Revisiting Judicial Review: A Functional Analysis

I. Introduction

The fourth Chief Justice of the United States Supreme Court and pioneer of constitutional law-John Marshall, in his opinion of the court in the case of William Marbury v. James Madison, observed that it was emphatically the duty of the Judicial Department to say what the law was². The Court ruled that American federal courts have the power to refuse to give any effect to congressional legislation which is inconsistent with their interpretation of the Constitution—a move known as "striking down" laws³. This case established the power of judicial review. This decision is not only important in American Constitutional Law but also Constitutional Laws of other countries. It is an undeniable fact that most Western countries have adopted the power to declare a law invalid that contradicts the constitution. The American Constitution was drafted by few national leaders in 1787. In the years from 1776 to 1787, state courts in at least seven of the thirteen states had engaged in judicial review and had invalidated many state statues⁴. The first American decision to recognize the principle of judicial review was Bayard v. Singleton⁵.

The concept of judicial review is a mirror of the soul. We sometimes look beyond, sometimes look within. Judicial review is related to the balance of power between the competent parts of the constitution. Regardless of incompatible systems of law, various countries upheld the judicial review for their reasons. For instance, Europe vests its executive and legislative powers in to the hands of the prime minister. Alexis de Tocqueville, a French diplomat in his book “Democracy in America” gave a simplified definition of judicial review. He opined that judges are at the liberty to refuse to enforce laws held by them to be in violation of the Constitution. We could also interpret that an absolute power to declare legislation as void is vested in the hands of the judges. The origin of judicial review in Canada, Australia, Ireland, and other countries with present or past links to the British Commonwealth is not so clearly the product of American influence⁶. As McWhinney remarks, “In its historical origins, judicial review of the Constitution in Commonwealth countries was simply part of the apparatus of Empire-a projection of Imperial power in legal institutional form”.⁷

The concept of liberty and fraternity could be traced back to ancient Rome, where the actual concept of “review” was introduced. Courts are looking at the exact wording of the constitutional text in order to solve the respective constitutional question to be decided on⁸. The doctrine aims to get out of the dictators and this doctrine could also be used as a tool to limit the popular government and protect the basic rights. The authority of German courts are one step ahead of all the other constitutional courts around the world, where they follow the three procedures: “abstract judicial review” (Abstrakte Nor menkontrolle), “Concrete Judicial Review” (Konkrete Normenkontrolle), “Individual Constitutional Complaint” (Verfassungsbechwerde). The courts are also empowered to declare a political party unconstitutional at the request of the federal government.

II. The indian scenario

Indian judicial system has been doing fantabulous work in guarding the Constitution. Keshavananda Bharati v. State of Kerala⁹ dealt with the most fundamental issues of the constitution and also widely appreciated than Madison¹⁰ case. The issue with the Indian constitution is, it is written in a very detailed manner. Our country’s constitution is a stumbling block to the judiciary. The whole issue of Marbury v. Madison¹¹ gyrates around the primordial doctrine of ultra vires. In India, the judicial review based on the doctrine of ultra vires dates back to the inception of British rule¹². Today, the Indian constitution has evolved. It is not similar to that of the one in 1950 but is not purely antithetical.

Hamilton’s concept of judicial review has become a font of immense inspiration in Indian constitutional functioning¹³. Indian constitution has a very peculiar feature. It magnificently adopts the via media between the American system of judicial supremacy and the British parliamentary supremacy¹⁴. The word judicial review is nowhere expressly mentioned in the Constitution but we can assert its features from various articles. Article 13 of the Indian constitution which defines a law states that any law made by the government which abridges fundamental rights shall be declared void. Those laws which are inconsistent, made after the commencement of the constitution are void ab intio. A person can directly approach a High Court or a Supreme Court (Constitutional Courts) under Article 226(Article 227 is only restricted to Judicial orders given by the inferior courts) and 32 to seek the protection of his fundamental rights against any arbitrary law. On perusal, we can deduce that our constitution makers gave a significant attention to the concept of judicial review. The responsibility of these constitutional courts does not end here. When there is no law, but the court finds that certain circumstances in society violate the fundamental rights of certain groups of people, it may issue its own legislative- like guidelines¹⁵. Article 136 of the Indian constitution vests the apex court with a special power to grant special leave, to appeal against any order passed by any court or tribunal when there is any substantial question of law is involved.

