Judicial Review, Independence

of Judiciary, Writ Jurisdiction, &

PIL
JUDICIAL REVIEW
• judicial review, power of the courts of a country to examine the actions of
the legislative, executive, and administrative arms of the government and to
determine whether such actions are consistent with the constitution.
Actions judged inconsistent are declared unconstitutional and,
therefore, null and void. The institution of judicial review in this sense
depends upon the existence of a written constitution.
• The conventional usage of the term judicial review could be more
accurately described as “constitutional review,” because there also exists a
long practice of judicial review of the actions of administrative agencies that
require neither that courts have the power to declare those actions
unconstitutional nor that the country have a written constitution. Such
“administrative review” assesses the allegedly questionable actions of
administrators against standards of reasonableness and abuse of
discretion.
• When courts determine challenged administrative actions to be
unreasonable or to involve abuses of discretion, those actions are declared
null and void, as are actions that are judged inconsistent with constitutional
requirements when courts exercise judicial review in the conventional or
constitutional sense.
• Features of Judicial Review
• Power of judicial review can be exercised by both the Supreme Court and
High Courts:
• Under Article 226 a person can approach the High Court for
violation of any fundamental right or for any legal right. Also,
under Article 32 a person can move to the Supreme Court for any
violation of the fundamental right or for a question of law. But the
final power to interpret the constitution lies with the apex court
i.e Supreme Court. The Supreme Court is the highest court of the
land and its decisions are binding all over the country.
• Judicial Review of both state and central laws:
• Laws made by centre and state both are the subject to
the judicial review. All the laws, order, bye-laws,
ordinance and constitutional amendments and all other
notifications are subject to judicial review which are
included in Article 13(3) of the constitution of India.
• Judicial review is not automatically applied:
• The concept of judicial review needs to be attracted and
applied. The Supreme court cannot itself apply for
judicial review. It can be used only when a question of
law or rule is challenged before the Hon’ble court.
• Principle of Procedure established by law:
• Judicial Review is governed by the principle of
“Procedure established by law” as given in Article 21 of
the Indian Constitution. The law has to pass the test of
constitutionality if it qualifies it can be made a law. On
the contrary, the court can declare it null and void.
Grounds for Judicial Review
• Constitutional Amendment
• Judicial Review in this phase is done for all the constitutional
amendments done by the authority. All those amendments which
are in violation of Fundamental Rights are declared void and it is
held to be unconstitutional. All the judicial review for the
constitutional amendments can be traced in history.
• We have already seen in the above-mentioned case laws that the
constitutional amendments were challenged and all those against
the constitution are declared unconstitutional and held void.
• We can trace the marks of judicial review of the constitutional
amendment in these cases: Shankari Prasad V. Union of India;
Sajjan Singh V. State of Rajasthan; I.C. Golaknath V. State of
Punjab; Kesavananda Bharti V. State of Kerala; I.R Coelho V. State
of Tamil Nadu. All these cases are discussed in detail above in this
paper.
 Administrative Actions
• In general terms, the constitutional validity of the administrative action can be
verified by the tests developed by Lord Diplock in the case of Council of Civil
Services Union v. Minister of Civil Services. The doctrine of Judicial Review is the
basic feature of our Constitution in India. These tests were as follow:
• Illegality
• Irrationality
• Procedure used
1. Illegality
• Law regulates the decision-makers and they should understand this. Their acts
and their decisions can be made illegal if they fail to follow the law properly.
Therefore, an action can be made illegal if the public body has no power to make
decisions on its own or if they have acted beyond the powers. For example, if
legislation who is related to the public body does not include the necessary power
nor do they have precise limits, their power can be used. Public bodies which act
in an illegal way are described as “ultra vires”.
• Legislation also allows the implementation of a wide and unrestrained discretion
by public body. It provides that a duty can be discharged in certain circumstances
but it does not tell a particular process to determine whether the circumstances
arise in a particular case or not.
• 2. Irrationality
• The courts can also interfere to quash a decision if they think that
it is unreasonable as it makes it “irrational” or “perverse” on the
part of the decision maker. A benchmark decision was made on
this principle of judicial review in 1948 in the Wednesbury case.
Judges do not get many opportunities in the ground of review, to
review the eminence of administrative decisions as the ground has
high magnitude for judicial interference which is not frequently
satisfied. In the Wednesbury case, Lord Greene stated that for
review to be successful, the administration decision should be
something that a person who is not sensible can dream that it is
within the powers of the authority.
• 3. Procedural Impropriety
• In this, the decision-makers should act fairly in making their
decisions. It is the principle which applies only to the matters of
procedure which is opposed to the substance of decision reached.
This case should be decided and heard by the people to whom it is
delegated and not any other person. The rules as follows:
• A person should be not be the judge in his own case;
• The person should hear the other person also.
• It is the duty of authority to act fairly before taking the matter. Public
body must not act unfairly as it amounts to abuse of power. It means-
• The Legislation must follow the decisions if they are expressed
procedures laid down by the legislation.
• It should not breach the rules of natural justice. The public bodies
should allow people to make decisions and hold their views which can
cause them to reach a decision based on prejudice.
• Legislature Power
• The constitutionality of a legislative act is determined by the courts if a
person institutes a case. The court can declare a legislative act void on
the basis of constitutionality. The legislative, executive or the
administrative determine whether the review by the courts are
prohibited by the constitution or not. The courts have the power to test
the validity of legislation as well as the actions of the government. The
superior courts cannot determine the merit of the legislation by
questioning whether the materials were sufficient or not before the
legislature.
Independence of judiciary in India

