Judicial Review

Introduction

Judicial authority is the authority of the courts to declare laws or actions of government officials unconstitutional. To safeguard the liberty and rights of individuals, the judicial review is recognized as necessary and a basic requirement for construction up of a novel civilization. The powers of judicial review are vested significantly by means of the higher judiciary of states and the Supreme Court of India. The doctrine of judicial review is the basic structure of constitution.

Nature and Scope of Judicial Review

The power of judicial review controls not only the legislative but also the executive or administrative act. In judicial review the court is only concerned with the manner in which those decisions have been taken. The extent of duty to act fairly varies from case to case on the following grounds:

  1. Illegality
  2. Irrationality
  3. Procedural impropriety
  4. Proportionality

Provisions of Judicial Review in the Constitution

The Constitution framers of India provide judicial review, on the foundation of the America’s Constitution. The controls of the parliament under the Indian Constitution are divided between Centre and States. The Supreme Court has the power to review the legislation, which were endorsed by the assemblies of states or by the parliament. The judicial review has been decided by the Indian Constitution to the state’s higher courts and to the Supreme Court of India.

Article 32 of the Indian Constitution provide power of judicial review to the Supreme Court. It gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’. The Supreme Court is given the authority to issue directions or orders for the execution of any of the rights bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental Rights’.

It says:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by part III is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

Thus, Article 32 is reserved exclusively for the enforcement of Fundamental rights and no question other than one relating to fundamental rights can be considered under Article 32 which means that unless there has been an infringement of fundamental rights, the aggrieved has no right to complain to the Supreme Court.

Article 136 of the  provide the power to the Supreme Court to grant special leave to appeal. The Supreme Court, on its pleasure can award special leave to appeal after any order or sentence, decree, determination and judgment of any matter or cause, which has been made by any tribunal or court in the domain of India. In the least tribunal or judiciary established under any legislation in reverence to the Armed Forces, Article 136 of the Constitution is applicable to any order or sentence, determination, and judgment.

Article 226 confers on high court the power to issue writs.

It says:

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32.

 

The jurisdiction conferred by Article 226 is wider, for a high court may issue writs not only for the enforcement of fundamental rights but also for any other purpose. Whereas Article 32 confines it to fundamental rights only.

Article 226 confers very wide powers in the matter of issuing writs on the high court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate and suitable relief elsewhere, it can refuse to exercise its jurisdiction.

Article 227 of the Constitution confers on High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to armed forces. It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even by exercised suo motu.

Difference between Article 226 and 227 of the Constitution of India.

In Surya Devi Rai Vs Ram Chander Rai, the Hon’ble Supreme Court had broadly differentiated Article 226 and 227 as follows:-

JURISDICTION

The High Court under Article 226 of Constitution of India exercises original jurisdiction. Thus, the High Court while exercising its power under Article 226 has original Jurisdiction, whereas, under Article 227 of The Constitution of India, the High court Exercises Supervisory jurisdiction which is akin to revisional or corrective jurisdiction.

WRIT REMEDY

Under Article 226, the High court while exercising its original jurisdiction may simply annul or quash the proceedings. Whereas, under Article 227 the High Court while exercising its Supervisory jurisdiction will not only quash or set aside the impugned proceedings but will also make such directions as the facts and circumstances of the case may want, may be by the way of guiding the inferior Court or Tribunal.

RELIEF

Article 226 is capable of being exercised on a prayer made on behalf of the aggrieved party. Whereas, The supervisory jurisdiction under Article 227 is capable of being exercised suo motu as well.

 

Writs

Habeas Corpus: The writ of Habeas Corpus means “let us have the body”. It is issued by the Court to effect the release of a person who has been detained illegally. Under this writ, the Court issue order to the concerned authority or person to produce the detained person before the Court in order to let the Court known on what ground the concerned person has been detained and to set him free if there is no legal justification for detention.

Writ of Habeas Corpus may be filed by any person on behalf of the person detained or by the illegally detained person himself.

Mandamus: The writ of mandamus means command is addressed to a public authority to command him to do a duty which he is supposed to do but he has not performed.

Prohibition: the writ of Prohibition means “to forbid” and popularly known as ‘Stay Order’. This writ is issued when a lower court or a body tries to exceed the limits or powers vested in it. It is issued by any High Court or the Supreme Court to any inferior court, or quasi judicial body. This writ can be issued only against judicial and quasi-judicial body authorities and not against administrative authorities.

Certiorari: it is also issued against inferior Courts by the Supreme Court or the High Courts, if the lower Courts have violated their designated jurisdiction and pronounced the judgement on the case.

The writ Prohibition and Certiorari have some difference:

 

  1. The writ of prohibition is available during the pendency of proceedings, whereas the writ of certiorari can be resorted only after the order or decision has been announced.
  2. Prohibition can be issued only against judicial and quasi judicial authorities whereas Certiorari can be issued even against administrative authorities affecting rights of individuals.

Grounds for the issue of Certiorari to a judicial or quasi judicial body:

  1. In lack of jurisdiction
  2. Excess of jurisdiction
  3. In abuse of jurisdiction
  4. Violation of the principles of natural justice
  5. Error of law apparent on the face of the record
  6. Decision obtained by fraud.

In A.K Kraipak v. UOI, the writ of certiorari was issued to quash the action of a selection board, on the ground of personal bias.

Quo-Warranto: The writ of quo warranto means “what is your authority”. It is issued against a person occupying a public office which he is not entitled to. The purpose of the writ is to prevent the unlawful occupation of a public office by persons who are not eligible to hold that office.

Conditions for the grant of Quo Warranto:

  1. Office must be a public office, that is, a statutory or constitutional office.
  2. The offence must be substantive in nature. A substantive office means permanent in character.
  3. The person must be in actual possession of the office.
  4. The office must be held in contravention of law meaning thereby that a clear violation of law in the appointment of a person to the public office.

Difference between Review and Appeal

Review is mostly concerned with the correctness of the legal matters of a decision whereas an appeal is mostly concerned with the correctness of the decision itself.

Review is filled in the same court whereas appeal is filed at a higher court.

Appeal is a statutory right of the individual whereas review is a discretionary right of the court.

Procedural irregularity, impropriety, irrationality, ad illegality form the basis of a review whereas thee can be grounds of dissatisfaction or disappointment for filing an appeal.

An appeal is request to change or modify the decision or verdict whereas review is a request to look into the legality of the rulling.

Conclusion

The growth of judicial review is the unavoidable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial review of every important governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary.

The Judges have a duty to perform, which is even more obligatory and essential to keep the judicial ship afloat on even keel. It should avoid making any ad hoc decision without the foundation of a juristic principle, particularly, when the decision appears to break new grounds. The judgments must be logical, precise, sober, and clear, rendered with restriction in speech avoiding saying more than that, which is necessary in the case.

Written by:
Shefali Gupta AMITY LAW SCHOOL,NOIDAShefali Gupta
Shefali Gupta is a final year law student at Amity Law School, Noida having interest in corporate laws.
Pukhraj Malhotra
Pukhraj Malhotra
Pukhraj Malhotra is a final year law student at Amity Law School, Noida having interest in corporate laws.

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