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Chapter - 4

JUDICIAL ACTIVISM: CONCEPT AND HISTORICAL

BACKGROUND. JUDICIAL REVIEW

CONCEPT OF JUDICIAL ACTIVISM

Judicial activism has recently become a source of heated debate, especially in

the light of hyper activity witnessed in the judicial branch of government

throughout the states with federal structures. Over the past six decades, the

term judicial activism has also become an immensely popular tool for

criticizing judge’s behaviour. Moreover, through various controversial

decisions, judges of the Supreme Court and the High Courts of India, Justices

of the United States as well as other countries having federal set-up, have once

again triggered off the debate on judicial activism that has always generated a

lot of heat. Since a very long time, there has been a lively debate on the role of

judiciary in the governance of states. Judicial activism has emerged as the most

acceptable term to denote judicial intervention beyond its boundaries around

which such debates revolve. Despite the term’s prominence, due to one reason

or the other, the controversy about its definition has not been resolved and its

universally acceptable meaning still remains elusive. Some politicians would

like to call it as ‘Judicial Anarchy’, ‘Judicial Over-activism’ and ‘Judicial

Despotism’.1 This chapter is an attempt to bring out the various connotations of

judicial activism and to find out its effects on today’s changing society.

The term ‘judicial activism’ is generally used by scholars of social sciences to

describe a tendency by judges to consider outcomes, attitudinal preferences,

and other public policy issues in interpreting applicable existing laws. One of

the meanings of judicial activism is that the function of the court is not merely

to interpret the law but to make it by imaginatively sharing the passion of the

constitution for social justice.2 Therefore, judicial activism is formally

considered the opposite of judicial restraint, but it is also used pejoratively to

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describe activist judges who endorse a particular agenda. Although, alleged

activism may occur in many ways, the most debated cases involve courts

exercising judicial review to strike down statutes as unconstitutional. Views

about constitutional interpretation abound, ranging from strict constructionism

to the living constitution, and therefore, in practice, any controversial decision

striking down a statute may be labelled by the decision’s critics as judicial

activism.

Legislating from the bench is also a good way to describe judicial activism,

when judges dictate policy guidelines to other branches of government.3

Judicial activism occurs when a judge or justice decides an issue based on

personal or political ideology or pressure from special interests instead of

abiding by the constitution or previous precedents. The United States has a

system of checks and balances to ensure that one branch of the federal

government will not become too powerful. Under the separation of powers

doctrine, only Congress has the power to legislate. Judicial activism violates

that separation of powers by effectively creating new law that often affects the

entire nation instead of settling the particular case at hand. It means that the

judiciary, which is appointed rather than elected and held accountable by the

people, does not have the authority to legislate. In other words, judicial

activism means a justice oversteps the jurisdiction of the court or creates a

ruling that radically diverges from common law, jurisprudence, and the intent

of the constitution. Judicial activism may also be a case of judges or justices

over-ruling existing law, or creating legal doctrines without precedent or

support which undermine or recreate policies, usually social policies.

DEFINITIONS:

Of late, the term judicial activism has become more popular, but its meaning

and definitions have become correspondingly and increasingly, ambiguous

because at present judicial activism is defined in a number of disparate, even

contradictory ways; scholars and judges recognize this problem, yet persist in

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speaking about the concept without defining it. Thus, the problem continues

unabated: people talk past one another, using the same language to convey very

different concepts.4 In order to comprehend the phenomenon, it will be

convenient to discuss some lexicon as well as scholarly definitions of the

concept. Merriam-Webster's Dictionary of Law defines judicial activism as

“the practice in the judiciary of protecting or expanding individual rights

through decisions that depart from established precedents or, are independent

of or, in opposition to supposed constitutional or legislative intent.”5 The term

judicial activism has also been defined in many ways by legal scholars. It

would be pertinent here to refer to many legal sources in order to reach a

considered conclusion. In the Harper Collins Dictionary of American

Government and Politics, the term judicial activism has been defined as “the

making of new public policies through the decisions of judges.” Black’s Law

Dictionary defines it as “a philosophy of judicial decision making whereby the

judges allow their personal views about public policy, among other factors, to

guide their decisions.”6

While in the US, both the views are prevalent, in the developing world, the

view commonly held is that the court should function as an instrument to

achieve desired social results. It is widely believed that the judges should not

hesitate to go beyond their traditional role as interpreters of the constitution and

laws in order to assume a role as independent trustees on behalf of society. The

reason for widespread acceptance of this view is that in these countries the

executive and legislature have failed to ensure good governance and provide a

fair deal to their citizens.7

In the developing countries like India, it is generally believed that the concept

of judicial activism contributed to uphold the rule of law and consequently, it

has a positive impact on governance. In some of the Indian experiences

judiciary has been able to keep up the standards of good governance in the face

of corruption, failed political processes, incompetent political elite and lack of

respect for human rights. Some scholars in India have defined it in the context

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of Public Interest Litigation (PIL) or Social Action Litigation (SAL) or Private

Attorneys of Law (PAL). For example, K.L. Bhatia has outlined the

imperatives of judicial activism in the context of widening the perspectives of

locus standi as follows: Judicial activism, in India, is a movement from

personal injury to public concern by relaxing, expanding, and broadening the

concept of locus standi. Judicial activism is correlated, with a progressive

movement from ‘personal injury standing’ to ‘public concern standing’ to

allowing access to justice to pro bono publico, that is, public spirited

individuals, groups and organizations, on behalf of ‘lowly and lost’ or

‘underprivileged’ or ‘underdogs’ or ‘littlemen’ who, on account of constraints

of money, ignorance, illiteracy, have been bearing the pains of excesses

without access to justice.8

Although it is true that in the eyes of some critics the Indian judiciary is also

acting as a ‘third chamber’ and a ‘super executive’ yet, some scholars deny the

very existence of the term.9 They are of the view that the judiciary is doing its

primary duty and nothing more. J. Kuldeep Singh, former judge of Supreme

Court of India, blazed this new trend.10 Some other ‘legal-eagles’ steered the

same course and referred to judicial activism as a ‘myth’ or as a ‘farcical

term.’11–12 However, ‘judicial activism’ which has been a uniquely American

development has been defined in Indian context, in many ways. In the words of

Surya Deva, “Judicial Activism refers to the phenomenon of the courts dealing

with those issues which they have traditionally not touched or which were not

in the contemplation of the founding fathers. It is a state of mind, the origin of

which lies in the ‘inactivism’ of other two wings of the government.”13 Thus,

Surya Deva emphasized the ‘inactivism’ on the part of the legislature and the

executive. It is because of the violation of people’s rights that judiciary has

come to their rescue. On the one hand, it has to ensure that any law passed by

the legislature is in conformity with the provisions of the constitution and on

the other hand, it has to assure the citizens, the effective implementation of

these laws without executive’s move beyond its powers. The aforesaid

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phenomenon given by Surya Deva is encouraged by Ashok Kumar Johri as he

writes: Judicial activism, in fact, is not distinctly separate concept from usual

judicial activities. The expression ‘activism’, lexically as well as in ordinary

parlance, means ‘being active’, ‘doing things with decision’ and the expression

‘activist’ should mean ‘one who favours intensified activities’. In this sense

every judge is, or at least, should be an activist, as Justice Krishna Iyer

observed, “Every judge is an activist either on the forward gear or the reverse.”

Thus, A.K. Johri preferred sweeping generalization while referring to every

judge as an ‘activist’.14

However, from this observation, we can easily make out that activism, or

otherwise, depends on the judge’s personal subjectivity. Very recently, Justice

Gulab Chand Gupta has enunciated judicial activism as “legislature, while

enacting a law, cannot visualize all situations arising in future and needing the

support of law. New situations generally and usually develop and the law has to

be so interpreted and applied to solve problems arising out of such situations.

In this process, the judicial creativity or craftsmanship is utilized to fill in the

gaps between the law and the law as it ought to be. In this process it is the

ability of ‘proper perception’ and commitment to proper social values. This

judicial creativity is called judicial activism.”15

Thus, it affirmed the opinion of Justice V.G. Palshikar who has asserted that

judicial activism means “an active interpretation of existing legislation by a

judge, made with a view to enhance the utility of legislation for social

betterment.”16 Similarly, Justice J.S. Verma has been more emphatic in laying

down the exact norms of sufficient activist criterion. The learned judge has

remarked that judicial activism is required only when there is inertia in others.

Proper judicial activism is that which ensures proper functioning of all other

organs and the best kind of judicial activism is that which brings about results

with the least judicial intervention. If everyone else is working, we don’t have

to step in.17

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In this way, by stretching the letter of the law a little and acting according to

the spirit behind it, the judiciary has intervened in cases where there is blatant

misuse of discretion of executive authority or a lackadaisical attitude towards

booking the corrupt and other anti-social elements in society. Therefore, some

scholars went to the extent of saying that the time has now come when courts

must become the courts for the poor and struggling masses of the country. They

must shed their character as upholders of the established order and the status

quo. They must be sensitized to the need of distributing justice to the large

masses of people to whom it has been denied by a cruel and heartless society

for generations.18 In support of this assertion, Lord C. J. Hewart has asserted,

“It is of fundamental importance that justice should not only be done, but

should manifestly and undoubtedly be seen to be done.”19 Similarly another

American Judge, Mr Bensan said once, “Nothing reckless more in human heart

than broadening sense of injustice. Unless we can put up with, but injustice

makes it want to pull things down.”20

In a democratic society, most probably there are two approaches to any

judicial role, performance and perception. The judiciary can adopt a pro-active

approach or it can act within the boundaries of self-restraint. Before peeling

away the layers of the development of judicial activism, we should peep into

the historical background of the phenomenon which caused the emergence of a

pro-active judiciary. As students of social science, we find that the doctrine of

judicial activism in the Indian democracy is worth a study compared to that in

vogue in the U.S.A. and it will become clear after analysing the historical

background of the concept.

HISTORICAL SKETCH OF THE CONCEPT

The idea of judicial activism has been around far longer than the term itself.

Before the twentieth century, legal scholars squared off over the concept of

judicial legislation, that is, judges making positive law. Where Blackstone

favoured judicial legislation as the strongest characteristic of the common law,

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Bentham regarded this as a usurpation of the legislative function and a charade

or ‘miserable sophistry.’ Bentham, in turn, taught John Austin, who rejected

Bentham's view and defended a form of judicial legislation in his famous

lectures on jurisprudence. However, in the first half of the twentieth century,

a flood of scholarship discussed the merits of judicial legislation, and

prominent scholars took positions on either side of the debate.21 Thus, the seeds

of judicial activism were sown by English concepts like ‘equity’ and ‘natural

rights’ and on the American soil, it blossomed into the concept of ‘judicial

review.’

Criticism of constitutional judicial legislation was particularly vehement during

the Lochner era. Critics assailed the court’s preference for business interests as

it repeatedly struck down social legislation in the name of substantive ‘Due

Process.’ While some modem scholars consider Lochner and its progeny

virtually synonymous with ‘judicial activism’, the term is conspicuously absent

from contemporaneous criticism. The New Deal and the ‘Revolution of 1937’

ushered in another spate of critical commentary, but again, contemporaneous

literature does not mention ‘judicial activism’ by term. However, in its early

days, the term ‘judicial activist’ sometimes had a positive connotation, much

more akin to ‘civil rights activist’ than ‘judge misusing authority.’ Years later,

the justices agreed that the New Deal was on firm constitutional ground, the

term finally surfaced in legal discourse.22

First Recorded Use

The first use of the term judicial activism to attract substantial attention from

the public occurred in ‘Fortune’, a popular magazine, in an article meant for

general addressees written by a non-lawyer, Arthur Schlesinger Jr., in January

1947. Schlesinger's article profiled all nine Supreme Court justices on the

Court at that time and explained the alliances and divisions among them. The

article characterized Justices Black, Douglas, Murphy, and Rutlege as the

‘judicial activists’ and Justices Frankfurter, Jackson, and Burton as the

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‘Champions of Self Restraint.’ Justice Reed and Chief Justice Vinson

comprised a middle group.23

By 1947, none of the justices in the American court openly questioned the

constitutionality of the New Deal. Instead, the court split over the interpretation

of legislation and ‘the proper functions of the judiciary in a democracy.’

