Judicial Review: Powers and Meaning

Judicial Review

• Judicial Review originated and developed in the USA
• It was first propounded in Marbury versus Madison (1803) by John Marshall
• The Constitution confers the power of judicial review on the judiciary which includes both the Supreme Court and High Courts
• It is a basic feature of the Constitution

Meaning of Judicial Review

• This is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments

Judicial Review - Three Categories

• Judicial review of constitutional amendments is permitted
• Judicial review of legislation of the Parliament and State Legislatures and subordinate legislations is premitted
• Judicial review of administrative action of the Union and State and authorities under the state is permitted

Need for Judicial Review is Needed

• To uphold the principle of the supremacy of the Constitution
• To maintain federal equilibrium, this is a balance between the Centre and the states
• To protect the Fundamental Rights of the citizens

Constitutional Provisions For Judicial Review

• Article 13
• Article 32
• Article 131-136
• Article 143
• Article 226/227/245/246/251/254/372

Scope of Judicial Review

• Infringement of Fundamental Rights (Part III)
• Outside the competence of the authority which has framed it
• Repugnant to the constitutional provisions

Judicial Activism

• Originated and developed in the USA
• The term was first coined in 1947 by Arthur Schlesinger Jr, an American historian and educator
• The doctrine of judicial activism was introduced in India in the mid-1970s
• Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy and Justice D.A. Desai laid the foundations of judicial activism in the country

Function of Judicial Activism

• This involves the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in the society
• This entails the assertive role played by the judiciary to force the other two organs of the government (legislature and executive) to discharge their constitutional duties
• It can also be called Judicial dynamism
• PIL is an outcome of judicial activism and the most popular form of judicial activism

Relationship Between Judicial Review and Judicial Activism

• The concept of judicial activism is inherent in judicial review
• Judicial review empowers the court to uphold the constitution and declare laws and action inconsistent with the constitution as void
• Judicial activism ensures proper discharge of duties by other organs

Judicial Activism and Judicial Overreach

• Judicial Overreach is judicial activism when overtly exercised, resulting in the usurpation of the powers of the Executive or the Legislature
• These are the other two important organs of governance
• Judicial Restraint means the role of judges is scrupulously limited; their job is merely to say what the law is
• Lawmaking should be left to the legislators and the executives

Concerns about Judicial Activism

• It is criticized for ‘overreach’ and encroachment on the domain of the other two organs
• It must not become judicial adventurism
• There is a very fine line between Judicial Activism and Judicial Overreach which judges must understand and restrain themselves from crossing this line too often

Public Interest Litigation

• Originated and developed in the USA in the 1960s
• PIL is a product of the judicial activism role of the Supreme Court in India
• PIL was introduced in the early 1980s
• Justice V.R. Krishna Iyer and Justice P.N. Bhagwati were the pioneers of the concept of PIL
• It is also known as Social Action Litigation (SAL), Social Interest Litigation (SIL) and Class Action Litigation (CAL)

Functioning of Public Interest Litigation

• Any public-spirited citizen or a social organisation can move the court for the enforcement of the rights of any person or group of persons
• Persons who because of their poverty or ignorance or socially or economically disadvantaged position are themselves unable to approach the court for the remedies
• PIL as a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected

Tribunals

• These were added by the 42nd Amendment Act of 1976
• This added a new Part XIV-A
• Article 323 - A deals with administrative tribunals
• Article 323 B deals with tribunals for other matters

Administrative Tribunals

• Article 323 A empowers the Parliament to provide for the establishment of administrative tribunals for the adjudication of disputes
• These disputes relate to recruitment and conditions of service of persons appointed to public services of the Centre, the states, local bodies, public corporations and other public authorities
• Parliament passed The Administrative Tribunals Act in 1985
• This authorizes the Central government to establish one Central administrative tribunal and the state administrative tribunals

Central Administrative Tribunal (CAT)

• CAT exercises original jurisdiction in relation to recruitment and all service matters of public servants covered by it
• Its jurisdiction extends to the all-India services, the Central civil services, civil posts under the Centre and civilian employees of defence services
• Members of the defence forces, officers and servants of the Supreme Court and the secretarial staff of the Parliament are not covered by it
• CAT is a Multi-member body with a Chairman and members
• These are drawn from both judicial and administrative streams and are appointed by the president
• Appointed officials hold office for a term of five years or until they attain the age of 65 years (Chairman) or 62 years (Member), whichever is earlier
• The appointment of Members is on the basis of recommendations of a high powered selection committee chaired by a sitting Judge of Supreme Court who is nominated by the Chief Justice of India
• After obtaining the concurrence of Chief Justice of India, appointments are made with the approval of Appointments Committee of the Cabinet
• The CAT is not bound by the procedure laid down in the Civil Procedure Code of 1908
• It is guided by the principles of natural justice
• An applicant may appear either in person or through a lawyer
• Chandra Kumar case (1997) determined that Appeals against the orders of the CAT shall lie before the division bench of the concerned high court

State Administrative Tribunals

• The Administrative Tribunals Act of 1985 empowers the Central government to establish the State Administrative Tribunals on specific request of the concerned state governments
• SATs exercise original jurisdiction in relation to recruitment and all service matters of state government employees
• The chairman and members of the SATs are appointed by the president after consultation with the governor of the state concerned
• The Act makes Provision for setting up of joint administrative tribunals for two or more states
• A JAT exercises all the jurisdiction and powers exercisable by the administrative tribunals for such states
• The chairman and members of a JAT are appointed by the president after consultation with the governors of the concerned states

Tribunals for Other Matters

• Article 323 B authorizes both Parliament and the state legislatures to provide for the establishment of tribunals for the following matters:
  • Taxation
  • Foreign exchange, import and export
  • Industrial and labour
  • Land reforms
  • Ceiling on urban property
  • Elections to Parliament and state legislatures
  • Food stuffs
  • Rent and tenancy rights