According to Dr.Vibhuti Singh Shekhawat, eight fundamental features are essential for the concept of judicial review. Those are (1) Pith and Substance, (2) Colourable Legislation, (3) Severability, (4) Liberal Interpretation, (5) Limitations of Stare Decisis, (6) Eminent Domain, (7) Unconstitutionality, and Eclipse, and (8) Waiver¹⁶. The doctrine of separation of powers and judicial review become a central nexus in parliamentary democracy. The doctrine of judicial review in turn led to the evolution of various theories- like the Theory of Mutual Exclusivity (rejected in Maneka Gandhi case¹⁷), Theory of Basic Structure (upheld in Kesavananda Bharati case¹⁸). To understand judicial review in India, one must go through a plethora of judgments. Being steeped in the British tradition of limited judicial review, the court generally adopted a pro-legislature stance¹⁹. One can witness such instances from controversial rulings such as A.K Gopalan v. State of Madras²⁰. But this did not continue for a long period. As mentioned earlier, even the Supreme Court evolved along with the Constitution. There was always a rift between the legislature and the apex court rulings where the latter passes a judgement and the former comes with an amendment to nullify the judgement. During the regime of Indira Gandhi, India was practically “progressing” towards socialism. The 42^nd Constitutional Amendment Act and imposition of emergency rule would prove the case in point.

III. What is basic structure?

The ‘Doctrine of Separation of powers’ is a branch of judicial review. In contrast to his legislature’s supremacy theory, the doctrine of separation of powers was first propounded by Montesquieu. Neither the parliament nor the Supreme Court is supreme. It is the constitution that is Supreme. The allegation against the act of parliament was taken in the case of Shankari Prasad v. Union of India²¹. The infamous Basic Structure doctrine upheld by the Supreme Court in the case of Keshavananda Bharati v. State of Kerala²² acts as a back bone to the judicial review. Before dealing with the intricacies of the basic structure doctrine one must have an idea of the Ninth Schedule of the Constitution. The Ninth Schedule of the Indian constitution was added by the Constitution (First Amendment) Act, 1951 along with Article 31-B. Any legislation made by the state or the parliament can be included in the Ninth Schedule with an amendment. The Ninth Schedule protects legislation that is inconsistent with any fundamental right from being declared as unconstitutional by the court. This means that something which the parliament cannot do directly, it is assumed to do indirectly²³. Up to the year 1972, sixty-six different enactments had been included in the Ninth schedule protecting from challenged as violative of fundamental rights²⁴. The issue came before the court in the Shankari Prasad case²⁵. The court held that Ninth Schedule was valid. Then came the Sajjan Singh case²⁶, where a similar view was taken by the court. Upon exanimating these judgments, one can conclude that parliament by law can take away fundamental rights. In the year 1967, two writ petitions were filed directly in the Supreme Court challenging Punjab Security of Land tenures Act, 1953 and Mysore land reforms Act, 1961 by Henry Golak Nath and N. Krishna Bhatte respectively. If Krishna Bhatte had filed his petition earlier, his name would have been immortal and no one would have ever heard of Golak Nath²⁷. A bench of eleven judges was constituted for this case. By a majority of 6:5, the court held that parliament cannot amend the constitution which abridges fundamental rights. It also held that Article 368 could not override Article 13(2). This judgement of the Supreme Court would invalidate the decisions of Shankari Prasad²⁸ and Sajjan Singh²⁹, which means parliament would have no power to amend the constitution which takes away the fundamental rights from 1950 onwards. To tackle this situation, the Supreme Court adopted the American concept of prospective overruling³⁰.

The doctrine of Basic Structure has been attributed in Keshavananda Bharati v. State of Kerala³¹. A Constitution (24^th Amendment) Act, 1971 was passed to remove the discrepancies caused due to Golak Nath’s³² judgement. The same was challenged in the case along with Twenty Fourth³³, twenty Fifth,³⁴ and Twenty Ninth Amendments³⁵. The court here actually overruled the judgement given in Golak Nath’s case. The majority held that Article 368 has the power to amend the constitution even before the Twenty Fourth amendment. They held that the judgement was merely declaratory in nature. The concept of basic structure is abstract. No one knows the exact meaning of it. It evolves with the constitution. The question as to what basic structure is not known. In the case M.Nagaraju v Union of India, the Supreme Court held that basic structure are systematic principles underlying and connecting the provisions of the Constitution. It was held that the main objective of this theory is continuity and within that continuity of identity.

IV. Basic structure and aftermath

Many judges in several subsequent judgements added their own characteristics to the doctrine. To conclude basic structure consists of features like the supremacy of the constitution, republican and democratic forms, secular character, separation of powers, the dignity of the individual, welfare state, rule of law, judicial review, and so forth. Chief Justice Sikri rejected the argument that something which cannot be cut and dried or nicely weighed or measured, does not exist³⁶. He said that several concepts of law are not capable of defined exactly.