Schlesinger describes the competing approaches. This conflict may be

described in several ways. The Black-Douglas group believes that the Supreme

Court can play an affirmative role in promoting the social welfare; the

Frankfurter-Jackson group advocates a policy of judicial self-restraint. One

group is more concerned with the employment of the judicial power for their

own conception of the social good; the other with expanding the range of

allowable judgment for legislatures, even if it means upholding conclusions

they privately condemn. One group regards the Court as an instrument to

achieve desired social results; the second as an instrument to permit the other

branches of government to achieve the results the people want, for better or

worse. In brief, the Black-Douglas wing appears to be more concerned with

settling particular cases in accordance with their own social preconceptions; the

Frankfurter-Jackson wing with preserving the judiciary in its established but

limited place in the American system.24

The first landmark judgement in this regard was the case of Marbury v.

Madison that paved the way for judicial opposition to the legislative

omnipotence. In this case, for the first time the judiciary took an active step and

took a step above the legislative actions. Marbury was appointed judge under

the Judiciary Act of 1789 by the U.S. Federal Government. Though the warrant

of appointment was signed, it could not be delivered. Marbury brought an

action for issue of a writ of mandamus. By then, Marshall became the Chief

Justice of the Supreme Court having been appointed by the outgoing President,

who lost the election. Justice Marshall faced the imminent prospect of the

Government not obeying the judicial fiat if the claim of Marbury was to be

upheld. In a rare display of judicial statesmanship asserting the power of the

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Court to review the actions of the Congress and the executive, chief justice

Marshall declined the relief on the ground that Section 13 of the Judiciary Act

of 1789, which was the foundation for the claim made by Marbury, was

unconstitutional since it conferred in violation of the American Constitution,

original jurisdiction on the Supreme Court to issue writs of mandamus. He

observed that the Constitution was the fundamental and paramount law of the

nation and it is for the court to say what the law is. He concluded that the

particular phraseology of the Constitution of the United States confirms and

strengthens the principle supposed to be essential to all written Constitutions.

That a law repugnant to the Constitution is void and that the courts as well as

other departments are bound by that instrument. If there was conflict between a

law made by the Congress and the provisions in the Constitution, it was the

duty of the court to enforce the Constitution and ignore the law. This judgment

received lots of criticism from different quarters, but judicial review was here,

and it was here to stay.

Amendment to the constitution comes about for a reason - to overrule a

Supreme Court decision, to force a societal change, or to revise the details of

the constitution.25 The first amendment to the U.S. Constitution was written

because the federal government under that proposed Constitution wielded too

much power over the public. At America’s inception, citizens demanded a

guarantee of their basic freedoms like protection of freedom of speech, press,

religion, assembly and petition. The U.S. Constitution was signed on Sept. 17,

1787, did not contain the Bill of Rights. However, after vigorous debate, the

Bill of Rights was adopted. The first freedoms guaranteed in this historic

document were written by James Madison that is known as the First

Amendment; The Bill of Rights.26

Marbury v. Madison (1803)

In the Judiciary Act of 1789, Congress gave the Supreme Court the authority to

issue certain judicial writs. The Constitution did not give the Court this power.

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Because the Constitution is the supreme law of the land, the Court held that any

contradictory congressional Act is without force. The ability of federal courts

to declare legislative and executive actions unconstitutional is known as

judicial review.

John Adams’ presidency appointed political friends and allies to the positions

of judgeships. It turned out to be the last gasp of the Federalist Party, done just

before Thomas Jefferson took office. Two important appointments were, of

John Marshall to the position of Chief Justice of the Supreme Court and,

William Marbury to a judgeship. When the new administration did not deliver

the commission, Marbury sued James Madison who was Jefferson's Secretary

of State. At that time the Secretary of State was charged with certain domestic

duties as well as with conducting foreign affairs. Chief Justice John Marshall

held that, although Marbury was entitled to the commission, the statute that

was the basis of the particular remedy sought was unconstitutional because it

gave the Supreme Court authority that was implicitly denied it by Article 3 of

the U.S. Constitution. The decision was the first by the Supreme Court to

declare unconstitutional and void, an Act passed by Congress that the Court

considered was in violation of the Constitution. The decision established the

doctrine of judicial review, which recognizes the authority of courts to declare

statutes unconstitutional.27 This case was the first instance in which a law

passed by Congress was declared unconstitutional. The decision greatly

expanded the power of the Court by establishing its right to overturn acts of

Congress, a power not explicitly granted by the Constitution.

In the initial stages, only in respect of substantive laws, the doctrine of due

process was applied but later the procedural laws were also brought within its

purview. Between 1789 and 1860, only 2 Acts of Congress and some 60 state

enactments had been declared void by the Court and from1898 to 1937, the

American Supreme Court declared 50 Congressional enactments and 400 State

laws as unconstitutional.28

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Power of judicial review got in heritage, the American judiciary commenced

the modern concept of judicial activism in 1954 in the case of Brown v. Board

of Education where the Supreme Court of America struck down the laws of

segregation of Negroes especially in the field of public education. By a series

of judgements after Brown v. Board of Education, the court ruled out all the

laws which legally segregated the Negroes in almost all the fields of day to day

life. The court not only abolished the laws, which did not confirm to the desired

constitutional norms but also encompassed several rights which were not

clearly mentioned in the Constitution. Slowly the sphere of standing got

enlarged and the Court gave a liberalized interpretation of the rule of locus

standi in several cases.29 Thus, there is not a clear move towards expansion of

rights, which has made a profound impact on the everyday changing face of

judicial activism.

McCulloch v. Maryland (1819)

Maryland imposed a tax on the Bank of the United States and questioned the

federal government’s ability to grant charters without explicit constitutional

sanction. The Supreme Court held that the tax unconstitutionally interfered

with federal supremacy and ruled that the Constitution gives the federal

government certain implied powers.

This case decided in 1819 by the U.S. Supreme Court, dealing specifically with

the constitutionality of a Congress-chartered corporation, and more generally

with the dispersion of power between state and federal governments. After the

First Bank of the United States (1791) had folded in 1811 due to a lack of

congressional support, inflation in the years following the War of 1812

compelled Congress to establish (1816) a new national bank. The Second Bank

of the United States was authorized by Congress to help control the unregulated

issuance of currency by state banks. Many continued to oppose the bank’s

constitutionality, and Maryland set an example by imposing a tax on all banks

not chartered by the state. When the U.S. branch bank in Baltimore refused to

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pay taxes, Maryland brought suit for collection from the bank. Chief Justice

John Marshall, who wrote the uncontested opinion, gave trenchant expression

to the doctrine of implied powers: “Let the end be legitimate, let it be within

the scope of the constitution, and all means which are appropriate, which are

plainly adapted to that end, which are not prohibited, but consist with the letter

and spirit of the constitution, are constitutional.”30 The chartering of a bank,

according to the Court, was a power implied from the power over federal fiscal

operations. Because the state cannot impede constitutional federal laws, the tax

was voted unconstitutional. One of the most important decisions in the history

of the U.S. Supreme Court, Marshall’s opinion called for a broad interpretation

of the powers of the federal government. The case became the legal

cornerstone of subsequent expansions of federal power.

Ultimately, the case upheld the right of Congress to create a Bank of the United

States, ruling that it was a power implied but not enumerated by the

constitution. The case is significant because it advanced the doctrine of implied

powers, or a loose construction of the constitution. The Court, Chief Justice

John Marshall wrote, would sanction laws reflecting “the letter and spirit” of

the Constitution.31

The experience of judicial activism in India can be traced back from 1893,

when Justice Mehmood of the Allahabad High Court delivered a dissenting

judgement which sowed the seeds of judicial activism in India. It was a case of

an under trial who could not afford to engage a lawyer. So the question was

whether the court could decide his case by merely looking at his papers. Justice

Mehmood held that the pre-condition of the case being ‘heard’ (as opposed to

merely being read) would be fulfilled only when somebody speaks.32 So he

gave the widest possible interpretation of the relevant law and laid the

foundation stone of the judicial activism in India. However, ‘Judicial

Activism’, as it is used in the modern parlance, originated in India later on. It

was due to the executive abuses or interference in the due course of legal

proceedings that judiciary had to intervene.

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With the attainment of independence, there have been prevailing some sorts of

hostile relations among the three principal branches of the government in India.

Moreover, fulfilling a minimum administrative responsibility, the bureaucracy

has become a device for furthering personal rather than public interest.

Exploitation and injustice are therefore built into the present political system

and one cannot expect the rules or the executive to correct the daily injustice

faced by a majority of common population.33

There have been a number of problems and evils emerging in the socio-

political infrastructure of the country with mushrooming growth of illegal

activities that affected the major branches of the government.34 Consequently,

the commoners have to bear the brunt of all the aforesaid issues and evils. This

exploitative and oppressive environ raised some urgent demands which could

not wait for Parliament to attend to the issue. Judges were, therefore, less

inclined to leave law reform to Parliament.35 Justice Krishna Iyer explained this

climax in a judgement, “Though legislation was the best solution, but when

lawmakers take far too long, for social patience to suffer. Courts have to make

do with interpretation and carve on wood and sculpt on stone without waiting

for the distant marble.”36 Henceforth, the doctrine of judicial activism was

introduced with the historic instance of Mumbai Kamgar Sabha v. Abdul Bhai

without its nomenclature.37 It was in Maneka Gandhi’s case where the apex

court, even against the intention of the framers of the Constitution, substituted

the ‘due process clause’ in Article 21 instead of procedure established by law.

Deprecating absolutism of the executive and its interference with individual

freedom Justice Bhagwati deliberately included the clauses.38 Likewise, in

some other cases judicial activism or its blunt variant, PIL kept on proving their

ability to expose many scams, to provide remedial justice to the citizens and to

enhance their rights.

In a nutshell, although the concept of judicial activism is a highly debated

phenomenon yet, it cannot be denied that it has done a lot to ameliorate the

conditions of the masses in the country. It has set right a number of wrongs

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committed by the states as well as by individuals.39 The common people are

very often denied the protection of law due to delayed functioning of the

courts, also called judicial inertia or judicial tardiness.40 Judicial activism has

started the process to remove these occasional aberrations too. This can be

furthered only by honest and forthright judicial activism and not by running

down the judiciary in the eyes of the public. The greatest asset and the

strongest weapon in the armoury of the judiciary is the confidence it commands

and the faith it inspires in the minds of the people in its capacity to do even-

handed justice and keep the scales in balance in any dispute.

