore-U-S-Supreme-Court-StepsIn.html
accessed 20 April 2009
71. Bush v. Gore, 531 U.S. 98 (2000)
72. Union of India v. G. Ganaythuam (1997) 7 SCC 463
73. M.C. Mehta (child labour matter) v. State of Tamil Nadu, (1996) 6 SCC 756
74. State of Rajasthan v. Union of India, AIR 1977 SC 1361
75. (1994) 3 SCC 1
76. (2005) 6 SCC 321
77. “Annual Survey of Indian Law”, The Indian Law Institute, Volume XLI,
New Delhi, 2005.
78. (2005) 3 SCC 369
79. Robert Lowry Clinton, Marbury v. Madison and Judicial Review, The
University Press of Kansas, Lawrence, 1989, p. 176.
80. Albert J. Rosenthal, Louis Henkin, Constitutionalism and Rights: the
Influence of the United States Constitution Abroad, Columbia University
Press, New York, 1990, pp. 38-55.
81. www.stf.jus.br/arquivo/cms/.../anexo/Respostas_Venice.../8English.pdf
accessed 12 May 2010
193
82. http://www.oyez.org/cases/1970-1979/1971/1971_70_18
accessed on 21 March 2010
83. Roe v. Wade, 410 U.S. 113 (1973)
84. D.D. Basu, Introduction to the Constitution of India, 19th ed., Wadhwa and
Company Law Publisher, New Delhi, 2005, p. 41.
85. Robert E. Dewhirst, John David Rausch, Encyclopedia of the United States
Congress, Infobase Publishing, New York, 2007, p. 323.
86. Union of India v. S. B. Vohra, (2004) 2 SCC 150
87. People’s Union for Civil Liberties v. Union of India, 2003 (3) SCALE 263
88. http://legalservicesindia.com/article/print.php?art_id=726
accessed on 20 April 2009
89. Bakhshish Singh, The Supreme Court of India as An Instrument of Social
Justice, Sterling Publishers, University of California , 1976.
90. http://legalservicesindia.com/article/article/his-holiness-keshvanandabharti-vs-state-of-kerala-with-reference-to-agrarian-reforms-in-india-7261.html
accessed 29 July 2011
91. Kesavananda Bharati v. The State of Kerala and Others, (AIR 1973 SC
1461
92. Kesavananda Bharati v. The State of Kerala, AIR 1973 SC 1461: (1973) 4
SCC 1461:1973 Supp SCR 1 :( 1973) 4 SCC 225: (1973) 4 SCC 225
93. RC Cooper v. Union of India, AIR 1970 SC 564
94. Surendra Mishra, Presidential Addresses to Parliament, Lok Sabha
Secretariat, Northern Book Centre, New Delhi, 1996, p.209.
95. Manisha, Profiles of Indian prime ministers: Pt. Jawaharlal Nehru to Dr.
Manmohan Singh, Mittal Publications, New Delhi, 2004, pp. 140-141.
96. Manisha, op. cit., p. 141.
97. Dr. Bresler, “National Affairs”, Pennsylvania State University, USA.
98. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625
99. State of Madras v. V. G. Row, 1952 AIR 196, 1952 SCR 597
100.
L. Chandra Kumar v. Union of India, (1997) 3 SCC 261
194
101.
Golak Nath v. State of Punjab, (1967) 2 SCR 762: AIR 1967 SC
102.
Edgar Thorpe & Showick Thorpep, The Pearson CSAT Manual 2011,
Pearson Education India, New Delhi, 2011 p. IP.10.
103.
I.C Golaknath and Others v. State of Punjab, AIR 1967 SC 1647
104.
Jaivir Singh, “Separation of Powers and the Erosion of the ‘Right to
Property’ in India”, Constitutional Political Economy, Volume 17,
Number 4, Springerlink, 2006.
105.
Bibhu Prasad Mohapatra, “Rights as a Site of Struggle”, Draft paper
presented at IIM Kozhikode, 2010.
106.
http://indiacode.nic.in/coiweb/amend/amend25.htm
accessed on 23 April 2010
107.
Jagdambika Pal v. Union of India, AIR 1998 SC 98
108.
Amitabh Behar, Social watch India: Citizens Report on Governance and
Development, 2006: Minister Accountability Governors’ Role and the
Supreme Court Intervention: Question for Judiciary, Pearson Education
India, Delhi, 2006, p. 82.
109.
“Jharkhand Order Was A Breach Of Statute”,The Times of India,
11November 2007.
195