Judicial Review: The Concept, Origin and Development/ VISHWA BHUSHAN

Judicial Review: The Concept, Origin and Development

                                                                                                                  - Vishwa Bhushan Mishra 

Introduction

Thanks to the famous ‘Due Process Clause’ of the 5the and the 14^th amendments, under the cover of which the Supreme Court of the USA has struck down Congressional laws as unjust, unreasonable, and violative of the spirit of the supreme law of the land, Judicial Review has emerged as one of the most effective instruments for preserving and protecting the cherished freedoms in a country dedicated to the ideal of constitutionalism. However, the great task of Judicial Review is not, and cannot, indeed, be confined to the “annulment of legislative discretion, or to fixing the outside border of reasonable legislative action.”[1]

That, indeed, is a negative function, very often destructive in its consequence, as the history of the US Supreme Court during the New Deal era of the 1930’s amply bears out. On that historic occasion, the US Supreme Court, impelled by an irresistible impulse for judicial activism, struck down as many as eleven Congressional statutes intended to counter the effects of the Great Depression and to set the United States on the path to social welfare state. This was essentially a distorted, miscalculated and faulty application of a doctrine which gains in significance only by being a positive and creative force intended to facilitate the achievement of the great objectives enshrined in the supreme law of the land. The chief worth of Judicial Review rather lies “in making vocal and audible the ideals that might otherwise be silenced, in giving them continuity of life and expression, in guiding and directing choice within the limits where choice rangers.[2] It has been pertinently observed that Judicial Review affirms as well as negates; it is both a power-releasing and a power-breaking function.[3] If the constitution is the vehicle of national life and social revolution, as it indeed is, and must be, then Judicial Review ought to accelerate and quicken its movement and expedite the realization of the social conscience. Today, the main question is not whether there should be Judicial Review in the constitution of a country, but to what extent and how it should remain and what purpose it should fulfill. The success or failure of a scheme of Judicial Review depends very much on how and to what extent it is attuned to the lofty ideal of constitutionalism as well as to the sprit and temper of a dynamic society.

If political constitutionalism is based upon a common belief in limited government and in the use of a constitution to impose these limitations and ensure a government of laws and not of men and if the essence of constitutionalism lies in a certain diffusion of power and if, again, it is advanced by “a system of checks and balances involving either a formal separation of powers or at least some division of governmental powers between judiciary and executive legislative authority”[4] the instrument of Judicial Review seems to be the most efficacious for its fulfillment, and is an essential condition for democratic government.

It is sometimes believed that the institution of Judicial Review is predicated upon the existence of a written constitution that is also rigid to some extent.[5] This opinion seems to get its emphatic assertion in the judgment of Marbury v. Madison[6] in which Chief Justice Marshall uttered: “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation and consequently the theory of every such government must be, that an act of and legislature repugnant to the contrition is void.

Expert opinion on this matter seems to be that what is of essence in Marshall’s judgment is the emphasis direct or indirect on the supremacy of the constitution. In fact Marshall’s interpretation was not received favorably at that time and has been challenged since.  

Prof. Corwin puts it. “Whole the written constitution is nowadays an almost universe feature of popular government Judicial Review is encounter much less frequently”[7]. Thus Judicial Review at least in the sense in which it has developed in the U.S.A. is an implied not a substantive power. It is commonly implied as in the U.S.A. from the Supreme Court’s judicial power to interpret law and decide cases. But at the same time it is to be borne in mind that this power even in the country of its modern origin and development in not necessarily related to or derived from the ordinary judicial function of law enforcement. And court called upon to interpret and apply a statue is under no compulsion of logic it asks first whether the statue is valid in terms of some higher constitutional law unless the validity of such law or statute is itself challenged. A statute is deemed to be valid and constitutional by the court unless validity or constitutionality thereof is itself challenged or brought to question before the court and is thus declared unconstitutional.

Under Chief Justice Marshal’s Theory, judicial review is less necessary adjuncts to the written constitution than a supplement to limited government and a paramount constitution. The supremacy of the organic constitution law and the fundamental distinction between this law and the ordinary law quite logically imply that any act of the ordinary law making bodies, which contravenes the provisions of the paramount law must be void and that there must be some organ and some mechanism by and through which this can be done. This may not be confined to a review of the legislative acts. “once the Constitution is regarded as the supreme law of the land and the powers of all the other organs of government are considered as limited by its provisions, it follows that not only the legislature but also the executive and all administrative authorities are equally limited by its provisions, so that any executive or administrative act which contravenes the provisions of the constitution must similar be void and the courts must invalidate them.

The foundation for this institution was laid truly and well, and the example afforded by the U.S.A. was followed very soon by other countries. The American judicial process served as great institutions of the South, Argentina, Bolivia, Columbia, Venezuela and Cuba acknowledged the supremacy of the Constitution on the typical U.S. pattern. The constitutions of Guatemala[8], Ecuador[9], Eire[10], Nicaragua[11], Brazil (1891), Haiti (1915)[12], Honduras (1925)[13], Spain (1932), Rumania (1923), Czechoslovakia (1920).

The countries including England, Canada, Australia, Denmark, Hong-Kong, Germany, Scotland, Sweden, Switzerland, Malaysia, Japan, USSR, and Brazil also incorporate the concept of Judicial Review in their system either by the constitution or by judicial pronouncements, either in the strict sense of the words or by some modifications or changes suitable to their conditions and requirements.

In this paper we shall try to trace the meaning, nature, scope, Origin and development of the Concept of Judicial Review generally and with regard to India also.

Meaning of Judicial Review

Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary.

It is Examination by a country's courts of the actions of the legislative, executive, and administrative branches of government to ensure that those actions conform to the provisions of the constitution.

In other words it is the control of two branches of the government (i.e. the Executive and the legislature) by the third branch (i.e. the Judiciary) only to the extant that their actions are in conformity with and not in violation of the constitution.

Actions that do not conform are unconstitutional and therefore null and void. The practice is usually considered to have begun with the ruling by the Supreme Court of the United States in Marbury v. Madison[14]. Several constitutions drafted in Europe and Asia after World War II incorporated judicial review. Especially subject to scrutiny in the U.S. have been actions bearing on civil rights (or civil liberty), due process of law, equal protection under the law, freedom of religion, freedom of speech, and rights of privacy.

Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

In its narrow usage, especially since its adoption in the American constitutional system judicial review has been used to indicate the institutional arrangements by which the courts of law pronounce judgment on the constitutional validity of the disputed pieces of legislation enacted by the law-making organ via the legislature. Considered as a mechanism for upholding the supremacy of the basic law in a country governed by the ideal of political constitutionalism judicial review implies a comprehensive judicial enquiry into and examination of the actions of legislative executive and administrative branches of government eat the specific purpose of ensuring their conformity to the specified constitutional provisions. In an age of increased importance of administrative

law judicial review is not a term of art but means “Judicial scrutiny and determination of the legal validity of instruments, acts and decisions.[15] In this very broad sense however, judicial Review includes, for example, “The many-sided jurisdiction exercised by the award of declaratory orders to and against administrative bodies, and the jurisdiction to scrutinize admin administrative determinations for errors of aw and other defects which render them voidable but not invalid”[16]. Sometimes too, the expression is loosely used to apply to such review when these actions are being judged by statutory rather than constitutional standards. It is in this loose sense that the mechanism of judicial review is practiced and applied in countries like England where to all intents and purposes, the doctrine had its first seeding. 

In the course of its development and evolution, judicial Review has acquired a variety of meanings.  First, form the point of view of the degree and extent of its operation a distinction is made between ‘federal’ Judicial Review and ‘national’ Judicial Review While the former means the right of the courts, in a federal state, to scrutinize the laws enacted by the component units of the federation on the touchstone of their compatibility with national law, i.e., law passed by the national legislature (in Switzerland), the latter which is more common and more comprehensive implies the power to test “national’ laws themselves in regard to their conformity to the higher law, i.e., the Constriction (in the U.S.A.), Second, as stated earlier, Judicial Review implies an examination of the administrative decrees and orders passed under the authority of law, as distinguished from the review of the law itself a recent development. Third, within the broad meaning of the constitutionality of laws, a fundamental meaning of the constitutionality of laws, a fund-Review, to indicate ‘procedural’ or ‘extrinsic’ examination of the validity of laws    (in India), and material Judicial Review, to denote the ‘substantive’ or ‘intrinsic examination of the content and spirit of the law on the constitution ( in the U.S.A.).

According to Political Dictionary: Judicial Review is the power to review legislative and executive acts and to nullify those that are believed to contravene the constitution. Used in a number of countries including Australia, Pakistan, Japan, India, Germany, Italy, and the United States.

Judicial review is not in fact mentioned in the US Constitution, nor was it discussed at the Constitutional Convention in 1787. It has, however, been suggested that the practice 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 legislation 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 meaning as well as the meaning of any particular act proceeding from the legislative body.’