JUDICIAL REVIEW

Judicial review is the doctrine under which a country’s courts examine the

actions of the legislative, executive and administrative branches of government

to ensure that their actions conform to the provisions of the constitution. It is

expected that in every civilized society, all courts having the power of judicial

review must annul the acts of other branches of government when they find

them incompatible with the provisions of the Constitution. In other words, if

the court comes across actions that do not conform to the sacred document are

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.41 The principle of judicial review is used in

the Commonwealth countries as part of the working machinery of governments

of countries such as Canada, Australia and the Union of South Africa.42 The

constitutional practice of judicial review is not only prevalent in

Commonwealth nations but also in other countries like Japan Germany, Italy,

and the United States. Judicial review is an example of the operation of

separation of powers in a modern governmental system where the judiciary is

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one of the three branches of government. This principle is interpreted

differently in various jurisdictions, which also have differing views on the

specific hierarchy of governmental norms. As a result, the procedure and scope

of judicial review differs from country to country and state to state.

Judicial review can be explained by two distinct but convergent legal systems

i.e. civil law and common law, and also by two distinct theories on democracy

and how a government should be set up i.e. the ideas of legislative supremacy

and separation of powers. First, two distinct legal systems, civil law and

common law have different views about judicial review. Though civil law has

its roots in Corpus Juris Civilis, the name Corpus Juris Civilis occurred for the

first time in 1583 as the title of a complete edition of the Justinian code by

Dionysius Godofredus.43 Other historical events have had profound effects on

its development over the last fifteen hundred years. Legislative supremacy or

parliamentary sovereignty was one of the basic ideas underlying the

Napoleonic code of 1804. Secondly, the idea of legislative supremacy is that

the legislative body should be superior and consequently more powerful than

other branches of government. The inequality of powers among the three

branches of government is justified for the legislative branch because it is the

only representative body the people who choose it through popular elections.

Therefore, in such a system, judicial branch is prohibited from challenging

laws enacted by the legislative branch. Consequently, the lack of judicial

review denies the judicial branch a necessary check on the powers of the

legislative branch. No one would deny the fact that under such a scenario, there

is not a check on the legislative branch which creates an unfair advantage in the

state and federal government for law makers.

An overview of controversial and exemplary court cases which sowed the

seeds of judicial review are being discussed below:

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Brown v. Board of Education (1954)

Nine black students were allowed into a white school, previously segregated.

This was the landmark case in the battle for black civil rights. The judicial

activism displayed by the Supreme Court led to an end to segregation, social

equality for blacks and allowed them to reach respected positions in the

American society.

Brown v. Board of Education of Topeka, Kans., case decided by the U.S.

Supreme Court in 1954. Linda Brown was denied admission to her local

elementary school in Topeka because she was black. When, combined with

several other cases, her suit reached the Supreme Court, that body, in an

opinion by recently appointed Chief Justice Earl Warren, broke with long

tradition and unanimously overruled the “separate but equal” doctrine of Plessy

v. Ferguson, holding for the first time that de jure (legally imposed)

segregation in all areas of public life violated the principle of equal protection

under the law guaranteed by the Fourteenth Amendment to the U.S.

Constitution. Responding to legal and sociological arguments presented by

NAACP (The National Association for the Advancement of Colored People)

lawyers led by Thurgood Marshall, who successfully argued the case, the court

stressed that the ‘badge of inferiority’ stamped on minority children by

segregation hindered their full development no matter how ‘equal’ physical

facilities might be. After hearing further arguments on implementation, the

court declared in 1955 that schools must be desegregated ‘with all deliberate

speed.’44 Restricted in application to de jure segregation, the Brown rule was

applied mainly to Southern school systems. After strong resistance, which led

to such incidents as the 1957, Little Rock, Ark., School Crisis integration

spread slowly across the South, under court orders and the threat of loss of

federal funds for noncompliance. The Brown decision gave tremendous

impetus to the civil-rights movement of the 1950s and 1960s, and hastened

integration in public facilities and accommodations. Segregation maintained by

more subtle and intractable forces, however, has remained an important

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element in American society. De facto school segregation, caused by

residential housing patterns and various other conditions rather than by law, has

been attacked by the abusing of students and other mechanisms.45

Cooper v. Aaron (1958)

Several government officials in southern states, including the governor and

legislature of Alabama, refused to follow the Supreme Court’s Brown v. Board

of Education decision. They argued that the states could nullify federal court

decisions if they felt that the federal courts were violating the constitution. The

court unanimously rejected this argument and held that only the federal courts

can decide when the constitution is violated.

After the Brown v. Board of Education decision was handed down from the

United States Supreme Court in 1954, the Little Rock, Arkansas School

District adopted a plan to desegregate public schools based on a two and one-

half year plan. The plan was to implement desegregation beginning in 1957 at

the high school level, followed later by the junior high and elementary levels.

In November 1956, an amendment was made to the Arkansas State

Constitution that commanded the Arkansas General Assembly to oppose

desegregation. The amendment stated that desegregation was unconstitutional

and established a law in Arkansas stating that children were relieved from

compulsory attendance at racially mixed schools. Still, the school board

continued plans for desegregation and scheduled nine African American

students for admission to Central High School beginning on September 3,

1957.

On September 2, 1957, the Governor of Arkansas dispatched units of the

Arkansas National Guard to the Central High School grounds to make the

school inaccessible to African American students. School authorities had not

requested that such actions occur, but rather had discussed potential problems

of violence with the mayor and chief of police of Little Rock, who were

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prepared to deal with the potential violence. This action by the Governor

prompted the school board to request African American students not to attend

the school until the problem was resolved. On September 3, 1957, the school

board petitioned the District Court for an alternate course of action to the

original desegregation plan to which the court replied the plan should remain

intact as originally set out.

The following day, the African American students attempted to enter the school

building and were again prevented from doing so by the National Guard troops.

This continued for three weeks. The school board petitioned the District Court

for an order that would temporarily suspend the desegregation program. Such

order was denied on September 7. The District Court requested the United

States Attorney for the Eastern District of Arkansas to begin an immediate

investigation to correct the interference with the court order to end segregation.

Following investigation, the District Court found that the Governor had

disrupted the school board’s plan by using National Guard troops and granted a

preliminary injunction on September 20, 1957, preventing the Governor and

National Guard from interfering with the orders of the court in carrying out the

desegregation plan.

Beginning September 23, 1957, the African American students entered the

school, but later had to be removed by the Little Rock police due to

demonstrations against them. On September 25, 1957, the President of the

United States sent federal troops to Central High School to allow the admission

of the African American students. Eight of the African American students

remained in the school for the entire school year.

The school board and Superintendent of Schools filed a petition in District

Court on February 20, 1958, requesting to postpone their program for

desegregation. The reason for their petition was that public hostility was

disrupting the possibility for a sound educational program at a racially

segregated school. They believed the hostility was the direct result of the

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actions of the Governor and Legislature. The District Court granted the relief

requested by the school board, stating that the past year in the desegregated

school had been one of chaos and turmoil in which the African American

students endured violence against them and their property, created high tension

among teachers and parents, and had an adverse effect upon the educational

program. In addition, the school had suffered financially.46

The African American students filed an appeal to the Court of Appeals and a

petition for certiorari to the United States Supreme Court. The Court of

Appeals reversed the decision of the District Court. The petition for certiorari

was granted, and the Supreme Court reviewed the facts and affirmed the

decision of the Court of Appeals. The Supreme Court determined that the

school board had demonstrated good faith in their attempts to carry out their

plan of desegregation, and that the conditions at Central High School had

caused the school to suffer. In making its decision, the Supreme Court applied

the principle of the Fourteenth Amendment that states that no state shall deny

any person within its jurisdiction the equal protection of the laws, thereby

enforcing and reinstating the school board’s plan for desegregation in

compliance with the Brown v. Board of Education decision.47

The Origin of Judicial Review

It is a fact that judicial review is not mentioned in the US Constitution, nor was

it discussed at the Constitutional Convention in 1787.48 It has, however, been

often contented that the practice of judicial review 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 legislations 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

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meaning as well as the meaning of any particular act proceeding from the

legislative body.”49

The principle of judicial review was further elaborated and justified in one of

the most famous US Supreme Court decisions, Marbury v. Madison, when

parts 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.’50

There is no denying that the supremacy of the constitution over legislative Acts

must be safeguarded at all costs to give effect to the pre-requisite of

constitutional supremacy in a federal set-up, especially for adjudication

regarding constitutionality of legislations. In practice, however, such

arrangements pose complex problems. One of them being that those appointed

to the courts are often selected for political reasons, and many often do not

show much reluctance to import their personal, political preferences into their

judicial decisions and rulings. This, however, would have lesser effect if the

constitution is not a brief, ambiguous and often vague in its provisions that may

be subjected to many interpretations and profound disagreements.

Scholars have also a cause for concern among, as some observe, that judicial

review allows unelected judges, appointed for life, to become the ultimate

arbiters of public policy-making, able to defy even the wishes of the majority,

and thereby violate basic principles of liberal democracy. In response to such

complaints it can be argued that the federal courts are not immune to the will of

the people. The appointment process, for instance, allows elected officials to

exercise influence on the judiciary; the President in USA nominates federal

judges subject to the advice and consent of the Senate for their appointments.51

Again Hamilton noted in Federalist Paper No. 78, checks and balances

incorporated in the Constitution ensure that the courts constitute the ‘least

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dangerous’ branch of the government. Thus, the scope of the appellate

jurisdiction of the Supreme Court is subject to the will of Congress and, while

the latter possesses the power of the purse and the executive, the power of the

sword, the Court has no means of enforcing its decisions. It is also the case that

the Supreme Court has shown itself to be capable of reversing its earlier

decisions that no longer meet with popular support. It is also possible to

impeach judges, or to overturn their decisions by the process of constitutional

amendment.52 Thus, judicial review is a key feature of the separation of powers

doctrine, as it has developed in the United States. Yet, there is a tension

between judicial review and representative democracy, a tension captured well

by Abraham Lincoln in his First Inaugural Address, “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 people will have

ceased to be their own rulers, having to that extent, practically resigned to their

government into the hands of that eminent tribunal.”53 The Supreme Court of

the USA overruled this proclamation, and declared its own powers, “If it

appears that an act of Congress is not pursuant to and within the limits of the

power assigned to the Federal Government, it is the duty of the courts of the

United States to declare it unconstitutional and void.”54

Judicial Review of Administrative Acts

In a modern legal system, it is the power of a court to review the actions of

government (public) bodies in terms of their legality or constitutionality i.e.

individual decisions of public bodies, such as decisions to grant a subsidy or to

withdraw a residence permit, etc. In most of the systems, this also includes

review of secondary legislation i.e. legally enforceable rules of general

applicability adopted by administrative bodies. Some countries, most notably

France and Germany, have implemented a system of administrative courts, that

are charged exclusively with deciding on disputes between the members of the

public and the administration. In other countries, including the United States,

United Kingdom and Netherlands, judicial review is carried out by regular civil

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courts, although it may be delegated to specialized panels within these courts,

such as the Administrative Court within the High Court of England and

Wales.55

The United States employs a mixed system in which some administrative

decisions are reviewed by the United States district courts, which are the

general trial courts, some are reviewed directly by the United States courts of

appeals, and others are reviewed by specialized tribunals such as the United

States Court of Appeals for Veterans’ Claims which, despite its name, is not

technically part of the federal judicial branch.56 It is quite common that before a

request for judicial review of an administrative act is filed with a court, certain

preliminary conditions, such as a complaint to the authority itself, must be

fulfilled. In most countries, the courts apply special procedures in

administrative cases.

Gideon v. Wainwright (1963)

In 1961, Clarence Earl Gideon was arrested in Florida for allegedly

burglarizing a pool room. Being a destitute person, he petitioned the judge to

provide him with an attorney free of charge. The Florida court refused to

appoint a lawyer. Gideon had to defend himself. Gideon was convicted and

sentenced to five years in prison. He wrote to the Supreme Court, pleading for

a hearing in a hand-written motion, claiming he had been denied due process

by being denied a lawyer. The Supreme Court ruled for Gideon, saying that the

Sixth Amendment requires indigent criminal defendants to be provided an

attorney free of charge is fundamental to a fair trial.

