Saturday, June 30, 2012

Judicial Review in India

Literally the notion of judicial review means the revision of the decree or
sentence of an inferior court by a superior court. Judicial review has a more
technical significance in pubic law, particularly in countries having a written
constitution, founded on the concept of limited government. Judicial review in this
case means that Courts of law have the power of testing the validity of legislative
as well as other governmental action with reference to the pr ovisions of the
constitution.
In England, there is no written constitution. Here the Parliament exercises
supreme authority. The courts do not have the power to review laws passed by
the sovereign parliament. However, English Courts review the legality of
executive actions. In the United States, the judiciary assumed the power to
scrutinise exec utive actions and examine the constitutional validity of legislation
by the doctrine of ‘due process’. By contrast, in India, the power of the court to
declare legislative enactments invalid is expressly enacted in the constitution.
Fundamental rights enumerated in the Constitution are made justiciable and the
right to constitutional remedy has itself been made a Fundamental right.
The Supreme Court’s power  of judicial review extends to constitutional
amendments as well as to other actions of the legislatures, the executive and the
other governmental agencies. However, judicial review has been particularly
significant and contentious in regard to constitutional amendments. Under Article
368, constitutional amendments could be made by the Parliament. But Article 13
provides that the state shall not make any law which takes away or abridges
fundamental rights and that any law made in contravention with this rule shall be
void. The issue is, would the amendment of the constitution be a law made by
the state? Can such a law infringing fundamental rights be declared
unconstitutional? This was a riddle before the judiciary for about two decades
after India became a republic. 

In 1970, when the Supreme Court struck down some of Mrs Indira Gandhi’s
populist measures, such as the abolition of the privy purses of the former princes
and nationalisation of banks, the Prime Minister set about to assert the
supremacy of the Parliament. She was able to give effect to her wishes after
gaining two-thirds majority in the 1971 General Elections. In 1972, the Parliament
passed the 25th Constitutional Amendment act which allowed the legislature to
encroach on fundamental rights if it was said to be done pursuant to giving effect
to the Directive Principles of State Policy. No court was permitted to question
such a declaration. The 28th Amendment act ended the recognition granted to
former rulers of Indian states and their privy purses were abolished.

One of the limits on judicial review has been the principle of locus standi. This
means that only a person aggrieved by an administrative action or by an unjust
provision of law shall have the right to move the court for redressal. In 1982,
however, the Supreme Court in a judgement on the democratic rights of
construction workers of the Asian Games granted the Peoples Union of
Democratic Rights, the right of Public Interest Litigation (PIL). Taking recourse to
epistolary jurisdiction under which the US  Supreme Court treated a post card
from a prisoner as petition, the Supreme Court of India stated that any ‘public
spirited’ individual or organisation could move the court even by writing a letter.
In 1988, the Supreme Court delineated the matters to be entertained as PIL. The
categories are: matter concerning bonded labour, neglected children, petition
from prisoners, petition against police, petition against atrocities on women,
children, Scheduled Castes and Scheduled Tribes, environmental matters,
adulteration of drugs and foods, maintenance of heritage and culture and other
such matters of public interest.
Since the granting of the right to PIL, what some claim to be the only major
democratic right of the people of India, and granted not by the Parliament but by
the judiciary, the courts have been flooded by PILs. While the flood of such
litigation indicates the widespread nature of the deprivation of democratic rights.