The principle of judicial review was further elaborated and justified in one of the most famous Supreme Court decisions, Marbury v. Madison[17] when part 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. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; It is emphatically the province and duty of the judicial department to say what the law is.’

According to Philosophy Dictionary: Judicial Review is  the system, especially entrenched in the United States, whereby a supreme court or other legal body is empowered to review and possibly to strike down legislation enacted by a democratically elected body, on the grounds that it transgresses against fundamental principles enshrined in a constitution. It is seen by many, especially lawyers, as a bulwark against majority tyranny, and by politicians who cannot find a way to co-opt it as a legalistic obstacle to democratic process.

According to US Government Guide:  Judicial Review is  the power of the judiciary, or the courts, to determine whether the acts of other branches of government are in accordance with the Constitution. All courts, federal and state, may exercise the power of judicial review, but the Supreme Court of the United States has the final judicial decision on whether laws or actions of local, state, or federal governments violate or conform to the U.S. Constitution, the highest law of the land.

Judges use their power of judicial review only in cases brought before the courts. They consider only actual controversies, not hypothetical questions about the Constitution. Congress cannot, for example, ask the Supreme Court for its advice about whether a bill is constitutional. The Court would make this kind of decision only if the bill became a law and someone challenged it.

Judicial review is not mentioned in the Constitution. However, before 1787 this power was used by courts in several of the American states to overturn laws that conflicted with the state constitution.

According to US History Encyclopedia: Judicial Review is   

When a court measures a statute or an executive action against a constitution, treaty, or other fundamental law, judicial review has occurred.

The antecedents of modern judicial review were three: first, Edward Coke's opinion in Bonham's Case (1610), in which he declared an act of Parliament to be against "common right and reason" and therefore void; second, the opinions of the British Privy Council finding certain measures of colonial legislatures to have exceeded authorization under their royal charters; and third, early U.S. state government decisions that state statutes exceeded the permissible bounds set forth in the state constitutions. There were also some early state and federal decisions suggesting that even where the state or federal constitutions were silent, certain basic principles of "republican governments" could not be disregarded by legislators, principles that would be grounds for striking down statutes.

In American legal language, "Judicial Review" refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States.

In context of India we can say that Judicial Review means power of the apex court to decide the validity of any legislative or administrative action and to declare it unconstitutional. By the term Judicial Review we mean also the power of the higher courts to declare any judicial action of the lower court to be void or erroneous if it contravene any of the provisions of the local or national laws or is violative of their judicial power and jurisdiction or result in miscarriage of justice. Such power of Judicial Review with regard to the judicial action can be exercised by way of appeals, review, revision, etc.

Basic Aspect of the Working of the Principle of Judicial Review

The exercise of the power of Judicial Review is normally an incidence of the type or character of a government or a constitution. In general, however, taking into account its actual operation through the years, it may be observed that Judicial Review as a preserving instrument of constitutionalism extends to three principal areas: first, it preserves the constitutional balance of authority between the central and state governments in a federal system; second, it maintains and preserves the balance between executive power and the legislative power on the same governmental level; and, third, it defends the fundamental human freedoms and thus acts as the ‘great sentinel’ of the cherished values of life. All these three aspects of the exercise of Judicial Review power may be found in a single federal state, based on the principle of separation of powers and guaranteeing, constitutionally, certain ‘basic’ freedoms to the people. Some constitutions, however, might, as they sometimes do, in fact, exhibit only one of the three aspects of the exercise of this power, to the exclusion of the rest. But what is important to keep in mind is that each of these three aspects assumers tremendous significance in the specific contexts to which they apply.

It must not be taken for granted that this function of the judiciary is strictly confined to countries with federal constitutions. In the U.K., where a unitary form of government obtains, the courts may not but undertake an evaluation of the wisdom of the legislature, but have the right and duty to examine whether the administrative officials actually step beyond the jurisdiction determined by the Parliament and follow certain procedural rates in their working. In other words, the courts have clearly a limiting function. It is generally assumed that the judiciary should have the last word in regard to the meaning of the division of powers in a federation. This is controverted by those who hold that what is essential for federal government is that some impartial body, independent of both the parties to a federation, should decide upon the matter. This qualification, however, is of mere theoretical importance, because, in the U.S.A., practice has established the claim of the judiciary alone in this regard, and the judicial organ is, to all intents and purposes, a part of the central government. In point of actual practice, in most of the countries having federal constitutions, especially in the U.S.A., the exercise of this power has born little relation to the fact of the federal structure.[18]

Origin of the Concept

It is generally assumed that the institution of Judicial Review originated only in the U.S.A. through the exercise of such power by the American Supreme Court. This notion is true in a very limited sense, but is otherwise disproved by the facts of history. Historically seeking the origin of this institution can be traced to the earliest period of English legal history the ides of a fundamental or higher law was in the main, identified with the system of common law and with the recognized rights of the Englishmen. Judicial Review in England rests upon a mass of case laws stretching from decisions on procedures long obsolete down to the present day and illustrates the way in which common law adapts itself to new needs.[19] The origin of Judicial Review can be traced back to the decision of Sir Edward Coke, the lord Chief Justice of the Common pleas in England who declared by way of dictum, in the famous Dr. Bonham’s case that “it appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right and reason and repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void”.

Coke believed that the common lawyer possessed “artificial reason of the law” and that this capacity elevated him to nearly equal footing with king and Parliament. According to Coke, special learning required to interpret the law placed it above politics.

The basic idea underlying Judicial Review is generally considered to stem from these pronouncements[20] which show how deeply the AMERICAN PLAN of Judicial Review was rooted in the English legal tradition.[21]

For Coke it was the common law which assigned to the King his powers to each of the Courts of the realm its proper jurisdiction law was the fundamental law of the realm and the embodiment of reason, and substantially unchangeable. Even parliament itself was unable to change the underlying principles of justice embodied in the common law.

But Coke’s mighty efforts to establish the supremacy of common law were drowned into the oncoming tide of parliamentary supremacy which though contrary to the erstwhile tradition of the English constitution ultimately prevailed and set the pattern of the constitutional law. Henceforth, English judger was to be guided by the Blackstonian principle that the power of parliament is absolute and without control.[22] As Erskine may points out, “the Constitution has assigned no limits to the authority of Parliaments over all matters and persons within its jurisdiction. A law may be unjust and contrary to the principles of sound government. But Parliament is not controlled in its discretion and when it errs; its errors can be itself.[23]

This conception of the supremacy of common law, together with the belief that courts were peculiarly the defenders of the people rights, was carried by some Englishmen who settled in America.

In 1761 the first significant American elaboration of Bonham's Case occurred. James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. Although colonial courts resisted such radical assertions, these claims nonetheless made the idea of judicial review an important feature of American constitutionalism.

The subsequent bitter experience of the repressive and tyrannical laws of the British Parliament relating to the American Colonies, the influence of the Blackstonian principles, the impact of Montesquieu theory of the separation of powers on the framers of the Constitution-all these dictated the need to institute safeguards against the executive as much as against the representative assembly, the legislature. Though no specific mention of the role of the courts was found in the Constitutions when it was drafted and enacted, this could be deduced from the ‘supremacy’ clause[24] and the provision for the scope and extent of judicial power.[25]

After the Revolution, the framers of the Constitution, Prominent leaders of the founding generation and future Supreme Court judges James Wilson of Pennsylvania, Oliver Ellsworth of Connecticut, and John Marshall of Virginia argued in their state ratifying conventions that the national government would be limited by the judicial check.

In The Federalist Papers[26], Alexander Hamilton endorsed the idea of judicial review and provided one of its most compelling ideological foundations. Hamilton wrote that “whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. The judiciary has no influence over either the sword or purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment”. Thus, with such reassurances, Hamilton defended the practice of judicial review.

Since the origins of constitutional government in America, judicial review has followed Hamilton's thinking that judges have a special capacity and responsibility to expound the meaning of the Constitution.

As a Supreme Court justice, James Iredell, who had been a proponent of judicial review during the Constitutional Convention, developed an institutional foundation for judicial power in his seriatim opinion in Calder v. Bull.[27] He argued against grounding decisions of the Court in the laws of nature. Instead, Iredell proposed that the only basis for invalidating a statute that had been erected by “the legislature of the Union or the legislature of any member of the Union” was that it violated a provision of the written Constitution in a “clear and urgent case”.

While the subsequent 5^th and 14^th Amendments adopting the ‘due process Clause’ gave the opportunities for the exercise of the power of Judicial Review by the Supreme Court, it was not until Chief Justice Marshall decided in 1803 in Marbury v. Madison[28] that its intuition had been maintained as integral and vital part of the American system of government.

Early Decisions

“If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. … They would declare it void,” insisted future chief justice John Marshall at the 1788 Virginia Ratifying Convention. Marshall supplied a practical meaning to these words in the classic case of Marbury v. Madison[29], in which he securely rooted the modern doctrinal source of judicial review.