The Supreme Court granted a hearing, and appointed Gideon a lawyer, Abe

Fortas, who later took a seat on the Court. Fortas argued that the Court’s prior

decision, Betts v Brady, needed to be overturned. The Court agreed and

unanimously overturned Betts. Gideon was granted a new trial, and was

acquitted. This case firmly established one of our most cherished rights, that to

have an attorney, even if one must be appointed.57

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Miranda v. Arizona (1966)

After hours of police interrogations, Ernesto Miranda confessed to rape and

kidnapping. At trial, he sought to suppress his confession, stating that he was

not advised of his rights to counsel and to remain silent. The Supreme Court

agreed, holding that police must inform suspects of their rights before

questioning.58

It was another case that helped define the due process clause of the 14th

Amendment. At the centre of the case was Ernesto Miranda, who had

confessed to a crime during police questioning without knowing he had a right

to have an attorney present. Based on his confession, Miranda was convicted.

The Supreme Court overturned the conviction, ruling that criminal suspects

must be warned of their rights before they are questioned by police. These

rights are: the right to remain silent, to have an attorney present, and, if the

suspect cannot afford an attorney, to have one appointed by the state. The

police must also warn suspects that any statements they make can be used

against them in court. Miranda was retried without the confession and

convicted.59

Terry v. Ohio (1968)

Observing Terry and others acting suspiciously in front of a store, a police

officer concluded that they might rob it. The officer stopped and frisked the

men. A weapon was found on Terry and he was convicted of carrying a

concealed weapon. The Supreme Court ruled that this search was reasonable.

This case was the first in a long line of Supreme Court cases that recognized

the police practice known as ‘stop and frisk’ as a legitimate law enforcement

tool. Stop and frisk is a stopping and interrogation or brief investigation which

may be accompanied by the patting down of outer clothing to make sure the

suspect is not armed.60

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The Supreme Court ruled that, for the protection of an officer, stop and frisk

was not a violation of the fourth Amendment when a police officer’s

experience tells him that criminal activity may be occurring and that the

suspected criminal may be armed and dangerous.61

However, judicial review of administrative actions has been a traditional

function of the courts. After World War II, courts became more vigilant and

demanded that although they would not substitute their decision for that of the

decision of the administrative authority, they would require the administrative

authorities to satisfy them that all relevant matters had been considered. This is

known as Wednesbury Principle.62

U.S. v. Nixon (1974)

The special prosecutor in the Watergate affair subpoenaed audio tapes of Oval

Office of White House conversations. President Nixon refused to turn over the

tapes, asserting executive privilege. The Supreme Court ruled that the

defendants’ right to potentially exculpating evidence outweighed the

President’s right to executive privilege if national security was not

compromised.63

The early 1970s was a time of growing distrust in the National Government.

The Pentagon Papers exposed the intentional deception of the American people

about Vietnam. Americans were shocked when the National Guard opened fire

at a Kent State University protest following President Nixon’s authorization for

the United States to attack Cambodia. Four students were killed. Nixon would

soon add more fuel to the fire, attempting to cover up illegal actions by himself

and his administration.

In June 1972, five men armed with cameras and bugging equipment were

arrested inside the Democratic National Committee’s offices in the Watergate

complex in Washington, D.C. Police soon discovered that the burglars worked,

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directly or indirectly, for the Committee to Re-Elect the President. President

Nixon and leaders of his campaign denied any connection with the incident.

The five men were convicted of burglary, along with E. Howard Hunt, Jr., a

former Nixon aide, and G. Gordon Liddy, a lawyer for the Committee to Re-

elect the President. Shortly afterward, the presiding judge received a letter from

one of the convicted men. It spoke of payoffs to the burglars in return for their

silence—the men had perjured themselves to protect others involved in the

break-in.

In 1973, a Senate select committee began an investigation, and it became clear

that top members of the Nixon administration were involved in a cover-up of

the break-in and several other illegal actions. It was also discovered that Nixon

had installed a taping system that automatically recorded all of his

conversations with his advisors. A special prosecutor appointed to probe the

Watergate scandal subpoenaed the tapes. Nixon refused to release them,

claiming they were protected under executive privilege. Nixon eventually

released some of the tapes, but portions of them had been erased. Finally,

another special prosecutor asked the United States Supreme Court to compel

Nixon to release all of the tapes in their entirety.

Does the separation of powers created by the Constitution provide the President

with an absolute power to withhold information from other branches of

government? If the power is not absolute, should President Nixon be able to

claim executive privilege under the aforementioned circumstances? Does the

separation of powers allow for the settlement of this dispute to reside in the

executive branch or should it be settled by the judicial branch? Does the claim

of executive privilege damage the precedent set by the fifth Amendment, which

ensures due process?

For the United States: The President’s power to claim executive privilege is not

an absolute one. Executive privilege may not be invoked to deny the courts

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access to evidence needed in a criminal proceeding. This is a dispute that can

properly be heard in the federal courts.

For President Nixon: The constitutional scheme of separation of powers grants

to the President the privilege of withholding information from the other

branches of government. Furthermore, this power is absolute, and it is vital

where high-level communications are involved. In addition, this dispute should

be resolved within the executive branch, not by the courts.64

The Court ruled unanimously that President Richard Nixon had to surrender the

tapes. Chief Justice Warren Burger delivered the opinion of the Court. Burger

wrote, “The impediment that an absolute, unqualified privilege would place in

the way of the primary constitutional duty of the Judicial Branch to do justice

in criminal prosecutions would plainly conflict with the function of the courts

under Article III.”

Burger then turned his attention to the damage that a privilege of

confidentiality would cause to citizens’ constitutional rights that is, “The right

to the production of all evidence at a criminal trial similarly has constitutional

dimensions. The sixth Amendment explicitly confers upon every defendant in a

criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to

have compulsory process for obtaining witnesses in his favour.’ Moreover, the

Fifth Amendment also guarantees that no person shall be deprived of liberty

without due process. It is the manifest duty of the courts to vindicate those

guarantees, and to accomplish that it is essential that all relevant and admissible

evidence be produced.” The Court made it clear that the President could not

withhold evidence from an ongoing criminal prosecution of another person

simply because he was the President.

Several days before, the House Judiciary Committee had approved three

articles of impeachment. On August 9, 1974, Nixon became the first President

in U.S. history to resign from the presidency. He did so in order to avoid going

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through the likely prospect of being impeached by the full House of

Representatives and convicted by the Senate.65

Texas v. Johnson (1989)

To protest the policies of the Reagan administration, Gregory Lee Johnson,

then a member of the Revolutionary Communist Youth Brigade, burned an

American flag outside of the Dallas City Hall. He was arrested for this act, but

argued that it was a symbolic speech. The Supreme Court agreed, ruling that

symbolic speech is constitutionally protected even when it is offensive. The

case invalidated prohibitions on desecrating the American flag enforced in 48

of the 50 states. Justice William Brennan wrote for a five-justice majority in

holding that the defendant’s act of flag burning was protected speech under the

first Amendment to the United States Constitution. Johnson was represented by

attorneys David D. Cole and William Kunstler.

The Court found that Johnson’s actions fell into the category of expressive

conduct and had a distinctively political nature. The fact that an audience takes

offense to certain ideas or expression, the Court found, does not justify

prohibitions of speech. The Court also held that state officials did not have the

authority to designate symbols to be used to communicate only limited sets of

messages, noting that “if there is a bedrock principle underlying the first

Amendment, it is that the Government may not prohibit the expression of an

idea simply because society finds the idea itself offensive or disagreeable.”66

The first Amendment overrules the Texas law that forbids the desecration of a

venerated object under these circumstances. The State court of Appeals

affirmed that Johnson was in the wrong, however, the Texas Court of Criminal

Appeals reversed. The Texas Court of Criminal Appeals pointed out that the

state, under the first amendment, could not punish Johnson for burning the flag

due to the current circumstances. The court found that Johnson's burning of the

flag was expressive conduct protected by the first Amendment.67

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Bush v. Gore (2000)

Following the U.S. Supreme Court’s decision in Bush v. Palm Beach County

Canvassing Board, and concurrent with Vice President Al Gore’s contest of the

certification of Florida presidential election results, on December 8, 2000 the

Florida Supreme Court ordered that the Circuit Court in Leon County tabulate

by hand 9000 contested ballots from Miami-Dade County. It also ordered that

every county in Florida must immediately begin manually recounting all

‘under-votes (ballots which did not indicate a vote for president) because there

were enough contested ballots to place the outcome of the election in doubt.

Governor George Bush and his running mate, Richard Cheney, filed a request

for review in the U.S. Supreme Court and sought an emergency petition for a

stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted

review and issued the stay on December 9. It heard oral argument two days

later.68

Noting that the Equal Protection clause guarantees individuals that their ballots

cannot be devalued by ‘later arbitrary and disparate treatment,’ the per curiam

opinion held 7-2 that the Florida Supreme Court’s scheme for recounting

ballots was unconstitutional. Even if the recount was fair in theory, it was

unfair in practice. The record suggested that different standards were applied

from ballot to ballot, precinct to precinct, and county to county. Because of

those and other procedural difficulties, the court held that no constitutional

recount could be fashioned in the time remaining (which was short because the

Florida legislature wanted to take advantage of the ‘safe harbor’ provided by 3

USC Section 5). Loathe to make broad precedents, the per curiam opinion

limited its holding to the present case. Rehnquist (in a concurring opinion

joined by Scalia and Thomas) argued that the recount scheme was also

unconstitutional because the Florida Supreme Court’s decision made new

election law, which only the state legislature may do. Breyer and Souter

(writing separately) agreed with the per curiam holding that the Florida Court’s

recount scheme violated the Equal Protection Clause, but they dissented with

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respect to the remedy, believing that a constitutional recount could be

fashioned. Time is insubstantial when constitutional rights are at stake.

Ginsburg and Stevens (writing separately) argued that for reasons of

federalism, the Florida Supreme Court’s decision ought to be respected.

Moreover, the Florida decision was fundamentally right; the Constitution

requires that every vote be counted.69

“By halting the Florida recount in the interest of finality,” Justice Stevens

wrote, “the majority effectively orders the disenfranchisement of an unknown

number of voters whose ballots reveal their intent—and are therefore legal

votes under state law-but were for some reason rejected by ballot-counting

machines.” In addition, Breyer stated: “An appropriate remedy would be to

remand this case with instructions that, even at this late date, would permit the

Florida Supreme Court to require recounting all undercounted votes in Florida

… and to do so in accordance with a single uniform standard.” However the

court also ruled that no alternative method could be established within the time

limits set by the State of Florida.70

The Supreme Court recently upheld the constitutionality of McCain-Feingold

in McConnell v. Federal Election Commission (2003) There, as in numerous

others cases over the last 100 years, the Court upheld congressional authority to

regulate corporate expenditures in federal elections because “there is

substantial evidence . . . to support Congress’ determination that such

contributions . . . give rise to corruption and the appearance of corruption.”71

In the United States, judicial review of legislation became the most significant

aspect of American law. Although the Constitution nowhere mentions that the

Supreme Court of the United States has the power to invalidate acts of congress

if they are contrary to the provisions of the Constitution, Chief Justice Marshall

held in Marbury v. Madison that such power was implied in a written

Constitution. This assertion of power was criticized severely. The main thrust

of the criticism was that an unelected court was to censor the legislation

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enacted by an elected legislature; judicial activism has always evoked varying

types of responses.

