Position of Judicial Review in India
Today’s state is a welfare state. Modern governments perform so many functions from governing to looking after the society as well. Administrative authorities have acquired vast discretionary powers. Professor Wade in his book has said that powers of public authority are different from those of private authorities. In his private land, a man has absolute authority to act the way he wishes but a public authority does not enjoy such status. Therefore, to check and balance the powers of government, Judicial Review in India comes into play.
Introduction
Judicial Review can be defined as a procedure by which a court can pronounce on an administrative action by a public body. A judicial review is a powerful tool in the hands of judges. It gives the power to a court to hold any law unconstitutional which is inconsistent with the law of the land.
Judicial Review in India
Judicial Review in India is one of the most important development of 20th century in the field of public law. Due to arbitrary and huge discretionary power of legislation, it was absent in British India. In the case of Indira Gandhi vs Raj Narain, Judicial Review in India was held to be a basic structure of Constitution. In R.K. Jain vs Union of India, it was held to be touchstone and essence of the rule of law. Thus, it is an essential and integral part of our constitutional system. It performs following functions-
- Legitimise the government actions
- Protect the constitution against any undue encroachment by the government.
Extent of Judicial Review in India
There has been a paradigm shift in the stance of Indian Judiciary regarding the Judicial Review in India. Earlier, the government opted a pro- legislature stance which was evident from cases like A.K. Gopalan vs State of Madras. But during and around the time of emergency of 78, Indian judiciary started taking the right stance which could be seen from series of judgements starting from Indira Gandhi vs Raj Narain and Keshvananda Bharti vs Union of India.
In R.K. Jain vs Union of India, talking about Judicial Review in India, the apex court observed that” this is indeed a delicate task assigned to the judiciary by the constitution” Talking about the extent of Judicial Review in India, the court in Pratap Singh vs State of Punjab said –
The only question which could be considered by the court is whether the authority vested with the power has paid attention to or taken account circumstances, events, matters wholly extraneous to the purpose for which the power was vested. In the case of S.R. Bommai vs Union of India court said that the material on which satisfaction of President is based is open to review, though the Satisfaction of President can’t be challenged in Court.
Through judgements, following grounds are eligible for Judicial Review in India
- Illegality
- Irrationality
- Procedural Impropriety.
- Proportionality etc.
Limitation of Judicial Review
Judicial Review has certain limitations too. Self -Constraint is one of the limitations. It is the duty of the court to confine itself to the question of legality. The power of Judicial Review in India is not intended to be exercised to grant “administrative approval” to validate an executive order. Unless the order passed by an administrative authority is unlawful or unconstitutional, the power of Judicial review can’t be reduced. Other limitations of Judicial review is Constitutional and Procedural limitation.
Conclusion
To sum up, Judicial Review is the touchstone or essence of the Rule of Law. The Judicial Review is a powerful tool to put a leash on arbitrary power or excess discretionary power of State. However, parameters of Judicial Review needs to be clearly defined else the tool to stop arbitrary power will become a source of arbitrary power.
Written By Ankit Raturi, University School of Law and Legal Studies
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