Because of judicial review the justices would not enforce an unconstitutional act. Through his opinion in Marbury[30], Marshall simultaneously limited and expanded the Court's power; less power became more. The chief justice accepted the inherent limitation placed on the scope of judicial power, but he boldly asserted that the Court had a responsibility to say what the Constitution meant.

Marshall's opinion was defensive; it sought to keep the Court free of political pressures by limiting its role to clearly legal as opposed to political issues. Marshall did not exercise judicial discretion in the modern sense of the word. Interpreting law was not synonymous with making it.

Although some nineteenth century state court decisions claimed no more for judicial authority than did Marbury[31], later instances of judicial review asserted a broader scope of judicial power. Marshall's decisions involving the constitutionality of state legislation proved considerably more controversial in time than Marbury[32]. In a series of major decisions between 1810 and 1824, Marshall resorted to natural law, the Contracts Clause, and the commerce power, among others, to void state statutes.

In Fletcher v. Peck[33], Marshall relied both on natural law formulations drawn from Calder and on the contracts clause of Article I, section 10 of the Constitution to strike down a state statute interfering with title to real property.

But nine years later, in Dartmouth College v. Woodward[34], Marshall abandoned the natural law leg of his Fletcher[35] reasoning and relied on the Contracts Clause alone to thwart a state's attempt to modify the charter of a corporation.

Marshall limited a state's power to revoke a legislatively granted tax exemption in New Jersey v. Wilson[36], a particularly controversial holding because it cut so close to sovereign state powers. He extended the reach of judicial power over state taxation in McCulloch v. Maryland[37], arguably his greatest and most influential opinion, holding that a state could not tax the Bank of the United States or any other instrumentality of the federal government. McCulloch[38] provoked a storm of controversy, most of it emanating from Virginia, but that did not deter Marshall from constricting the Eleventh Amendment in Osborn v. Bank of the United States[39] to prohibit the State of Ohio from taxing a branch of the Bank in violation of the McCulloch holding.

Martin v. Hunter's Lessee[40], an opinion written by Justice Joseph Story after Marshall had to excuse himself for personal interest in the subject matter of the litigation, asserted the power of the United States Supreme Court over the politically sensitive subject of state confiscation of Loyalist property during the War for American Independence.

Gibbons v. Ogden[41] provided the Court its first opportunity to construe the Commerce Clause of Article I, section 8, which Marshall used to void a state monopoly of river transportation. Although the Contracts Clause remained the Court's most potent weapon of discipline over state legislation throughout the nineteenth century, the Commerce Clause was to emerge in the twentieth as the principal source of federal legislative authority, and Marshall's expansive reading set it off on its career as the basis of vast federal regulatory power over the economy.

The then President Thomas Jefferson, responding to Marshall's opinion in Marbury[42], composed “Instructions to a Federal Prosecutory” in 1807, attempting to advance the prosecution of Aaron Burr for treason. Jefferson argued against citing Marbury[43] and proposed “to have the decision denied to be law.” He went on to hold “the three great branches of the government should be coordinate, and independent of each other.” Jefferson believed each branch of the government had the right to decide for itself the constitutionality of matters before it and objected to a claim that the Court's judgment was superior to that of the other branches. His efforts on behalf of repeal of the Judiciary Act of 1801 and the first judicial impeachments supported the doctrine of “coordinate construction,” whereby each branch of the federal government interprets the Constitution for itself.

The Court's power of review over federal legislation lay dormant for a half century after Marbury[44], despite the Court's activism with respect to state legislation. Chief Justice Roger B. Taney reassumed the power in DredScott v. Sandford[45] by invalidating the Missouri Compromise of 1820, a federal statute that prohibited the spread of slavery into the Louisiana Purchase territory north of Missouri.

President Abraham Lincoln's first inaugural address[46] indicates the continuing resistance to rule by the judiciary in the middle of the nineteenth century.

Grounding his analysis on the concept of the perpetuity of the union, Lincoln engaged in a disquisition on the nature and interpretation of the Constitution. Union came first; the purpose of the Constitution was to form a more perfect one. Lincoln acknowledged that decisions of the Supreme Court were binding on the parties involved and that they were also “entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.” But he also insisted that “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 instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” Lincoln's concluding reaffirmation of popular sovereignty continues to influence the meaning of judicial review even today.

Practice Emerging

The Supreme Court of the late nineteenth century realized the full potential of judicial review over both federal and state legislation. Marshall had asserted it, but after 1824 he was reduced to seeing its reach weaken in the face of political assault on its use against state legislation. Taney's respect for state authority avoided that clash, but his resort to the power to overturn federal legislation proved abortive in the Dred Scott[47] case. While the Supreme Court did not write on a clean slate after the Civil War, neither did its innovative decisions expanding judicial review occupy a crowded field of precedent. Thus the Court's creation of the doctrines of substantive due process and freedom of contract were innovations far in advance of anything adopted by the justices in the antebellum era.

A five justice majority of the Court relied on traditional notions of police power to uphold state regulatory authority (in this case, the grant of a monopoly over butchering activity in New Orleans) in the Slaughterhouse Case[48]. Though the Court strongly reaffirmed the role of the police power just four years afterward in Munn v. Illinois[49], the dissent of Justices Stephen J. Field and Joseph P. Bradley in Slaughterhouse[50] laid the basis for the sweeping triumph of substantive due process within two decades. Each insisted that any individual had a right to enter into contracts (including employment and business relationships, such as slaughtering), and that this right was protected by the federal Constitution. Field found that right primarily in the Privileges or Immunities Clause of the Fourteenth Amendment, Bradley in the Due Process Clause of that amendment. Bradley's view prevailed in the 1890s, first somewhat obscurely in Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota[51] and then triumphantly in Allgeyer v. Louisiana[52], where the Due Process Clause protected business contracts from legislative regulation.

This trend culminated twice before the New Deal, first in Lochner v. New York[53], where the Court by a 5 to 4 decision invalidated a New York statute prohibiting bakers from working more than sixty hours a week, and then after the war in Adkins v. Children's Hospital[54], when the Court, again by a 5 to 4 margin, struck down a state minimum wage law for women. In both of these major decisions, the majority found in the Fourteenth Amendment's Due Process Clause a substantive restraint on state legislative policy making.

Yet the Court was not consistent in its substantive due process approach, for it sustained far more legislation, state and federal, than it struck down.

World War I gave a short lived impetus to such results, especially those involving federal power. Thus, by the 1930s the Court had created two inconsistent lines of precedent, the one sustaining, and the other rejecting, the exercise of legislative power at the state and federal levels.

This conflict came to a head in the New Deal. Between 1934 and 1937, the Court first accepted state and federal regulatory efforts to contend with the economic crises of the Depression, in such leading cases as Home Building and Loan Association v. Blaisdell[55],   Nebbia v. New York[56]  and  Ashwander  v. TVA[57] . But the mindset of substantive due process shortly triumphed, and in a series of decisions that shocked the Roosevelt administration, the Court overturned federal legislative initiatives (e.g., Schechter Poultry v. United States[58], involving the National Recovery Act; and United States v. Butler[59], involving regulation of agriculture), as well as state legislation: Morehead v. New York ex rel. Tipaldo[60], (involving state minimum wage legislation).

President Franklin D. Roosevelt responded with the Court Packing Plan, an attempt to enlarge the Supreme Court and lower federal courts with FDR appointees more sympathetic to an activist legislative program. Though he failed in this effort, he won the larger campaign of forcing the Court to reverse substantive economic due process precedents dating back to the Slaughterhouse[61] dissents. The Court was now free to embark on a new period of judicial activism, liberated from the formalist mentality that produced Lochner[62] and its progeny.

Though the Court abandoned substantive due process in questions of economic regulation, the concept itself was not defunct, nor had the Court forsaken activism. Rather, it diverted its concern over legislative power from economic matters to problems of civil liberties and civil rights. Justice Harlan Fiske Stone enunciated this new direction obscurely, in United States v. Carolene Products Co.[63] stating that the Court would now scrutinize three categories of issues: “where legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments”; “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”, and “statutes directed at particular religious or national or racial minorities”. The Court lost no time in putting that agenda into effect.

The two substantive doctrinal contributions that characterize the growth period for the modern Court are acceptance of economic regulation and the nationalization of civil liberties.

Civil liberties protection was an extended consequence, a new preoccupation that represented, in the words of legal scholars, an “idea of progress.”

The desegregation decision, Brown v. Board of Education[64] ,criminal procedure holdings like Mapp v. Ohio[65], and the abortion decision in Roe v. Wade[66] epitomize the most recent period of judicial activism. Brown was a bold restatement of the concept of equality, resulting from America's repudiation of racial discrimination. In Roe, the standard of equality applied to abortion accommodated women's expanded roles in the marketplace. All of these decisions mobilized the institutional authority of the Court and the authority of federal over state law to advance the political idea of equal treatment.