With the advent of the welfare state and increase in the powers of executive,

the courts started asking for stricter standards of reasonableness from the

executive. In India courts have always required ‘proportionality test’ where

restrictions are imposed on fundamental rights.72 However, in cases where an

administrative action has no adverse effect on fundamental freedoms, the scope

of judicial review of administrative action will be limited. The Court will not

exercise close scrutiny and would not make primary judgment as to the choices

made by the administration. In such a situation judicial review will be confined

to Wednesbury rules. In India it was believed that proper check on the

administrative actions should be political. Abuse of power by the President

who acts on the advice of the Council of Ministers has to be checked by the

political process. In parliamentary democracy, such checks are inbuilt. In 1977,

the Supreme Court opened the door slightly for judicial review on limited

grounds of ultra vires and mala fide exercise of power, though it did not strike

down the impugned action.73-74 However in S.R. Bommai v. India, Supreme

Court by a majority of six judges held that the President’s satisfaction under

Article 356 of the Constitution was justifiable.75 In Canara Bank v. V.K.

Awasthy, the apex Court had the opportunity of explaining the scope and ambit

of the power of judicial review of administrative action.76 The Court held that

an administrative action, if adversely affects fundamental freedoms of Articles

19 and 21 of the Constitution, then the extent of judicial review will be

extensive and the Court would make primary judgment and close scrutiny of

the administrative action. Hence, the power of judicial review will be exercised

on the grounds of illegality, irrationality, procedural impropriety and

proportionality.77 In Sidheswar Sahakari Sahakhar Karkhan Ltd. v. Union of

India the apex Court was of opinion that normally the court should not interfere

in a policy matter which is within the preview of the government unless it is

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shown to be contrary to law or inconsistent with the provisions of the

constitution. 78

Judicial Review of Primary Legislation

There is a judicial power to review primary legislation, that is, laws passed

directly by an elected legislature, and invalidate it for inconsistency with the

constitution. There are broad approaches to judicial review of the

constitutionality of primary legislation. Some countries do not permit any

review of the validity of primary legislation. In the United Kingdom, statutes

cannot be set aside under the doctrine of parliamentary sovereignty. Another

example is the Netherlands, where the Constitution expressly forbids the courts

to rule on the question of constitutionality of primary legislation. In the United

States, federal and state courts, at all levels, both appellate and trial, are able to

review and declare the constitutionality, or agreement with the Constitution - or

lack thereof - of legislation that is relevant to any case properly within their

jurisdiction. In American legal language, ‘judicial review’ refers primarily to

the adjudication of constitutionality of statutes, especially by the Supreme

Court of the United States. This is commonly held to have been established in

the case of Marbury v. Madison, which was argued before the Supreme Court

in 1803.79

A number of other countries whose constitutions do provide for reviews of the

compatibility of primary legislation, with the constitution, have established

special constitutional courts that have the exclusive authority to deal with this

issue.80 In these systems, other courts are not competent to question the

constitutionality of primary legislation. Brazil adopts a mixed model since, as

in the U.S., courts at all levels, both federal and state, are empowered to review

primary legislation and declare its constitutionality, and, as in Germany, there

is a Constitutional Court in charge of reviewing the constitutionality of primary

legislation.81

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The difference being that, in the first case, the decision about the laws

adequacy to the Brazilian Constitution only binds the parties to the lawsuit,

whereas in the second, the Court’s decision must be followed by all judges and

government officials at all levels.

Roe v. Wade (1973)

No Decision of the U.S. Supreme Court in the twentieth century has been as

controversial as the Roe v. Wade decision holding that women have a right to

choose to have an abortion during the first two trimesters of a pregnancy.

Roe v. Wade, case decided in 1973 by the U.S. Supreme Court. Along with Doe

v. Bolton, this decision legalized abortion in the first trimester of pregnancy.

The decision, written by Justice Harry Blackmun and based on the residual

right of privacy, struck down dozens of state antiabortion statutes. The decision

was based on two cases. The first was that of an unmarried woman Norma

McCorvey, known as Jane Roe, sought to terminate her pregnancy by an

abortion performed, by a competent, licensed physician, under safe, clinical

conditions. Roe was a resident of Texas, where abortion was illegal unless the

mother’s life was at risk. The second was that of a poor, married mother of

three from Georgia, where state law required permission for an abortion from a

panel of doctors and hospital officials. While establishing the right to an

abortion, this decision gave states the right to intervene in the second and third

trimesters of pregnancy to protect the woman and the potential life of the

unborn child. Denounced by the National Council of Bishops, the decision

gave rise to a vocal antiabortion movement that put pressure on the courts and

created an anti-Roe litmus test for the judicial appointments of the Reagan and

Bush administrations from1981 to 1993. In a 1989 case, Webster v.

Reproductive Health Services, the court, while not striking down Roe, limited

its scope, permitting states greater latitude in regulating and restricting

abortions. Then in 1992, in Planned Parenthood v. Casey, the court reaffirmed

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the abortion rights granted in Roe v. Wade, while permitting further

restrictions.82

The Court held that a woman’s right to an abortion fell within the right to

privacy recognized in Griswold v. Connecticut, protected by the fourteenth

Amendment. As a result, the laws of 46 states were affected by the Court’s

ruling.83

JUDICIAL REVIEW IN INDIA

Like many other written constitutions in the world, the Constitution of India

has also provided fundamental rights for the citizens and judicial review is a

necessary concomitant of these rights, as it is meaningless to enshrine

individual rights in a written constitution if they are not enforceable in courts of

law, against any organ of the state, legislative or executive. The framers of our

constitution have affected a harmony between parliamentary sovereignty and a

written Constitution with a provision for judicial review. The Supreme Court of

the USA has the power to invalidate a law duly passed by the legislature on the

grounds that it is opposed to some general principles vaguely laid down in the

Constitution. Under the English Constitution, on the other hand, Parliament is

supreme and can do everything that is not naturally impossible. The courts

there cannot nullify any acts of the parliament on any ground whatsoever.

The tradition of judicial activism that commenced in the United States with

Marbury v. Madison followed in India by Justice Mahmood, Allahabad High

Court in 1893 and came to the forefront in India and conspicuously in

Kesavananda Bharti v. State of Kerala has taken firm roots on the Indian soil.

It has given new meanings and dimensions to the various Constitutional Rights

available to the common Indian citizen and utilized them to regulate the social,

economic, civil and cultural existence of the common masses. In this manner

the entire nation embraced in realizing the Constitutional objectives of Justice,

liberty and equality. Judicial activism as a tool frequently resorted to against

executive has also invited allegations of its excess use not only from other

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quarters but from the apex court itself; yet, there is no doubt that judicial

activism has generally addressed the interests of the common Indian citizens

and materialized their constitutional rights in their favour, the cases which

show instances of judicial activism in India are discussed ahead in this heading.

The Indian constitution, however, adopts the middle course between the

American system of judicial supremacy and the English principle of

parliamentary supremacy. It has endowed the judiciary with the power of

declaring a law as unconstitutional if it is beyond the competence of the

legislature or it contravenes the fundamental rights or any mandatory

provisions of the Constitution of India.84 The power to judicially review any

decision is an extraordinary power vested in a superior court for checking the

exercise of power of public authorities, whether they are constitutional, quasi-

judicial or governmental. It is only available for exercise when a person who is

aggrieved by such a decision brings it before the court.

It is known that while dispensing executive functions, public authorities take

various decisions for which they should be allowed sufficient space for a

proper exercise of discretion. It is keeping this in mind by authorities that, by

and large, only the decision making process is actually subjected to judicial

review. Legislature, executive and judiciary under the Constitution are to

exercise powers with checks and balances, but not in water-tight, rigid moulds

and also gives each branch a little power over the other two.85 In India, on the

basis of Articles 32 and 136, the Supreme Court can exercise the power of

judicial review. Similarly, under Articles 226 and 227, High Courts have also

power of judicial review. Judicial review considers three aspects mainly in

India:

(1) Judicial review of legislative action,

(2) Judicial review of administrative action,

(3) Judicial review of judicial decision.

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Therefore, judicial review in Indian context 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

the 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

buildings, hospitals, roads and the like, or overseas aid, or compensating

victims of crime.86 The limit on the power of judicial review is a recurring

theme in the evolution of our Constitution. In some of its celebrated judgments,

the Supreme Court has defined the outline of sovereign power as distributed

amongst the three branches of government namely; the legislature, the

executive and the judiciary. For example, 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 republican democracy.”87

There is a compelling case that the power of judicial review delegated to

superior courts in various provisions of the Constitution of India; itself is as

much by the command of the people. But scholars who are in favour of this

view argue that judicial inquiry of the validity of legislation is a necessary

protection against the oppression of majorities, that the judges do not check the

people, the Constitution does and since the Constitution itself is popularly

ratified, there is nothing undemocratic in the power of judicial review.

174

Kesavananda Bharti v. State of Kerala (1973)

The judgement of Kesavananda Bharati v. State of Kerala and others is an

innovative decision of the Supreme Court of India. It is the basis for the power

of the Indian judiciary to review, and strike down, amendments to the

Constitution of India passed by the Indian parliament which conflict with or

seek to alter the constitution's ‘basic structure.’ The judgment also defined the

extent to which Parliament could restrict the right to property, in pursuit of land

reform and the redistribution of large landholdings to cultivators, overruling

previous decisions that suggested that the right to property could not be

restricted. The case was a culmination of a series of cases relating to limitations

to the power to amend the Indian constitution this was the case in which the

concept of basic structure was evolved. The basic structure doctrine is the

judge-made principle that certain features of the Constitution of India are

beyond the limit of the powers of amendment of the Indian parliament. The

basic structure doctrine applies only to the constitutionality of amendments and

not to ordinary Acts of Parliament, which must conform to the entirety of the

constitution and not just to its basic structure.88

This case is popularly known as the fundamental rights case because the

petitioners have challenged the validity of the Kerala Land Reforms Act 1963.

But during the pendency of the petition the Kerala Act was amended in

1971and was placed in the Ninth Schedule by the 29th Amendment Act. The

petitioners were permitted to challenge the validity of 24th, 25th and 29th

amendment to the constitution. During the pendency of the writ petitions,

Parliament passed the three constitutional amendments, namely, 24th, 25th and

29th Amendments. As the petitioner apprehended that he would not succeed in

view of the above amendment he also challenged the validity of these

amendments.89

The Constitution twenty-fourth Amendment Act, enacted that Parliament may,

in exercise of its constituent power, amend provision of the constitution in

175

accordance with the procedure laid down in that article. The other part of the

amendment is that nothing in Article 13 shall apply to any amendment under

Article 368.

The constitution twenty-ninth Amendment Act included the Kerala Land

Reforms Acts in the Ninth Schedule to the Constitution making them immune

from attack on the ground of violation of the fundamental rights. The petitioner

challenged the validity of the three Constitution Amendment Acts. The

Supreme Court held that the Parliament had wide powers to amend any Article

of the Constitution. However, the amending power is not so wide as to enable

the Parliament to alter the basic features or to abrogate the entire Constitution.

It was argued that though the power is wide but it is not unlimited. Power to

amend under Article 368 does not empower the parliament cannot alter the

basic structure of the Constitution under Article 368. In contrast, state argued

that parliament has power to amend is wide and not limited.

In the court, the majority judgement ruled that the declaration clause of Article

31C as unconstitutional because it was damaging basic structure of the

constitution. However, the first part of the clause held to be valid .The majority

judgment clearly held that any law enacted by the parliament for giving effect

to the directive principals contained in clauses (b) and (c) of Article 39 cannot

be declared void on the ground that it violets any of the rights conferred by the

Articles 14, 19 or 31.

