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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 139 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 140 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 141 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 142 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.17 143 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, 144 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 145 ‘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 146 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. 147 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.28 148 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 149 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. 150 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 151 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 152 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: 153 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 154 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 155 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 156 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 157 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 158 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 159 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. 57 160 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.60 161 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, 162 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 163 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 164 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.67 165 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 166 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 167 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 168 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.81 169 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 170 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 171 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. 172 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. 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