While the Court Packing Plan of the New Deal forced a major diversion in the Court's use of judicial review, United States v. Nixon[67] affirmed the Supreme Court's power to stand against the other branches of the government. This decision, in which the Court ordered the president to turn over politically damaging materials, came at the height of a dramatic confrontation between Congress and the presidency. The political context in which the decision was reached boosted the authority of the Court in American political culture, because the justices ordered the president to act against his own interests. The president obeyed. This decision was widely heralded as saving the country from executive tyranny and was accepted as an assertion of the authority of the Supreme Court as the “final arbiter” in constitutional matters.

Modern Practice

Mid twentieth century judicial review emphasizes the Supreme Court's predominance over the executive and the legislative branches of the federal government and the states in matters of constitutional interpretation. The power derives from the justices' expertise in interpreting the Constitution and its supremacy as law. The language of law is constitutive because the various communities that compose the American nation accept its conventions. In constitutional law, judicial review is a function of professional and seemingly apolitical practices dating to John Marshall's opinions. The lawyers who speak to the courts today and the lawyers who sit on the bench have developed a special way of speaking about the power of judges, so much so that some observers have concluded that the Constitution is “what the justices say it is.”

On the occasion of the two hundredth anniversary of the Constitution, Solicitor General Kenneth W. Starr observed that “by virtue of the status of the Constitution as supreme law” the American system would “include the power of judicial review.”

Chief Justice William H. Rehnquist has noted that “We must realize that our work has no more claims to infallibility than that of our predecessors.” He pointed out that the statement “on the front of this building Equal Justice under Law describes a quest, not an institution.”

Recently the Court has shifted its attention away from civil liberties to separation of powers, an area in which the authority of judges is grounded in the expectations of the founders and the canons of constitutional philosophy. The erosion of the political question doctrine and the political content of some recent decisions coexist with continued assertions that judges are not simply politicians behind, the bench. Even as the Court attempts to establish the boundary of its legal authority, the justices continue to expand the bases of judicial review.

The political question doctrine is a device for transferring the responsibility for a question or decision to another branch of government, usually Congress. In the 1960s, the justices entered one of the last remaining spheres that had been closed off by the political question doctrine in the reapportionment decision Baker v. Carr[68]. According to some scholars, questions became political simply because judges refused to decide them.
The Court continues to move in that direction, as indicated by Davis v. Bandemer[69], the political Gerrymandering case. Although the Court did not find political gerrymandering to be discriminatory, the clear implication was that the justices might soon make such a finding. Thus there is little in the way of substantive questions that separate judges from other actors in the political process.

 
Yet other cases, such as Webster v. Reproductive Health Services[70], provide evidence of the new limits of judicial review. In the matter of judicial authority, the dissenting opinion by Justice Antonin Scalia portrayed vividly the need for the Court to protect itself from immersion in the political arena. “The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court's self awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not judicial”.

The current debate over the legitimacy of the Supreme Court's use of judicial review is only the most recent phase of a historical dialogue essential to the maintenance of the Constitution. The Court will continue to exercise judicial review; the constitutional order demands as much. In this sense, the lessons taught by the history of the Supreme Court and judicial review have nothing to do with the framers' intentions, either of implementation or scope. Rather, the past speaks to the present in another way. Americans can and will debate the legitimacy of judicial review, but they should know that dialogue nourishes their distinctive experiment in constitutionalism. Americans have never taken judicial review for granted, and they never can.

Judicial Review in India

Scope and Components of Judicial Review in India

Broadly speaking, judicial review in India comprises of three aspects: judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action. The judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of functions, transgress constitutional limitations[71]. Thus, judicial review 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 its 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 building, hospitals, roads and the like, or overseas aid, or compensating victims of crime[72].

In the landmark judgment of P.U.C.L v U.O.I[73] 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 republic democracy.

The constitution makers have reposed great confidence and trust in Indian judiciary by conferring on it such powers as have made it one of the most powerful judiciary in the world.  The Supreme Court has from time to time indulged in genuine and needful judicial activism and judicial review. It gave birth to the famous and most needed “Doctrine of Basic Structure”. The need of the changing society encouraged it to formulate and incorporate various theories, which originated outside India. One of such theory, which has great practical and social significance in India, is the “Doctrine of proportionality”. The said doctrine originated as far back as in the 19^th century in Russia and was later adopted by Germany, France and other European countries. By proportionality, it is meant that the question whether while regulating the exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose for which they were intended to serve[74].

In State of Madras v V.G. Row[75] observed: “The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all the cases. The nature of right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at that time, should all enter the judicial verdict.”

Ever since 1952, the principle of proportionality has been applied vigorously to legislative and administrative action in India. Thus, administrative action in India affecting the fundamental rights has always been tested on the anvil of the proportionality in the last 50 years even though it has not been expressly stated that the principle that is applied is the proportionality principle.

In Om Kumar v U.O.I[76], however, the

Apex Court

evolved the principle of primary and secondary review. The doctrine of primary review was held to be applicable in relation to the statutes, statutory rules, or any order, which has force of statute. The secondary review was held to be applicable inter alia in relation to the action in a case where the executive is guilty of acting arbitrarily. In such a case Article 14 of the Constitution of India would be attracted[77]. In relation to other administrative actions, as for example punishment in a departmental proceeding, the doctrine of proportionality was equated with Wednesbury’s unreasonable[78].

In Delhi Development Authority v. M/S UEE Electrical Engg. P. Ltd[79] the Supreme Court dealt with the judicial review of administrative action in detail. The court observed: “One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is “illegality”, the second “irrationality”, and the third “procedural impropriety”.

Another effective tool in the hands of judiciary, to test the validity of legislation, is to invoke the principle of “Reading Down”. The rule of reading down a provision of the law is now well established and recognized. It is a rule of harmonious construction in a different name. It is resorted to smoothen the crudities or ironing the creases found in a statute to make it workable. In the garb of reading down, however, it is not open to read words or expressions not found in it and thus venture into a kind of judicial legislation. The rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. It is to be used keeping in view the scheme of the statute and to fulfill its purposes[80].

In B. R .Enterprises v State of U.P.[81] the Supreme Court observed: “First attempt should be made by the courts to uphold the charged provisions and not to invalidate it merely because one of the possible interpretation leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted. For this, the courts have been endeavoring, sometimes to give restrictive or expansive meaning keeping in view the nature of the legislation. Cumulatively, it is to sub serve the object of the legislation. Old golden rule is of respecting the wisdom of the legislature, that they are aware of the law and would never have intended for an invalid legislation. This also keeps the courts within their track and checks. Yet inspite of this, if the impugned legislation cannot be saved, the courts shall not hesitate to strike it down. Here the courts have to play a cautious role of weeding out the wild from the crop, of course, without infringing the Constitution. The principle of reading down, however, will not be available where the plain and literal meaning from a bare reading of any impugned of any impugned provision clearly shows that it confers arbitrary or unbridled power”

It must be appreciated that a statute carries with it a presumption of constitutionality. Such a presumption extends also in relation to a law, which has been enacted for imposing reasonable restrictions on the fundamental rights.

These presumptions have to be rebutted before an allegation of unconstitutionality of a statute can be sustained.

Though the courts have wide powers of judicial review of Constitutional and statutory provisions. These powers, however, must be exercised with great caution and self-control. The courts should not step out of the limits of their legitimate powers of judicial review. The parameters of judicial review of Constitutional provisions and statutory provisions are totally different. In J.P. Bansal v. State of Rajasthan[82] the Supreme Court observed: “It is true that this court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute. It endangers continued public interest in the impartiality of the judiciary, which is essential to the continuance of rule of law, if judges, under guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matters come consider to be injurious to public interest. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so”.

In Syed T.A. Haqshbandi v State of J.&K. [83] the Supreme Court observe: “Judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the court exercising powers of judicial review unlike the case of an appellate court would neither be permissible nor conducive to the interests of either the officer concerned or the system and institutions. Grievances must be sufficiently substantiated to have firm or concrete basis on properly established facts and further proved to be well justified in law, for being countenanced by the court in exercise of its powers of judicial review. Unless the exercise of power is shown to violate any other provision of the Constitution of India or any of the statutory rules, the same cannot be challenged by making it a justiciable issue before the court”.

The courts are further required not to interfere in policy matters and political questions unless it is absolutely essential to do so. Even then also the courts can interfere on selective grounds only.[84]

Similarly, where a political question is involved, the courts normally should not interfere. It is also equally settled law that the court should not shrink its duty from performing its functions merely because it has political thicket[85]. Thus, merely because the question has a political complexion that by itself is no ground why the court should shrink from performing its duty under the constitution if it raises an issue of constitutional determination. Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political. So large as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so[86].

In B.R.Kapur v State of T.N. [87] the Supreme Court held that it is the duty of the court to interpret the Constitution. It must perform the duty regardless of the fact that the answer to the question would have a political effect.

If case the court forgets to appreciate this judicial wisdom, it would undermine the constitutional mandate and will disturb the equilibrium between the three sovereign organs of the Constitution.