Consequently, constitution added Article 31 (C) by twenty-fifth Amendment

Act, 1971. The new article empowers the Parliament as well as State

Legislatures to enact laws towards securing the directive principles specified in

Article 39 (b) and (c) of the constitution. Article 31 (c) thus gives the directive

principles in Art 39 (b) and (c) primarily over the fundamental rights

guaranteed by Articles 14 and 19 of the Constitution.90

176

In the end, the bench came up with some essential elements that can be

reckoned as forming the basic structure of constitution and they postulated that

parliament has unrestrained power to amend the constitution. It was repeated

that there are some necessary implications that prevents the absolute

amendment of the constitution, the notion of sovereignty, democracy, republic

government and other such features form the basic structure and cannot be

obliterated by any amendment. 91

The decision of the Supreme Court of India in Kesavananda Bharti case

marked and explained the term which is called ‘basic structure’ to measure

whether the Parliament is seeking to destroy the Constitution, by using its

powers under Article 368, which was so far, understood to be a power, the

exercise of which was not subject to judicial scrutiny. Basic Structure is not

contained in one or more provisions of the Constitution of India, but it is

supposed to be the sum total of the core of our Constitution. Also in the same

case the honourable court has interpreted the scope and meaning of judicial

review. “The power of judicial review is, however, confined not merely to

deciding whether in making the impugned laws the central or state legislatures

have acted within the four corners of the legislative lists earmarked for them;

the courts also deal with the question as to whether the laws are made in

conformity with, and not in violation of, the other provisions of the

Constitution. As long as some fundamental rights exist and are a part of the

Constitution, the power of judicial review has also to be exercised with a view

to see that the guarantees afforded by those rights are not contravened, review

has thus become an integral part of our constitutional system and a power has

been vested in the High Courts and the Supreme Court to decide about the

constitutional validity of provisions of statutes. If the provisions of the statute

are found to be violative of any Article of the Constitution, which is the

touchstone for the validity of all laws, the Supreme Court and the High Courts

are empowered to strike down the said provisions.”92

177

The Bank Nationalization Case (1970)

The Bank nationalization means giving to the government, the power to control

banks. A Special Bench consisting of eleven judges gave a majority (10-1)

judgment in the so called Bank Nationalization case (R.C. Cooper V. Union of

India) took a position that was very much in consonance with the position

taken earlier by Chief Justice Subba Rao. In this case validity of the Banking

Companies (Acquisition and Transfer of Undertakings) Act 1969, was

challenged on grounds of inadequate compensation after the President of India

nationalized 14 Indian Banks on the recommendation of the then Prime

Minister Mrs. Gandhi. The Act did lay down principles for determination and

payment of compensation to the Banks, which was to be paid for in form of

bonds, securities etc. However such compensation was challenged on the

grounds that the Act did not fulfil Article 31(2) because, it was argued, the

principles for determining compensation were irrelevant for arriving at the

compensation and some of the assets of the Banks particularly intangible assets

such as goodwill and unexpired leases for premises etc, were not taken into

account for calculating compensation. The majority of the judges accepted this

view, and stated that both before and after the amendment to Article 31(2) there

is a right to compensation and by giving illusory compensation the

constitutional guarantee to provide compensation for an acquisition was not

complied with. It was also stated that the legislature is not the final authority on

compensation.

It was held that ‘potential value’ and ‘the goodwill and the value of the

unexpired period of long term leases’ should be taken into account to determine

compensation. The word ‘compensation implied full monetary equivalent of

the property taken away from the owner i.e. market value on the date of

acquisition. It appears that on account of this judgment, some change was made

to Act covering bank acquisitions and passed by Parliament with a specified

amount being given to the Banks, though more significantly it provided the

critical fuel to push for the enactment of twenty-fifth Amendment.93

178

Abolition of Privy Purses (1971)

The concept of rulership, with privy purses and special privileges unrelated

to any current functions and social purposes, is incompatible with an

egalitarian social order. Government has, therefore, decided to terminate the

privy purses and privileges of the Rulers of former Indian States. It is

necessary for this purpose, apart from amending the relevant provisions of

the Constitution, to insert a new article therein so as to terminate

expressly the recognition already granted to such Rulers and to abolish privy

purses and extinguish all rights, liabilities and obligations in respect of privy

purses in India.94

The royal families of former princely states get compensation as part of their

agreements to first integrate with India. They ceased to get payment until the

abolition of Privy Purse by an enactment in 1971.

At the time of independence, these states signed the Instrument of Accession

with two new States; India and Pakistan. Few states remained complete

independence, exceptionally. However, with the effort of Vallabhbhai Patel and

VP Menon, Travancore, Bhopal and Jodhpur, Kashmir, Junagadh and

Hyderabad etc., were became integrated part of India. For surrendering

sovereignty, the prince and owner of these states were granted Privy Purses and

many privileges determined by numerous factors. The monetary range of the

privy purses was, from five thousand to million Rupees per annum.

The President of India derecognized the princes and terminated their privileges

and privy purses with immediate effect by an order dated 6th September 1969.

The princes challenged the validity of the order of the President in the Supreme

Court, a special bench of nine judges headed by justice Hidaytullah heard the

matter. By a majority judgment, Supreme Court declared that Presidential order

was ultra-vires of the constitution and hence illegal and inoperative.95

179

She described the controversy raised by the vested interest as to the supremacy

of the parliament against the supremacy of the constitution. She also denied

having any confrontation between parliament and judiciary. Every institution,

according to her, had its assigned place and role.96

Then Prime Minister, Mrs. Indira Gandhi proposed a motion to abolish the

Privy Purses in the parliament, with the argument that every citizen has equal

rights and the need to reduce the government’s revenue deficit. Many royal

families tried to save it through campaigns to contest seats in the Lok Sabha

elections of 1971, but they failed to get any success.

In USA, judges who consistently interfere with the process of democracy are

playing high-stakes poker. Those who have won their battles in the political

arena, only to see them falter in the courts, eventually will lead a battle against

the courts themselves. None of this is healthy, but it already has started.

Syndicated columnist Pat Buchanan wants to make Federal judges subject to

voter recall and removal; former Attorney General Ed Meese wants Congress

to exercise its power under Article III of the Constitution to limit the appellate

jurisdiction of the Supreme Court; and both want to amend the Constitution to

allow the states to ratify amendments without the approval of Congress.97

In India, Supreme Court rulings offer some insights into the metamorphosis of

judicial activism. Activist judiciary traced back its roots to the year 1893, when

Justice Mehmood dispense a dissenting judgment at Allahabad High Court,

where an under trial who could not afford to engage a lawyer. Justice

Mehmood held that the pre-condition of the case being ‘heard’ would be

fulfilled only when somebody speaks. So, he gave the widest possible

interpretation of the relevant law and laid the foundation stone of the judicial

activism. Recently, the Supreme Court issued a notice to the Union government

seeking an explanation of the steps taken by it to ameliorate the plight of Indian

students in Australia, who have been facing racially motivated attacks. Foreign

policy is widely considered to be non-justiciable, that is, courts cannot

180

interfere. Yet, the interference by Indian courts has not wholly been

condemned. The next, and almost equally striking, instance is a Supreme Court

notice questioning the proliferation of Chief Minister of Uttar Pradesh

Mayawati statues, allegedly worth crores of rupees, in Lucknow. Like foreign

policy, budgetary allocations (butter, guns or statues?) are non-justiciable. But

judicial interference in this matter too has not been deprecated, nor is it worthy

of serious censure.

In Minerva Mills v. Union of India, it was observed by the Supreme Court that

the clauses of Article 31(c) as introduced by the Constitution 42nd Amendment

Act. 1976, which required taking away the power of judicial review was

unconstitutional. However, judicial review was not held to be part of the basic

structure of the Constitution by the majority in this decision, although

Bhagwati in his minority decision traced the power of judicial review to

Articles 32 and 226 and observed it to be a part of the basic structure of the

Constitution, and if taken away by a constitutional amendment would amount

to ‘subversion of the Constitution’.98

Justice Ahmadi referred the case State of Madras v. V. G. Row, where Chief

Justice M. Patanjali Shastri held that, “Our Constitution contains express

provisions for judicial review of legislation as to its conformity with the

Constitution. It is not out of any desire to tilt at legislative authority in a

crusader’s spirit, but in discharge of a duty plainly laid upon them by the

Constitution. This is especially true as regards the ‘fundamental rights’, as to

which this court has been assigned the role of a sentinel on the qui vive. While

the court naturally attaches great weight to the legislative judgment, it may not

desert its own duty to determine finally the constitutionality of an impugned

statute.”99

Finally, a larger bench of seven judges unequivocally declared that, “the power

of judicial review vested in the High Courts and in the Supreme Court under

Articles 226, 227 and 32, respectively, is part of the basic structure of the

181

Constitution.”100 It is to be presumed that those who work the Constitution,

those who compose the legislature and those who compose the executive and

the judiciary know their functions, their limitations and their duties. It is,

therefore, to be expected that if the executive is honest in working the

Constitution, then the executive is bound to obey the legislature without any

kind of compulsion laid down in the Constitution. Similarly, if the executive is

honest in working the Constitution, it must act in accordance with the judicial

decisions given by the Supreme Court. In so far as the Constitution gives

supremacy to that, is a matter of constitutional obligation which is implicit in

the Constitution itself.

Golak Nath v. State of Punjab was the first time that limitations on the

amending power of Parliament under Article 368 were recognized. The

majority judgment was written by Chief Justice Subba Rao proceeding on the

premise that:

(a) Article 368 contained merely the procedure, not the power of

amendment; (b) The power of Amendment lay in Entry 97of List I and (c)

As a consequence of the above, a Constitutional Amendment would be

law within the meaning of Article 13.101

Constitution of India grants, Parliament and the state legislatures that they have

the power to make laws within their respective jurisdictions. This power is not

absolute in nature. The Constitution vests in the judiciary, the power to

adjudicate upon the constitutional validity of all laws. If a law made by

Parliament or the state legislatures violates any provision of the Constitution,

the Supreme Court has the power to declare such a law invalid or ultra vires.

This check notwithstanding, the founding fathers wanted the Constitution to be

an adaptable document rather than a rigid framework for governance. Hence

Parliament was invested with the power to amend the Constitution. Article 368

of the Constitution gives the impression that Parliament’s amending powers are

absolute and encompass all parts of the document. But the Supreme Court has

182

acted as a brake to the legislative enthusiasm of Parliament ever since

independence. With the intention of preserving the original ideals envisioned

by the constitution-makers, the apex court pronounced that Parliament could

not distort damage or alter the basic features of the Constitution under the

pretext of amending it. The phrase ‘basic structure’ itself cannot be found in the

Constitution. The Supreme Court recognised this concept for the first time in

the historic Kesavananda Bharati case in 1973.Ever since, Supreme Court has

been the interpreter of the Constitution and the arbiter of all amendments made

by Parliament.102

The weak Parliament has lead to an expansion of the powers of the judiciary.

Since the independence, majority mandate had been given to the Congress,

which was committed to introduce several laws pertaining to agrarian reforms;

abolition of zamindari, and other land reforms. Initially, the court showed its

sympathy with the property holders and struck down some provision in favour

of property holders.

A strong Parliament led by Pt. Jawaher Lal Nehru, lead the first constitutional

Amendment creating the Ninth Schedule to protect the agrarian reform laws in

1951, and since then, a series of constitutional amendments were made in

response to judgments of the courts.