• Due to the prolonged British Raj and then a newly formed democracy,
there was always a concern on how the judiciary in India should
function. Hence, an independent judiciary was the answer to this
question.
• For the prosperity and stability of the country, the rule of law is very
important. An independent and impartial judiciary can establish a stable
rule of law. Independence of judiciary means, the power of upholding
the rule of law, without any fear or external influence, and maintaining
effective control over the actions of the government.
• The independence of the judiciary is part of the basic structure of the
Constitution. The independence of the judiciary ensures that the powers
of the Parliament, the State legislature, and the Executive, are properly
distributed and there is a balance between the demands of the
individuals and norms of the society. The legal system does not have
any ideology and political interests and is often rendered neutral.
• Few case laws which explain the concept of independence of the
Indian Judiciary
• In the case of S.P Gupta v Union of India (1982), the
court held that the judges should be fearless and should
uphold the principle of rule of law. This is the basis of
the concept of independence of the judiciary.
• In the case of Supreme Court Advocates-on-Record
Association & Anr. Vs Union of India (1993), the court
observed that the independence of the judiciary is
necessary for democracy to function effectively. The
court further concluded by stating the powers and rights
can never be hampered as long as the judiciary remains
independent from the executive and the legislature.
WRIT
• What is Writ?
• Writs are a written order from the Supreme Court or High Court that
commands constitutional remedies for Indian Citizens against the
violation of their fundamental rights.
• Article 32 in the Indian Constitution deals with constitutional
remedies that an Indian citizen can seek from the Supreme Court of
India and High Court against the violation of his/her fundamental
rights.
• The same article gives the Supreme Court power to issue writs for
the enforcement of rights whereas the High Court has the same
power under Article 226. The writs- Habeas Corpus, Mandamus,
Certiorari, Quo Warranto, and Prohibition
Types of Writs in India

• The Supreme Court of India is the defender of the fundamental

rights of the citizens. For that, it has original and wide powers. It
issues five kinds of writs for enforcing the fundamental rights of
the citizens. The five types of writs are:
1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto
Habeas Corpus

• The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body
of.’ This writ is used to enforce the fundamental right of individual
liberty against unlawful detention. Through Habeas Corpus, Supreme
Court/High Court orders one person who has arrested another
person to bring the body of the latter before the court.
• Facts about Habeas Corpus in India:
• The Supreme Court or High Court can issue this writ against both
private and public authorities.
• Habeas Corpus can not be issued in the following cases:
• When detention is lawful
• When the proceeding is for contempt of a legislature or a court
• Detention is by a competent court
• Detention is outside the jurisdiction of the court
Mandamus

• The literal meaning of this writ is ‘We command.’ This writ is used by the
court to order the public official who has failed to perform his duty or
refused to do his duty, to resume his work. Besides public officials,
Mandamus can be issued against any public body, a corporation, an inferior
court, a tribunal, or government for the same purpose.
• Facts about Mandamus in India:
• Unlike Habeas Corpus, Mandamus cannot be issued against a private
individual
• Mandamus can not be issued in the following cases:
• To enforce departmental instruction that does not possess statutory force
• To order someone to work when the kind of work is discretionary and not
mandatory
• To enforce a contractual obligation
• Mandamus can’t be issued against the Indian President or State Governors
• Against the Chief Justice of a High Court acting in a judicial capacity
Prohibition