Judicial Review under the Constitution of India.

The essence of constitutionalism rests in the limitations which it imposes on the organs of government as well as in a certain amount of diffusion of power. In a very formal sense, constitutionalism means the principle that the exercise of political power shall be restrained by rules which determine the validity of legislative and executive action by prescribing the procedure according to which it must be performed or by delimiting its permissible content.[88] These rules and principles may either be based on usages and conventions as in the U.K., or may be inserted by prohibitions in a basic constitutional document, the implication being that a disregard of such rules by any of the organ of government will amount to a violation of the basic constitutional document and, consequently, may be pronounced as ineffectual by the court of law whose power of review will thus act a significant balancing factor, and will maintain the sanctity and sprit of the Constitution

Judicial Review under the Constitution of India stands in a class by itself. Under the Government of India Act of 1935, the absence of a formal Bill of Rights in the constitutional document very effectively limited the scope of Judicial Review power to an interpretation of the Act in the light of the division of power between the centre and the units. Under the present Constitution of India the horizon of judicial review was in the logic of events and things, extended appreciably beyond a ‘formal’ interpretation of ‘federal’ provisions.

The debates of Constituent Assembly reveal, beyond any dispute, that the judiciary was contemplated as an extension of the Rights and an ‘arm of the social revolution’.[89] Judicial Review was accordingly, desired to be an essential condition for the successful implementation and enforcement of the Fundamental Rights. Members of Constituent Assembly were agreed upon one fundamental point that Judicial Review under the new Constitution of the U.S.A.[90], where the doctrine was more an ‘inferred’ than a ‘conferred’ power and more implicit than ‘expressed’ through constitutional provisions.

In the Report of the abhor Committee of Supreme Court, it was recommended that “a Supreme Court with jurisdiction to decide upon the constitutional validity of acts and laws can e regarded as a necessary implication of any federal scheme”.[91] This was eventually extended to an interpretation of the laws and executive orders on the touchstone of the Fundamental Rights. In the Draft Constitution of India, this power of Judicial Review in relation to fundamental rights found formal expression in Art. 8 (2) and Art. 25 (1) & (2) which, when adopted by the nation’s representatives in the Constituent Assembly on Nonmember 26, 1949, became the new Arts. 13 (2) and 32 (1) & (2), respectively, under the Constitution of India.

However there was a sharp controversy among the members of the Constituent Assembly over the perpetually veered question of reconciling the conflicting concepts of the individuals’ fundamental and basic rights and the socio-economic needs of the nation.           

As a result Judicial Review, which was recognized as the basic and indispensable precondition for safeguarding the rights and liberties of the individuals, was sought to be tempered by the urge for building up a new society based on the concept of welfare and social righteousness. The consequence was a drastic curtailment of the power of judicial Review of the Supreme Court of India. The overriding need for ‘security of the State’ consequent on the partition of India and its after-math, and growing fissiparous and subversive tendencies, merely provided further impetus to the process and made it a fait accompli. What happened as a result was that the much debated ‘Due Process Clause’, which was previously inserted in the original Draft Constitution, became the “first casualty”[92], and was eliminated from the purview of the Rights to Personal Liberty. Under Art. 21 of the new Constitution of India, it was replaced by ‘except according to procedure established by law’, and in Art. 31 (1) it was substituted by ‘save by authority of law.’

Simultaneously with this ‘new awakening’, a cluster of provisions was incorporated into the constitutional document so as to restrict the rights envisaged in Arts. 19, 21, and 31, and reduce the Supreme Court’s power of Judicial Review to one of ‘formal’ review. Lest Judicial Review stood in the way of social and economic progress, the door was kept wide open, through a comparatively flexible amending procedure, to impose the ultimate will of the popular representatives in the matter of removing constitutional limitations.

Constitution has been working for about 60 years since it is adopted, but it is indeed very difficult to make a correct appraisal of the course and development of Judicial Review, and its specific directions and tendencies.

The foundation of the Indian Supreme Court’s Review-power was laid firmly and well in the case of A.K. Gopalan v. State of Madras[93]. This case not only elucidated the principle of Judicial Review and the basis on which it would rest in future, but at the same time evolved a set off guidelines which would eventually set the pattern for the fundamentals of judicial approach to the Indian Constitution. Form ‘Gopalan’[94] to ‘Golaknath’[95] is, indeed, a long march, not only in respect of the nature and scope of Judicial Review itself, but in regard to the impact and consequences of such Review on the attainment of social objectives, too.

These two cases represent two distinct lines of judicial thinking, two distinct tendencies, and, also two separate sets of social philosophy. One represents a halting, over-cautious and tradition-bound attitude of the judiciary in restricting its own freedom of action by sticking to the express phraseology of the Constitution, scrupulously avoiding the nations of ‘Natural Justice’ and ‘Due Process’, and construing the law in favour of the legislature; the other represents a big, bold, and almost revolutionary effort to resurrect Judicial Review by expanding its horizon beyond a literal interpretation of the Constitution, introducing novel concepts like ‘prospective overruling’ and convening a Constituent assembly to amend the Fundamental Rights, and by prohibiting any legislative amendment of Fundamental Rights in future. The ‘Gopalan’[96] decision, while restricting the ambit of the individual’s rights to freedom and personal liberty, paved the way to the realization of the social objectives by its clear enunciation of the principle of judicial subordination to legislative wisdom and discretion, and by its emphasis on social control of individual liberties. The ‘Golaknath’[97] case, while trumpeting the individuals’ basic liberties as sacrosanct and transcendental, has indeed, made it almost impossible to enact social welfare legislation.

In between these two epical of ‘Judicial Self-Restraint’ and ‘Judicial Activism’, one can notice an axed course of development.[98] The period of strict interpretation, ushered in by the ‘Gopalan’[99] case, and followed by Romesh Thappar v. State of Madras[100], State of Madras v. Champakam Dorairagan[101], Keshav Madhav Menon  v. the State of Bombay[102] and Chiranjitlal v. Union of India[103] gave way to the subsequent period of widening and expansion of the power of judicial Review as manifested in Re Delhi of Laws Act[104], Dwarka Prasad v. State of U.P.[105], State of west Bengal v. Subodh Gopal[106], Dwarkadas v. Sholapur spinning and Weaving Co.[107] and State of West Bengal v. Bella Bannerjee[108]. However, since the Supreme Court’s interpretation of Art. 31 resulted in a severe setback for legislative enactments in the field of agrarian reform the Constitution (Fourth Amendment) Act, 1954 struck the sledgehammer on the possibility of judicial defiance of legislative policy leaving a bitter trail of frustration for the judiciary. Next followed a long period of “alternate rays of hope and despair”[109] between the years 1956-60, as reflected in various judgments, notable among them being Basheshar Nath v. Commissioner of Income-tax[110], M. S. M. Sharma v. Srikrishna[111], Kochunni v. Sate of Assam[112], Nanavati v. State of Bombay[113] and Daryo & others v. State of U.P.[114] one notices, during this period an increasing, though unconscious, bias in favor of legislative wisdom and policymaking[115]. In Hamdard Dawakhana v. Union of India[116] the Supreme Court came to the conclusion that when the unconstitutionality of an enactment is challenged on the ground of violation of any of the Articles in Part iii of the Constitutionality the ascertainment of its true nature and character becomes necessary, i.e., its subject matter the areas in which it is intended to operate its purpose and intent, have to be determined.

Concept of Judicial Review in Other States

Judicial Review in England

In England Judicial review is a procedure in  administrative law by which the courts supervise the exercise of public power on the application of an individual. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally.

The English constitutional theory as expounded by A.V. Dicey does not recognize a separate system of administrative courts that would review the decisions of public bodies (as in France, Germany and many other European countries). Instead, it is considered that the government should be subject to the jurisdiction of ordinary Common Law courts.

At the same time, the doctrine of Parliamentary sovereignty does not allow for the judicial review of primary legislation (Acts of Parliament). This limits judicial review in English law to the decisions of public bodies and secondary (delegated) legislation, against which ordinary common law remedies as well as special "prerogative orders" are available in certain circumstances.

However judicial review of primary legislation is permissible if it is contrary to the law of the European Union or the European Convention on Human Rights.

The constitutional theory of judicial review has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. The role of the courts was seen as enforcing the "will of Parliament" in accordance with the doctrine of Parliamentary sovereignty. However, the doctrine has been widely interpreted to include errors of law[117] and of fact and the courts have also declared the decisions taken under the Royal Prerogative to be amenable to judicial review.[118] Therefore it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.

As a general rule a decision is amenable to judicial review only if it is made by the public authority. In R v Panel for Takeovers and Mergers Ex. P Datafin[119], the Court of Appeal held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction.