Again, we are mentioning the Golak Nath Case,103 where, a sizeable portion of

land belonging to Golak Nath family, declared surplus under the Punjab

Security of Land Tenures Act 1953. They approached the Supreme Court under

Article 32 of the Constitution challenging the Act on the ground that their

Constitutional Rights to acquire and hold property and practice any profession

i.e. Articles 19 (1) (f) & (g) were violated, and so was their Right to equality

before law under Article 14, were denied.

Chief justice Subba Rao gave his judgment that the seventeenth, the First and

the fourth Amendments would not be affected. Therefore, Parliament could not

183

take away or abridge the Fundamental Rights. This judgment also postulated

that fundamental rights constitute the basic structure of the constitution and any

Amendment to the Constitution can be made only to preserve them.

However, these judgments did not pacify the political institution’s eagerness to

the nationalization of industry and other socialist endeavours. Austin

mentioned that ‘political and intellectual currents at the time’ were, among

other things, to overcome the Fundamental Right issue raised by the Golak

Nath decision, to amend the Articles associated with property (especially

Article 31) to keep the courts away from acquisition and compensation issues,

to take ‘property’ out of the Fundamental Rights and to restructure the

Constitution so that the Directive Principles were given precedence over the

Rights component of the Constitution. It is precisely this current that came to

express itself in the twenty fourth and twenty-fifth Amendments to the

Constitution.104

Within a few weeks of the Golaknath verdict the Congress party suffered heavy

losses in the parliamentary elections and lost power in several states. Though a

private member’s bill - tabled by Barrister Nath Pai - seeking to restore the

supremacy of Parliament’s power to amend the Constitution was introduced

and debated both on the floor of the house and in the Select Committee, it

could not be passed due to political compulsions of the time. But the

opportunity to test parliamentary supremacy presented itself once again when

Parliament introduced laws to provide greater access to bank credit for the

agricultural sector and ensure equitable distribution of wealth and resources of

production by: a) nationalizing banks, and, b) derecognizing erstwhile privy

purses. Parliament reasoned that it was implementing the Directive Principles

of State Policy, but the Supreme Court struck down both moves. By now, it

was clear that the Supreme Court and Parliament were at loggerheads over the

relative position of the fundamental rights vis-à-vis the Directive Principles of

State Policy.105

184

The battle between the parliament and the judiciary came into the front on two

levels; first was about the supremacy of Parliament versus the power of the

courts to interpret the law, enshrined in the constitution, and second about the

sanctity of property as a fundamental right jealously guarded by an affluent

class numerically much smaller than the large impoverished masses for whose

benefit the Congress government claimed to implement its socialistic

development programme. At one level, the battle was about the supremacy of

Parliament vis-à-vis the power of the courts to interpret and uphold the

Constitution. At another level the contention was over the sanctity of property

as a fundamental right jealously guarded by an affluent class numerically much

smaller than the large impoverished masses for whose benefit the Congress

government claimed to implement its socialistic development programme. This

was also a reason for heavy losses in the parliamentary elections to the

Congress party.

For the first time, the Constitution of India became an electoral issue. In the

case of Bank Nationalization and abolition of Privy Purse, the battle between

parliament and judiciary manifested again, when Supreme Court struck down

the President’s order derecognizing the privy purses. In the Bank

Nationalization case the Supreme Court has held that the Constitution

guarantees right to compensation, that is, the equivalent in money of the

property compulsorily acquired. The Court has also held that a law which

seeks to acquire or requisition property for a public purpose should also

satisfy the requirements of article 19 (1) (f). Then Prime Minister Indira

Gandhi dissolved the Lok Sabha and called for a snap poll, in hasty move to

secure the mandate of the people. It was also one of her manifestos; changes in

the Constitution in order to restore the supremacy of Parliament.106

Mrs. Gandhi returned to the power with a two-third majority. People had

supported the Congress party’s socialist agenda; one among them was to

change the Constitution in order to restore the supremacy of the Parliament.

Parliament enacted many amendments between July 1971 and June 1972 to

185

regain its glory, which was diminished by judicial objections in many issues

raised by the parliament.

Constitution of India has a clear declaration that parliament and state

legislatures are independent sovereign entities and judiciary does not have the

power to enquire into their proceedings. Whereas India’s judiciary has been

known as an active in protecting people’s rights, for which it has interpreted the

constitution, law and jurisprudence in favour of public. A spectacular example

of judicial intervention, in 1998, was the ruling of the supreme court called for

trial of strength between Jagdambika Pal and Kalyan Singh to resolve the chief

ministership issues in UP, the bench said that it was a case of constitutional

breach, violating the separation of powers as mandated in the Constitution and

ordered members of the 425-seat Uttar Pradesh state assembly to attend a

special session on Thursday and decide on one of two claimants to chief

ministership. Where, the bench set the date for the session of the U.P.

Assembly and even fixed the agenda of composite floor test to determine

majority in the assembly. Legislators may complain of judicial intrusion into

their domain but they are now seeking judicial intervention of the court to end

the chaos in assembly.107

Jagdambika Pal, who withdrew with 22 members of Lok Tantarik Congress

claimed to lead a new coalition, was sworn in on February 21 by the governor,

Romesh Bhandari. Kalyan Singh’s led government came into minority and it

was dismissed by the governor. Mr. Singh refused to resign and asked for 15

days time to prove his majority. He approached the court and seeks judicial

intervention by obtaining a stay from the provincial high court which promptly

ordered his reinstatement as chief minister but left it to the governor to fix a

date for a floor-test.

Mr. Pal who insisted that he was still chief minister approached the Supreme

Court with a ‘special leave petition’ asking for a stay on the lower court’s

order, which was denied. But the apex court restrained Singh from taking any

186

major decision until he could prove his coalition’s majority. The court directed

the speaker to ‘announce the result of the voting faithfully and truthfully.’

After court’s order, the governor’s office issued an official statement, “the

main objective of the governor was to see that no side gets an undue advantage

by virtue of being in office.” The issue aggravated more when the President

Narayanan expressed his unhappiness with the haste in which he had Pal

sworn-in, in a letter to the Prime Minister. At the end, the Supreme Court held

that Mr. Bahndari could legitimately have declined to allow a floor-test once

Mr. Singh had admitted that his government was in minority and needed time

to prove majority on the floor of the house.

Of late, politicians have been complaining of judicial activism and of usurping

the powers of the legislature on major issues that come before the court. In

Jagdambika Pal case, politicians have themselves sought the direct intervention

of the judiciary in the running of their legislature.

For the first time, a Governor’s invitation to a party to form the government has

been taken to the judiciary, leading to the court intervention in the conduct of

the legislature. The Supreme Court envisaged the role of governor as more than

mere ceremonial and maintained that his/her role can be critical for upholding

the rule of law and democracy. In fact the role of two governors from two

different states- Jharkhand and Bihar - came under the close judicial scrutiny

this year and two important judgments delivered in March and October this

year by Supreme Court raised a lot of questions. Governor of Jharkhand, Syed

Sibte Razi’s action came under closely scrutiny of the Supreme Court because

following elections in the state he did not invite the leader of the largest pre-

poll alliance to try and form the government. He instead installed the leader of

the post poll ‘hotchpotch’ which still lacked a simple majority. This led to

allegations of partnership. This was followed by the fact that he gave the chief

minister designate an extended time period of three weeks to prove his

majority.

187

The Supreme Court first directed the pro-term speaker of the Jharkhand

assembly to conduct a composite floor test on Friday, March 11, instead of

Tuesday March 15, and also asked that the proceeding in the house on March

10-11 be video graphed for a copy of a recorded video to be presented to it.

The court ignored the objection of the counsel of the government to be who

was invoking the limits of judicial review to argue that the court could not

interfere in the matter. The manner and extent of the Supreme Court’s

intervention in the case is to be assessed on the touchstone of the Articles 122

(Courts not to inquire into proceedings of Parliament), and 212 (Courts not to

inquire into proceedings of the Legislature) of the Constitution of India.108

A Bench comprising Justices A K Mathur and Markandey Katju had no

hesitation in declaring that the three-judge Bench judgment in the Jharkhand

case as well as in Jagdambika Pal case virtually snapped the fine thread that

separated the domains of the three organs - legislature, executive and judiciary.

These two cases were “two glaring examples of deviations from the clearly

provided constitutional scheme of separation of powers”, the Bench said.109

While adjourning the house, Jharkhand pro-tem speaker P.K. Balmuchu said

Lok Sabha speaker would have to clarify whether a pro-tem speaker could

conduct a trust vote in the wake of the Supreme Court ordering it. Meanwhile,

Lok Sabha Speaker Somnath Chatterjee was embarrassed as the government on

March 11 refused to refer to the president the Supreme Court’s intervention in

Jharkhand a day after his recommendation to do so. Law Minister H.R.

Bhardwaj said the central government would not seek a presidential reference

to the Supreme Court on the Jharkhand assembly case, as the government was

duty-bound to execute judicial orders. Chatterjee had said that the apex court’s

order to advance the date of a confidence motion by Chief Minister Shibu

Soren had upset the constitutional balance and democratic functioning in the

state. The judicial intervention in the functioning of the Jharkhand legislature

throws up important questions about the spheres of authority of the different

wings of India’s democratic set-up.

188

There are innumerable cases where the judicial intervention is common despite

the fact that the field is covered by some statute or subordinate legislation.

Judicial intervention emerged and have largely been practiced by the Supreme

Court for long time and remained a moot issue in political and executive

sphere. The Delhi High Court had issued directions touching every aspect of

daily life, such as nursery school admissions, un-authorised schools, criteria for

free seats in schools, number of free beds in hospitals on public land, begging

in public, use of subways, illegal constructions in Delhi, size of speed breakers,

auto-rickshaw overcharging and frequency of road accidents. The judges

should know their limits and not try to run the government.

Therefore, from the above arguments and references, it is clear that the power

of judicial review is a part of the basic structure of the Constitution, and is

permanent even by a constitutional amendment as affirmed by the Supreme

Court in Kesavananda Bharti case. Representative democracy as an expression

of the people’s will, speaking through their elected representatives, is a non-

negotiable principle of our republican agreement which itself is the product of

an exercise of the unbroken sovereign power. The Supreme Court of India as

the guardian of democratic morality will remember that the exercise of

constitutional power is persistent in the final analysis by the intellectual

integrity, independence and fearlessness of judges without any doubt.

189

REFERENCES:

1. Surya Deva, “Who will Judge the Judges: A Critical Purview of Judicial

Activism”, Delhi University Law Journal, Vol. 1, 1997, pp. 30-40.

2. Sukh Dass v. Union Territory of Arunachal Pradesh (1986) 2 SCC 401;

Sheela Barse v. Union of India (1986) 3 SCC 632

3. Lowell Barrington, Michael J. Bosia & Kathleen Bruhn, Comparative

Politics: Structures and Choices, Cengage Learning, U.S.A., 2009, p. 283.

4. Keenan D. Kmiec “The Origins and Current Meanings of Judicial

Activism”, California Law Review, Vol. 92, No. 5, October 2004, pp. 1443.

5. Merriam-Webster, Inc, Merriam-Webster's Dictionary of Law, Merriam-

Webster, United State of America, 1996.

6. Henry Campbell Black M A, A Law Dictionary Containing Definitions of

the Terms and Phrases of American and English Jurisprudence; Ancient

and Modern, 2nd ed., The Lawbook Exchange Ltd., New Jersey, 1995.

7. Arvinda Verma, “Taking Justice Outside the Courts: Judicial Activism in

India”, The Howard Journal, Vol. 40, No. 2, 2001, pp. 148-164.