• The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position issues a Prohibition writ against a
court that is lower in position to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it
does not possess. It directs inactivity.
• Facts about Prohibition in India:
• Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
• It can’t be issued against administrative authorities, legislative bodies and private individuals or bodies.
• Certiorari
• The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ is issued by a court
higher in authority to a lower court or tribunal ordering them either to transfer a case pending with them to itself or
quash their order in a case. It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error of
law. It not only prevents but also cures for the mistakes in the judiciary.
• Facts about Certiorari in India:
• Pre-1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial authorities and not against
administrative authorities
• Post-1991: The Supreme Court ruled that the certiorari can be issued even against administrative authorities
affecting the rights of individuals
• It cannot be issued against legislative bodies and private individuals or bodies.
Quo-Warranto
• The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ Supreme Court or
High Court issue this writ to prevent illegal usurpation of a public office by a person. Through this writ,
the court enquires into the legality of a claim of a person to a public office
• Facts about Quo-Warranto in India:
• Quo-Warranto can be issued only when the substantive public office of a permanent character created
by a statute or by the Constitution is involved
• It can’t be issued against private or ministerial office
• Note: This writ gives the right to seek redressal to any individual other than the aggrieved person.
• General Facts about Writs in India:
• Article 32 also empowers Parliament to authorize any other court to issue these writs
• Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs
• Article 226 empowers all the High Courts of India to issue the writs
• Writs of India are borrowed from English law where they are known as ‘Prerogative writs’
How Writ Jurisdiction of the Supreme Court Differs from that of the High Court?
Where Article 32 of the Indian Constitution empowers the Supreme Court to issue writs; Article 226 empowers the
High Courts of India. However, there are a few differences between the writ jurisdiction of both the courts which
are given in the table below:

Difference Supreme Court High Court

Purpose To only enforce To enforce fundamental rights but also for other
fundamental rights purposes (The expression ‘for any other purpose’
refers to the enforcement of an ordinary legal right)

Territorial Against a person •Against a person residing, government or authority

Jurisdiction or government located within its territorial jurisdiction only
throughout the Or
territory of India •Outside its territorial jurisdiction only if the cause of
action arises within its territorial jurisdiction

Power Article 32 is a Discretionary-May refuse to exercise its power to

fundamental right- issue writs
the Supreme Court
may not refuse to
exercise its power
to issue the writs
Public interest litigation:- Its origin and
meaning
• n Indian law, means litigation for the protection of public interest.
It is litigation introduced in a court of law, not by the aggrieved
party but by the court itself or by any other private party. It is not
necessary, for the exercise of the court's jurisdiction, that the
person who is the victim of the violation of his or her right should
personally approach the court.
• Public Interest Litigation is the power given to the public by courts
through judicial activism.
• Such cases may occur when the victim does not have the
necessary resources to commence litigation or his freedom to
move court has been suppressed or encroached upon. The court
can itself take cognisance of the matter and proceed suo motu or
cases can commence on the petition of any public-spirited
individual.
Public interest Litigation,
•
In simple words, means, litigation filed in a court of law, for the
protection of Public Interest, such as pollution, Terrorism, Road safety,
constructional hazards etc.
Public interest litigation is not defined in any statute or in any act. It has
been interpreted by judges to consider the intent of public at large.
• Although, the main and only focus of such litigation is only Public
Interest there are various areas where a Public interest litigation can be
filed. For e.g.
• - Violation of basic human rights of the poor
• - Content or conduct of government policy
• - Compel municipal authorities to perform a public duty.
• - Violation of religious rights or other basic fundamental rights
• In Black's law Dictionary (Sixth Edition), Public Interest is
defined as follows:Public Interest. –
• Something in which the public, the community at large has
something pecuniary interest, or some interest by which
their legal rights or liabilities are affected.
• It does not mean anything so narrow as mere curiosity, or as
the interest of the particular localities, which may be affected
by the matters in question. Interest shared by the citizens
generally in affair of local, State or national government..