The House of Lords held in O'Reilly v Mackman[120] that where public law rights were at stake, the claimants could only proceed by way of judicial review. They could not originate their action under the general civil law procedure, because that would be avoiding the procedural safeguards afforded to public authorities by the judicial review procedure, such as the requirement of sufficient interest, timely submission and permission for judicial review. However, a defendant may still raise public law issues as a defence in civil proceedings. So for example, a tenant of the public authority could allege illegality of its decision to raise the rents when the authority sued him for failing to pay under the tenancy contracts. He was not required to commence a separate judicial review process Wandsworth London Borough Council v Winder[121]. If an issue is a mix of private law rights, such as the right to get paid under a contract, and public law issues of the competence of the public authority to take the impugned decision, the courts are also inclined to allow the claimant to proceed using ordinary civil procedure, at least where it can be demonstrated that the public interest of protecting authorities against frivolous or late claims has not been breached (Roy v Kensington and Chelsea and Westminster Family Practitioner Committee[122], Trustees of the Dennis Rye Pension Fund v Sheffield City Council[123] ).

In Council of Civil Service Unions v Minister for the Civil Service[124], Lord Diplock summarized the grounds for reversing an administrative decision by way of judicial review as follows:

• Illegality
• Irrationality (Unreasonableness)
• Procedural impropriety

The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself.

Illegality as a ground for judicial review may include The decision is taken by the wrong person (unlawful sub-delegation), Error of law or error of fact, the powers used for the purpose different from the one envisaged by the law under which they were granted, ignoring relevant considerations or taking irrelevant considerations into account, fettering discretion

According to Lord Diplock's, a decision is irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it."[125] A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the 'rules of natural justice' have not been adhered to.The three grounds are mere indications: the same set of facts may give rise to two or all three grounds for judicial review.

Judicial Review in Canada and Australia

In the Commonwealth of Australia and Canada the practice of Judicial Review has not attained the same significance as in the U.S.A. but nevertheless, follows the same procedural forms. In these two countries, the principle of supremacy of the Constitution and the right of the courts to declare ultra virus acts of the Federal Parliament repugnant to the Conation has been well established.

Until 1982, Supreme Court of Canada could only overturn acts of Parliament if those acts violated the division of powers between the federal and provincial levels of government. With the introduction of the Charter of Rights and Freedoms in 1982, Canadian courts gained the power to overturn primary legislation.

“Neither the Canadian nor the Australian Constitution expressly provides for judicial review: but the Courts in both these Dominions have clothed themselves with this power on the basis of the theory that it is a logical and necessary adjunct of the judicial function”. The most prominent function of the High court in Australia is to interpret the Constitution but in exercising this task, the Court follies the British practice that it is interpreting a statute and does not admit political and   historical argument to the same effect as the American supreme Court. Further, this role is confined to the maintenance of Federal-State balance of power, and does not extend to the protection of the fundamental rights of the citizens, since there is no bill of rights in this Constitution.

Judicial Review in Denmark

Judicial review in Denmark implies assessment by the court whether laws are compatible with the constitution, and administrative acts are compatible with the law. The Constitution of Denmark does not expressly authorize the courts to review statutes, but the courts have inferred the right from its provisions.

As the constitution does not mention whether the courts can overturn legislative acts, it has been debated in Danish legal theory whether the courts are able to do this. However the courts have assumed this right which has been accepted by the government as well as parliament.

Previously it has been debated whether the courts were able to examine whether a law was in compliance with the material provisions of the constitution. However there is a consensus in recent legal theory that the courts have this power, citing a longstanding precedence. In 1912 the Supreme Court assumed that it had the power to try the constitutionality of tithe abolition laws. In 1921 the Supreme Court came close to declare a land reform law unconstitutional; and it was only because a judge changed his vote that the law was considered constitutional.

The first time a law was declared unconstitutional was in 1971, the second time in 1980 and the third and most recent case concerning the constitutionality of a law is from 1999 where the supreme court declared it to be a violation of the separation of powers and declared the law unconstitutional.

Since the courts are only competent to rule in concrete disputes not everyone can sue the state for passing an unconstitutional law. To do this the plaintiff has to have a legal interest in the case. However in 1996 the Supreme Court ruled that a group of citizens had legal interest in suing the prime minister over the law on accession to the European Union. The Supreme Court found that accession to the European Union was affecting the entire population in many substantial areas and that every Danish citizen thus had legal interest in the constitutionality of Danish accession to the EU.

Denmark has no constitutional court and thus the question on the constitutionality of a law is to be contested before the existing courts. All courts are able to rule on the constitutionality of a law but in practice such highly political cases would be appealed to the Supreme Court.

Judicial Review in Hong Kong

Hong Kong, formerly a British colony, became part of the People's Republic of China on 1 July 1997. The Basic Law, as agreed between the British and the China Governments, became the constitutional document of Hong Kong. The Basic Law provides that the previous law in force in Hong Kong, including Common Law, will be preserved, forming a Special Administrative Region (SAR). Thus, Judicial Review, as part of the Common Law, is also preserved. Article 35 of the Basic Law expressly provides the right of citizen to review executive acts in the court of law. Under the Basic Law, the court of Hong Kong is also delegated with the power to interprete the Basic Law. Thus, it is recognized by the Hong Kong courts that they have jurisdiction to check whether the executive or legislature are working within the boundaries of the Basic Law.

Like the United States, Hong Kong courts also held that they may review as to whether legislation passed by the legislature is in compliance with the Basic Law. This is different from the situations in UK where the court may have no such jurisdiction under the traditional doctrine of supremacy of parliament. The Hong Kong courts observed that reviewing legislation is possible because the legislature in Hong Kong is not, unlike its UK counterpart, supreme.

Judicial Review in Germany

The constitution of the Federal Republic of Germany establishes a separate Federal Constitutional Court of Germany that is empowered with reviewing acts of the Federal Republic Congress (the Bundestag) for their constitutionality. Other countries also have a separate court for this purpose. These are separate Supreme Courts that do not deal with appellate cases in civil and criminal law - but rather, just in constitutional cases. The Federal Constitutional Court of Germany can even review and reject constitutional amendments on the grounds that they are contradictory to the rest of the Federal Republic Constitution. This goes beyond even the powers of the Supreme Court of the United States, and the Supreme Court of Canada.[126]

Judicial Review in Scotland

The power of judicial review of all actions of administrative bodies in Scotland (including the Scottish Parliament) is held by the Court of Session. The procedure is governed by Chapter 58 of the Rules of Court. There are no time limits on seeking judicial review, although if proper administration is prejudiced by delay on the part of the pursuer, the court may exercise its discretion and refuse to grant a review. Despite the procedural differences, the substantive laws regarding the grounds of judicial review in Scotland are the same as in England and Wales. There is, however, one substantial difference in Scotland since there is no distinction between review of a public body and a private body, which is different from in England, where review is only possible in the case of a public body or a quasi-public body. Generally, it is confined to purely procedural grounds (the official action was illegal or improper), although the court will also sanction decisions which are, in substance, so unreasonable that no reasonable decision-maker could have reached it (so-called Wednesbury unreasonableness). A more rigorous standard of substantive review is applied where the matter complained of touches upon the pursuer's rights in terms of the Human Rights Act 1998. About six hundred judicial review cases are raised every year, but most are settled by agreement with only a small minority having to be decided by the court.[127]

Judicial Review in Sweden

The Constitution of Sweden (Ch. 11, § 14) provides for judicial review (Swedish: lagprövningsrätt) by all courts of the land, whether they be general or administrative courts. However, a court is able to declare an act passed by the Riksdag or an ordinance promulgated by the Government as being in violation of higher law (the Constitution, and, in the case of Government ordinances, laws passed by the Riksdag) and thus inapplicable only if the error is "manifest". This "requirement of manifestness" (uppenbarhetsrekvisitet) may, however, be removed as a result of a review of the Constitution which is currently underway. It has also become increasingly less relevant as many cases (such as the Åke Green case) are decided with primary reference to the European Convention rather than with reference to the rights provided by the Constitution itself. (Since 1994, the Constitution stipulates that no law or other regulation may violate the European Convention (Ch. 2, § 23).) Traditionally, a more important check on the ability of the Riksdag to pass laws in violation of the rights provided by the Constitution has been the judicial preview exercised by the Council on Legislation, which, while not binding on the Riksdag, it is nevertheless often respected.

Judicial Review in Switzerland

Article 190 of the Swiss Federal Constitution states that federal statutes and international law are binding on the Federal Supreme Court. In consequence, the courts are not empowered to review the constitutionality of federal statutes, but will, where possible, construe statutes so as not to create a conflict with the Constitution. The courts can suspend the application of federal statutes that conflict with international law, but tend to exercise this power cautiously and deferentially: In Schubert[128], the Federal Supreme Court refused to do so because Parliament had consciously violated international law in drafting the statute at issue.

The reason traditionally given for the lack of judicial review is the Swiss system of popular democracy: If 50,000 citizens so demand, any new statute is made subject to a popular referendum. In this sense, it is the people themselves that exercise review.