8. K.L. Bhatia, Judicial Review and Judicial Activism: A Comparative Study

of India and Germany from an Indian Perspective, Deep and Deep

Publications, New Delhi, 1997, p. 116.

9. Harshavardhana, “Judicial Activism in India”, Indian Journal of Politics,

Vol. 26, No. 1-2, 1992, pp. 134-44.

10. The Indian Express, 5 January 1997, p. 6.

11. S. B. Jaisinghani, “It is Judicial Assertion”, The Indian Express, 23

December 1998, p. 6.

12. H. D. Shourie, “Should P.I.L. be Curbed?” The Times of India, 23 February

1997, p. 18.

13. Surya Deva, op. cit., p. 30.

14. Ashok K. Johri, “Judicial Activism and Social Transformation”, U.P.

Journal of Political Science, Vol. 1, No. 1, January-June, 1989, pp. 26-37.

190

15. Gulab Gupta, “Judicial Activism - A National Necessity”, Central India

Law Quarterly, Vol. 12, Part 1, January- March, 1999, pp. 1-13.

16. V.G. Palshikar, “Judicial Activism”, All India Reporter, Journal Section,

1998, p. 201.

17. Verma, “The Core of Justice Verma’s Judicial Philosophy” The Indian

Express, 23 January 1998, p. 7.

18. Sudesh Kumar Sharma, “Public Interest Litigation: A Revolution in Judicial

Process”, in K.L. Bhatia (ed.), Judicial Activism and Social Change, Deep

and Deep Publications, New Delhi, 1990, pp. 199-215.

19. Simon James and Chantal Stebbings, A Dictionary of Legal Quotations,

Universal Law Publishing Co. Pvt. Ltd., Delhi, 1997, p. 80.

20. S.C. Gupta, Supreme Court of India: an Instrument of Socio-legal

Advancement, Deep and Deep Publications, New Delhi, 1995, p. 150.

21. Keenan D. Kmiec, ‘op. cit., p. 1445.

22. Ibid.

23. Ibid.

24. Ibid.

25. Beverly A. Potter, Patriots Handbook, Ronin Publishing, California, 2010.

26. The first 10 amendments to the Constitution — went into effect on 15

December 1791, when the state of Virginia ratified it, giving the bill the

majority of ratifying states required to protect citizens from the power of the

federal government.

27. Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)

28. David Bradstreet Walker, The Rebirth of Federalism: Slouching Toward

Washington’, Chatham House Publishers, New York, 1995, p.77.

29. William Marbury v. James Madison, Secretary of State of the United States,

1 Cranch 137

30. Edward McPherson, Handbook of Politics for 1870, Philp & Solomons,

Princeton University, Washington, 1870, p. 515.

31. McCulloch v. Maryland 17 US 316,(1819) 4 L. Ed. 579

32. Justice J.S. Verma, India Today, 15 March 1996. p. 122.

191

33. P.U.C.L., report, “P.I.L.: A Needless Controversy”, in A.R. Desai (ed.),

Violation of Democratic Rights in India, Popular Prakashan, Bombay, 1986,

pp. 172-78.

34. B. Venkatachalapathi, “Politics of Violence in India”, The Third Concept,

Vol. 12, No. 141, 1998, pp. 17-19.

35. Justice Michael Kirby, “In a Democracy, the Big Leap is for Parliament to

Take, Not Judiciary”, The Times of India, 16 January 1997, p. 11.

36. M. H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544, AIR 1978 SC

1548

37. AIR 1976 SC 1455

38. AIR 1978 SC 597

39. J.N. Pandey, Constitutional Law of India, Central law Agency, Allahabad,

1998, p. 319.

40. Nikhil Chakravartty, “Judicial Activism: Right or Wrong”, Mainstream,

Vol. 35 No.16, Perspective Publication Pvt. Ltd., New Delhi, 29 March

1997, pp. 3-4.

41. Brian Duignan, The Judicial Branch of the Federal Government, The Rosen

Publishing Group, New York, 2009, p. 86.

42. Encyclopædia Britannica: A New Survey of Universal Knowledge’,

Volume 13 Encyclopaedia Britannica, Virginia, 1963, p. 172.

43. Kunkel, W., An Introduction to Roman Legal and Constitutional History’,

translated into English by J.M Kelly, Clarendon Press Oxford, U.K., 1966,

p. 157.

44. Valerie J. Janesick, Curriculum Trends: A Reference Handbook

Contemporary Education Issues, ABC-CLIO E-Books, California, 2003, p.

12.

45. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

46. http://www.uscourts.gov/EducationalResources/ConstitutionResources/Leg

alLandmarks/LandmarkSupremeCourtCases.aspx

accessed 22 September 2009

47. Cooper v. Aaron, 358 US 1 – 1958

192

48. C. H. McIlwain, Constitutionalism and the Changing World: Collected

Papers, Cambridge University Press, New York, 2010, p. 279.

49. Alexander Hamilton , “The Federalist No. 78”, The Judiciary Department,

Independent Journal, 14 June 1788.

50. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

51. Article II, section 2, clause 2, U.S. Constitution

52. Alexander Hamilton, op. cit.

53. See Congressional Record, Proceeding and Debate on the 108th Congress,

Second Session, United States Government Printing Office, Washington,

Vol.150, Part 13, 2004, p. 17232.

54. Louis Madison, Address of L. Madison Day, BiblioLife, LLC, 2009, p. 21.

55. Alex, Allan, “Department for Constitutional Affairs”, Evidence to the

Senior Salaries Review, Body HMSO, 2006, pp. 27–30.

56. United States Court of Appeals for Veterans’ Claims

http://www.uscourts.cavc.gov/

accessed 25 January 2010

57. Gideon v. Wainwright, 372 U.S. 335 (1963)

58. http://www.uscourts.gov/EducationalResources/ConstitutionResources/Leg

alLandmarks/LandmarkSupremeCourtCases.aspx

aceessed 29 April 2009

59. Miranda v. Arizona, 384 U.S. 436 (1966)

60. Constitution 101 - Fourth Amendment

http://www.examiner.com/law-and-politics-in-houston/constitution-101-

fourth-amendment

accessed on 18 August 2009

61. Terry v. Ohio 392 U.S. 1 (1968)

62. Associate Provincial Pictures Ltd. v. Wednesbury Corporation (1948) 1

K.B. 223

63. http://www.uscourts.gov/EducationalResources/ConstitutionResources/Leg

alLandmarks/LandmarkSupremeCourtCases.aspx

accessed 20 April 2009

193

64. http://www.infoplease.com/us/supreme-court/cases/ar41.html

accessed on 20 April 2009

65. United States v. Nixon, 418 U.S. 683 (1974)

66. U.S. Supreme Court Media, IIT Chicago-Kent College of Law

http://www.oyez.org/cases/1980-1989/1988/1988_88_155

accessed September 19, 2011

67. Texas v. Johnson, 491 U.S. 397 (1989)

68. http://www.oyez.org/cases/2000-2009/2000/2000_00_949/

accessed 20 April 2009

69. http://www.civiced.org/wtpcompanion/hs/index2009.php?menu=menu&&u

nit=4&&detail=court%20cases

accessed on 20 April 2009

70. http://law.jrank.org/pages/4945/Bush-v-Gore-U-S-Supreme-Court-Steps-

In.html

accessed 20 April 2009

71. Bush v. Gore, 531 U.S. 98 (2000)

72. Union of India v. G. Ganaythuam (1997) 7 SCC 463

73. M.C. Mehta (child labour matter) v. State of Tamil Nadu, (1996) 6 SCC 756

74. State of Rajasthan v. Union of India, AIR 1977 SC 1361

75. (1994) 3 SCC 1

76. (2005) 6 SCC 321

77. “Annual Survey of Indian Law”, The Indian Law Institute, Volume XLI,

New Delhi, 2005.

78. (2005) 3 SCC 369

79. Robert Lowry Clinton, Marbury v. Madison and Judicial Review, The

University Press of Kansas, Lawrence, 1989, p. 176.

80. Albert J. Rosenthal, Louis Henkin, Constitutionalism and Rights: the

Influence of the United States Constitution Abroad, Columbia University

Press, New York, 1990, pp. 38-55.

81. www.stf.jus.br/arquivo/cms/.../anexo/Respostas_Venice.../8English.pdf

accessed 12 May 2010

194

82. http://www.oyez.org/cases/1970-1979/1971/1971_70_18

accessed on 21 March 2010

83. Roe v. Wade, 410 U.S. 113 (1973)

84. D.D. Basu, Introduction to the Constitution of India, 19th ed., Wadhwa and

Company Law Publisher, New Delhi, 2005, p. 41.

85. Robert E. Dewhirst, John David Rausch, Encyclopedia of the United States

Congress, Infobase Publishing, New York, 2007, p. 323.

86. Union of India v. S. B. Vohra, (2004) 2 SCC 150

87. People’s Union for Civil Liberties v. Union of India, 2003 (3) SCALE 263

88. http://legalservicesindia.com/article/print.php?art_id=726

accessed on 20 April 2009

89. Bakhshish Singh, The Supreme Court of India as An Instrument of Social

Justice, Sterling Publishers, University of California , 1976.

90. http://legalservicesindia.com/article/article/his-holiness-keshvananda-

bharti-vs-state-of-kerala-with-reference-to-agrarian-reforms-in-india-726-

1.html

accessed 29 July 2011

91. Kesavananda Bharati v. The State of Kerala and Others, (AIR 1973 SC

1461

92. Kesavananda Bharati v. The State of Kerala, AIR 1973 SC 1461: (1973) 4

SCC 1461:1973 Supp SCR 1 :( 1973) 4 SCC 225: (1973) 4 SCC 225

93. RC Cooper v. Union of India, AIR 1970 SC 564

94. Surendra Mishra, Presidential Addresses to Parliament, Lok Sabha

Secretariat, Northern Book Centre, New Delhi, 1996, p.209.

95. Manisha, Profiles of Indian prime ministers: Pt. Jawaharlal Nehru to Dr.

Manmohan Singh, Mittal Publications, New Delhi, 2004, pp. 140-141.

96. Manisha, op. cit., p. 141.

97. Dr. Bresler, “National Affairs”, Pennsylvania State University, USA.

98. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625

99. State of Madras v. V. G. Row, 1952 AIR 196, 1952 SCR 597

100. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261

195

101. Golak Nath v. State of Punjab, (1967) 2 SCR 762: AIR 1967 SC

102. Edgar Thorpe & Showick Thorpep, The Pearson CSAT Manual 2011,

Pearson Education India, New Delhi, 2011 p. IP.10.

103. I.C Golaknath and Others v. State of Punjab, AIR 1967 SC 1647

104. Jaivir Singh, “Separation of Powers and the Erosion of the ‘Right to

Property’ in India”, Constitutional Political Economy, Volume 17,

Number 4, Springerlink, 2006.

105. Bibhu Prasad Mohapatra, “Rights as a Site of Struggle”, Draft paper

presented at IIM Kozhikode, 2010.

106. http://indiacode.nic.in/coiweb/amend/amend25.htm

accessed on 23 April 2010

107. Jagdambika Pal v. Union of India, AIR 1998 SC 98

108. Amitabh Behar, Social watch India: Citizens Report on Governance and

Development, 2006: Minister Accountability Governors’ Role and the

Supreme Court Intervention: Question for Judiciary, Pearson Education

India, Delhi, 2006, p. 82.

109. “Jharkhand Order Was A Breach Of Statute”,The Times of India,

11November 2007.