The situation described above for Swiss federal law applies mutatis mutandis to the constitutional and legal systems of the individual cantons. However, owing to the derogatory power of federal law, federal courts as a matter of course exercise judicial review on cantonal law, as well as on federal executive law (ordinances, executive orders etc.).[129]

Concluding Remarks

The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade that decision cannot be allowed to operate[130].

The doctrine of Judicial Review has found its enemies as much as its supporters. The criticisms have come as a consequence of the exercise of this power in a manner which did not appeal to many as just or reasonable. It is commonly pointed out that Judicial Review is essentially a negative, limiting and undemocratic concept. But this view is at best one-sided and partial. In making a fair, rational and balanced assessment of the doctrine of Judicial Review, it has to be borne in mind that Judicial Review, like the Constitution itself, affirms as well as negates; it is both a power-releasing and power-breaking function.[131] The main question today is not whether there should be Judicial Review in the constitution of a country, but to what extent it should remain and what purposes it should fulfil. Experience indicates that Judicial Review fulfils its purposes best when it seeks to protect and preserve the individual liberties. But this in itself involves a tremendous problem in the present era. How best to adjust the legalistic doctrine of Judicial Review to the needs of the day and the philosophy of the prevailing generation will ever remain constant theme for constitutionalists, jurists and politicians.

A bird eye view of the operation of the doctrine of judicial Review in the U.S.A. through the years will convince one that the role of the Supreme Court in the American scheme of government has been perceptibly changing especially since the years folioing the historic episode of 1937, nick-named by Prof. E. S. Corwin as ‘Constitutional Revolution Ltd. It was Prof. Crowin’s fond expectation shared by most right thinking progressive men that the Supreme Court of the U.S.A. would henceforth pay greater deference to the policy framing organs of the government, and by surrendering its self-acquired role as protector of economic privilege would try to reflect and accelerate the social conscience of the nation. These hopes have, to a great extent, if not fully, come true in the recent decades. A growing tendency towards judicial self-restraint and deference to the legislative policy has become the redeeming feature of the modern practice of Judicial Review in U.S.A. as reflected in the decisional process. This has resulted in two major changes in American constitutional development (a) an expanded interpretation of Commerce Clause power in order to enlarge the range of federal government’s legislative authority in dealing with the nation economic problems, and (b) a reduced significance if not complete elimination, of the Due Process Clause as a source of substantive right in restricting the power of the Congress and of States to deal with economic affairs.[132] The erstwhile status of judicial review as an instrument of conservatism has steadily political process in the formation of social and economic policies. There is a growing conviction today that the present Court, headed till recently by Chief Justice Earl Warren has become a creative force in American life. As one commentator put it in 1935-36, a narrow, headstrong majority, flouting persistent pleas for judicial self restraint, voiced by a highly esteemed minority, blocked regulation of the economy in the hands of an obese majority, the Constitution became a strait-jacket, not a vehicle of life… the warren court on the other hand, in expanding the limits of freedom, in buttressing the moral foundations of society in keeping porn constitutional alternatives to violent change bring us closer to the ideals we have long professed’’.[133]

The Constitution of India envisages separation of power between the three organs of the Constitution so that the working of the constitution may not be hampered or jeopardized. This thin and fine line of distinction should never be ignored and transgressed upon by any of the organ of the Constitution, including the judiciary. This rigid perception and practice can be given a go by in cases of “abdication of duties” by one of the organ of the Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the legislature or the executive. For instance, if the legislature delegates its essential and constitutional functions to the executives, it would amount to “excessive delegation” and hence abdication of the legislative functions by the legislature. In such cases, the theory of separation of powers would not come in the way of judiciary while exercising the power of judicial review.

This is more so, when the Constitution makers have conferred the important sovereign function of interpretation of the constitution and various statutes upon the judiciary. The Constitutional courts can even scrutinize the working of the lower courts besides analyzing legislative and executive actions. The superior courts, like High Courts and the Supreme Court, can issue various writs to control the functioning of lower judiciary. Besides, the High Court has supervisory jurisdiction over the lower courts. However, the High court cannot issue a writ against another High court. Similarly, the decision of the High Court or the Supreme Court cannot be questioned by way of a writ proceeding. Thus, a final decision of the Supreme Court cannot be questioned under Article 32 of the constitution of India, except by way of review petition. The Supreme Court in Rupa Ashok Hurra v Ashok Hurra[134] has judicially created an exception to this rule in the form of a “curative petition”. Thus, a curative petition can be filed before the Supreme Court under Article 32 in appropriate cases. The Supreme Court only in exceptional cases would exercise this power. This fantastic judicial innovation is based on the premises that no person should suffer due to the mistake of the court.  

The power to entertain a curative petition is not specifically conferred by the Constitution but can be exercised by the apex court under its inherent powers. This means that the Constitution is organic and living in nature. It is also well settled that the interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with passage of time, law must change. New rights may have to be found out within the constitutional scheme. It is established that fundamental rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court[135].

At this stage the words of Justice Bhagwati in the case of National Textiles Workers Union v P. R. Ramakrishna[136] need to be set out. They are: “We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind”.

It is further trite that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation[137]. These changed circumstances may also create a vacuum in the legal system, which has to be suitably filled up by the legislature. If the legislature fails to meet the need of the hour, the courts may interfere and fill-in the vacuum by giving proper directions. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field[138]. Thus, directions given by the court will operate only till the law is made by the legislature and in that sense temporary in nature. Once legislation is made, the court has to make an independent assessment of it. In embarking on this exercise, the points of disclosure indicated by this court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure there from cannot be countenanced[139]. The courts may also rely upon International treaties and conventions for the effective enforcement of the municipal laws provided they are not in derogation with municipal laws.

The above discussion unerringly points towards the permissibility and democratic nature of the judicial review in India. The judicial review in India is absolutely essential and not undemocratic because the judiciary while interpreting the constitution or other statutes is expressing the will of the people of India as a whole who have reposed absolute faith and confidence in the Indian judiciary. If the judiciary interprets the Constitution in its true spirit and the same goes against the ideology and notions of the ruling political party, then we must not forget that the Constitution of India reflects the will of the people of India at large as against the will of the people who are represented for the time being by the ruling party. If we can appreciate this reality, then all arguments against the democratic nature of the judicial review would vanish. The judicial review would be undemocratic only if the judiciary ignores the concept of separation of powers and indulges in “unnecessary and undeserving judicial activism”. The judiciary must not forget its role of being an interpreter and should not undertake and venture into the task of lawmaking, unless the situation demands so. The judiciary must also not ignore the self-imposed restrictions, which have now acquired a status of “prudent judicial norm and behaviour”. If the Indian judiciary takes these two “precautions”, then it has the privilege of being the “most democratic judicial institution of the world, representing the biggest democracy of the world”.  

BIBLIOGRAPHY

REPORTS AND JOURNALS

1. All India Reporter.
2. Constitution of India (Government of India, Publication).
3. Constituent Assembly Debates.
4. Draft Constitution of India, 1948 (prepared by the Drafting Committee of the Constituent Assembly of India).
5. Supreme Court Journals.
6. Supreme Court Reports.
7. A.I.R. Manuals.
8. The American Journal of Comparative Law.

BOOKS AND REFERENCES

1. Aiyar, Alladi Krishnaswami, ‘The Constitution and Fundamental Rights’, 1995.
2. Basu, D.D. , ‘ Commentary on The Constitution of India’, 1984.
3. De Smith, S.A., ‘Judicial Review of Administrative Actions’, 1959.
4. Encyclopedia Britannica, Vol. 8, 13.
5. Gajendragadkar, P.B., ‘The Constitution of India- its philosophy and basic postulates’, O.U.P., 1969.
6. Seervai, H.M., ‘The Constitutional Law of India’, 2006.
7. Shukla, V.N., ‘The Constitution of India’, 2008.
8. Ray, S.N., ‘Judicial Review and Fundamental Rights’, 1974.
9. Kermit L. Hall, ‘The Supreme Court and Judicial Review in American History’ , 1985.
10. Edward S. Corwin, ‘The Higher Law Backgrounds of American Constitutional Law’ , 1928.

WEB SITES

1. http://en.wikipedia.org/wiki/Judicial_review_in_Germany
2. http://en.wikipedia.org/wiki/Judicial_review_in_Switzerland.
3. http://en.wikipedia.org/wiki/Judicial_review_in_Scotland.
4. http://en.wikipedia.org/wiki/Judicial_review_in_Sweden.
5. http://en.wikipedia.org/wiki/Judicial_review_in_Denmark.
6. Human rights and judicial review. 1994. http://books.google.com/books?id=N_UjZarvAwYC&pg=PA135&dq=comparative+%22constitutional+review%22&as_brr=3&ei=xI0wSsePE4qsywSNx6GjDg#PPP7,M1.  (a comparison of national judicial review doctrines)
7. The American doctrine of judicial supremacy. 1914. http://books.google.com/books?id=Kev8w1pfnaUC&pg=PA3&dq=judicial+review&ei=3IkwSqG5IZbozATtxNCvDg#PPR5,M1.  (this book traces the doctrine's history in an international/comparative fashion)
8. "Constitutional Review in Comparative Perspective". The politics of constitutional review in Germany. 2005. http://books.google.com/books?id=bnmvFZouejkC&pg=PA9&dq=comparative+%22constitutional+review%22&ei=pI0wSsf1PIaCywTz2PiKDg#PPA9,M1
9. http://books.google.com/books?id=omgRkBP9vK0C.
10. http://www.answers.com/topic/supreme-court-of-the-united-states. Retrieved 2008-02-02. 
11. http://texaspolitics.laits.utexas.edu/html/just/0305.html. Retrieved 2008-02-03.
12. http://www.vanderbilt.edu/Econ/faculty/Daughety/SpeakingUp.pdf. Retrieved 2008-02-02.
13. http://parliamentofindia.nic.in/ls/debates/debates.htm. Retrieved 2008-02-22. 
14. http://ncrwc.nic.in/   

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[1] J.B. Thayer, ‘Doctrine of Constitutional Law’, pp. 129-156, Quoted in S.N. Ray, ‘Judicial Review and

  Fundamental Rights’, 1974, p. 1.

[2] B.N. Cardozo, ‘The Nature of the Judicial Process’, p. 94.

[3] Alpheus Thomas Mason, “Understanding the

Warren Court

: Judicial Self Restraint and Judicial Duty”,     

  in political Science Quarterly, Dec., 1966, pp.532.

[4] Edward McWhinney, Encyclopedia Britannica, Vol. 13, p. 172.

[5] Ibid.

[6] 1 Cranch 137, 2 L.Ed., 60 (1803).

[7] Encyclopedia of Social Sciences, Vol. 8, p. 462.

[8] Art. 137 (6).

[9] Art. 189.

[10] Art. 15, cl. 4 (2).

[11] Art. 285.

[12] Art. 99.

[13] Art. 135.

[14] Supra n., 6.

[15] S.A. deSmith, “Judicial Review of Administrative Action”, 1959, p. 16.

[16] Ibid.

[17] Supra n., 6.

[18] Lauterpacht, ‘An International Bill of the Rights of Man’, pp. 186-190.

[19] R.M. Jackson, ‘The Machinery of Justice in England’, pp.. 394-395.

[20] Williams W. Crosskey, ‘Politics and the Constitution in the History of the U.S.’, Vol. II,

    p. 941.

[21] G.H. Sabine, ‘A History of Political Theory’, 1957, p. 384.

[22] I.Cooley’s Blackstone, 2^nd ed., 159 (1872).

[23] Erskine May’s Parliamentary Practice , London, 1964, Quoted in S.N. Ray, ‘Judicial Review and

    Fundamental Rights’, 1974, p. 9.

[24] The constitution of the U.S.A, Art. VI, cl. 2.

[25]  Ibid, Art. III

[26]  Paper  No. 78.

[27] 3 US 386 (1798)

[28] Supra n., 6.

[29] Ibid.

[30] Id.

[31] Id.

[32] Id.

[33] 10 US 87 (1810).

[34] 17 US (4 Wheat) 518 (1819).

[35] Supra n., 33.

[36] 11 US 164 (1812).

[37] 4 Wheat 316 (1819).

[38] Ibid

[39] 22 US 738 (1824).

[40] 14 US 304 (1816).

[41] 22 US 1 (1824).

[42] Supra n., 6.

[43] Ibid.

[44] Ibid.

[45] 15 L. Ed. 691 (1857).

[46]  In the year 1861.

[47]  Supra n. 45.

[48] 16 Wallace 36 (1873).

[49] 94 US 113 (1877).

[50] Supra n., 48.

[51] 134 US 418 (1890).

[52] 165 US 578 (1897).

[53]  198 US 545 (1905).

[54] 216 US 525 (1923).

[55] 290 US 398 (1934).

[56] 291 US 502 (1934).

[57] 297 US 288 (1936).

[58] 295 US 495 (1935).

[59] 297 US ( I) 62 (1936).

[60] 298 US 587 (1936).

[61] Supra n., 48.

[62] Supra n., 53.

[63] 304 US 144 (1938).

[64] 347 US 483 (1954).

[65] 367 US 643 (1961).

[66] 410 US 113 (1973).

[67] 418 US 683 (1974).

[68] 369 US 186 (1962).

[69] 478 US 109 (1986).

[70] 492 US 490 (1989).

[71] L.Chandra Kumar v U.O.I, (1997) 3 SCC 261.

[72] U.O.I v S.B.Vohra (2004) 2 SCC 150.

[73] 2003 (3) SCALE 263.

[74] Teri Oat Estates (p) Ltd v U.T. Chandigarh (2004) 2 SCC 130.

[75] AIR 1952 SC 196.

[76] (2001) 2 SCC 386.

[77] E.P. Royappa v State Of T.N, (1974) 4 SCC 3.

[78] The famous case Associated Provincial Picture Houses Ltd v Wednesbury Corpn , (1984 )  1 KB 223     

    commonly known as “The Wednesbury’s case” is treated as the landmark so far as laying down

    various basic principles relating to judicial review of the administrative or statutory direction.

[79] 2004 (3) SCALE 565.

[80] C.G.E.S v Calcutta Municipal Corporation, 2003(6) SCALE 802.

[81] (1999) 9 SCC 700.

[82] 2003 (3) SCALE 154.

[83] (2003) 9 SCC 592.

[84] P.U.C.L v U.O.I.  2003 (10) SCALE 967.

[85] P.U.C.L v U.O.I, AIR 2003 SC 2363.

[86] State of Rajasthan v U.O.I, (1973) 3 SCC 592.

[87] (2001) 7 SCC 231.

[88] Prof. De Smith (1962), 4 Malaya Law Review, p. 205.

[89] Granville Austin, ‘The Indian Constitution- Cornerstone of a Nation’, O.U.P., 1966, p.164.

[90] Munshi Paper and Ayyar Papers, quoted from Austin, op. cit. n. 89, pp. 170-171.

[91] Report, First Series, p. 63.

[92] Constituent Assembly Debates, Vol. IX, p. 1501.

[93] AIR 1950 SC 27.

[94] Id.

[95] Golaknath v, State of Punjab, AIR 1967 SC 1643.

[96] Supa n., 93.

[97] Id.

[98]  T.S. Rama Rao, ‘Judicial Review in India: A Retrospect’, 1957, pp. 121-145.  

[99]  Supra n., 93.

[100]  AIR 1950 SC 124.

[101] AIR 1951 SC 224.

[102] 1951 SCJ 182.

[103] AIR 1951 SC 41.

[104] AIR 1951 SC 332.

[105] AIR 1954 SC 24.

[106] AIR 1954 SC 92.

[107] AIR 1954 SC 119.

[108] AIR 1954 SC 170.

[109] V.G. Ramachandran, “Fundamental Rights and Constitutional Remedies”, 1964, Vol. IV, p. 20.

[110] AIR 1959 SC 149.

[111] AIR 1959 SC 395.

[112] AIR 1960 SC 1080.

[113] AIR 1961 SC 112.

[114] AIR 1961 SC 1457.

[115] R.K. Dalmia v. Justice Tendulkar, AIR 1958 SC 538.

[116] AIR 1960 SC 554.

[117] Anisminic v. Foreign Compensation Commission (1969) 2 AC 147.

[118]Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374  

[119] (1987) 1 QB 815

[120] (1983) 2 AC 237

[121] Supra n., 78.

[122] (1992) 2 W.L.R. 239.

[123] (1987) 1 QB 815.

[124] (1985) AC 374.

[125] This standard is also known as Wednesbury Unreasonableness, after the decision in Associated         Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first imposed.

[126] "http://en.wikipedia.org/wiki/Judicial_review_in_Germany" visited 28 Feb., 2010, at 9.50 p.m..

[127] “http://en.wikipedia.org/wiki/Judicial_review_in_Scotland” visited 28 Feb., 2010, at 10.20 p.m..

[128] BGE 99 Ib 39

[129] "http://en.wikipedia.org/wiki/Judicial_review_in_Switzerland" visited 24 feb., 2010, at 9.56 p.m..

[130] Onkarlal Bajaj v U.O.I., AIR 2003 SC 2562

[131] Supra n. 3, p. 532. 

[132] Bernard Schwartz, ‘The Supreme Court: Constitutional Revolution in Retrospect’, 1957, pp. 10-38, 367-

     372.

[133] Supra n. 3, p. 558. 

[134] (2002) 4 SCC 388.

[135] P.U.C.L v U.O.I, (2003) (3) SCALE 263.

[136] (1983) 1 SCC 228.

[137] John Vallamattom v U.O.I, (2003) 6 SCC 611.

[138] Vishaka v state of Rajasthan, (1997) 6 SCC 241.

[139] Per P.V.Reddi, J in P.U.C.L v U.O.I, 2003 (3) SCALE 263: JT 2003 (2) SC 528 (Para 122).