Justice J.R Mudholkar had used the expression doctrine of “basic features” in Sajjan Singh’s case³⁷. He expressed his views and correctness of the theory in the initial judgement of the Shankari Prasad case. This idea of “basic features” came to the knowledge of Justice Mudholkar from the judgement of Pakistan Supreme Court in Fazul Quader Chowdhry v. Mohd. Abdul Haque³⁸(1963). The Pakistan Supreme Court held that the President had only the power to remove the difficulties but not fundamental features. Judgements like Indira Gandhi v. Raj Narain ³⁹, L.Chandra Kumar v. Union of India,⁴⁰Minerva Mills v. Union of India⁴¹, Maneka Gandhi v. Union of India⁴², Supreme Court Advocates on Record Association and Others v. Union of India, and etcetera challenged the legislatures passed by the parliament. The strife between the parliament and the judiciary never ended. It continued and still continues.

There are different schools of constitutional interpretations. Originalism is one among them. Originalism is a view that the constitution should be interpreted according to its original meaning⁴³. Jeffrey Goldsworthy identified various propositions relating to the Constitution and rule of law that supports the originilastic theory. He contended that the original meaning of the constitution is its “Utterance meaning”, which must be distinguished from its original literal meaning and its originally intended meaning⁴⁴. Justice H.R. Khanna also posited a similar argument in his concurring judgement in the case of Keshavanada Bharati v. State of Kerala⁴⁵. He held that the word amendment postulates that the old Constitution survives without loss of its identity despite the change and continues even though subject to alterations.

V. Judicial activism

Black’s law dictionary defines judicial activism as: “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent”. Judicial Activism denotes a more active role taken by the Judiciary to dispense social justice⁴⁶. Judicial activism is the liberalisation of access to justice. The Supreme Court of India, in the case of Vineet Narain v. Union of India⁴⁷ made it very clear that access to justice is a fundamental right. Indian judiciary plays a pivotal role in upholding the interests of its citizens. Upendra Baxi refers to judicial activism as ‘adjudicatory leadership’ of the Supreme Court⁴⁸. It is a pragmatic approach by the court where it confines itself to the boundaries of the law. Indeed, the apex court is famous for its ‘activist adjudication’.

The phrase was coined by Arthur Schlesinger Jr. (historian and social critic), who introduced it in January 1947 Fortune Magazine article⁴⁹. Article 136 of the Indian Constitution has granted a special power to the Supreme Court of India to grant special leave to appeal from any judgement, decree, determination, sentence, or order in any cause or matter passed by any court or tribunal. And then we have a curative petition. It is a dernier resort available as a redressal for grievances in court after dismissing the review plea. Judicial activism has earned a humane face in India with liberalising of access to justice and granting of relief to disadvantaged groups and the have-nots through public interest litigation (PIL)⁵⁰. In the case of Sunil Batra v. Delhi Administration⁵¹, the Supreme Court of India had exercised its epistolary jurisdiction and also took many suo moto actions on letters divulging the violation of the fundamental rights in the society. By doing so, the superior courts have liberated themselves from the shackles of the principle of locus standi and given birth to the Public Interest Litigation in India⁵².

The Supreme Court in People’s Union for Democratic Rights v. Union of India⁵³ (Asian games case) held that Public interest litigation is different from the traditional adversarial justice system. In the case of Fertilizer Corporation Kamgar Union v. Union of India⁵⁴, the petitioners of an enterprise challenged a sale of machinery and contended that it violated their rights under Article 19 (g). The court held that enabling the jurisdiction under Article 32 was part of the basic structure and the petitioners had no locus standi. It also held that public interest litigation is part of the participative justice.⁵⁵ Then came Hussainara Khatoon v. State of Bihar⁵⁶, one of the landmark cases relating to the public interest litigation. A writ petition was filed in the apex court after a series of articles exposing the plight of under trial prisoners was published in a prominent newspaper. Many of the under trail prisoners had served maximum sentences without even being charged for the offence. The court in this case held that the right to a speedy trial is also a fundamental right. A nimiety of cases were decided by the court where the resembled the importance of PIL.

A liberal approach towards the interpretation of fundamental right has been developed by the court which parted from its neanderthal approach. In its landmark judgments, the Supreme Court recognized prisoners’ rights including access to court and legal facilities⁵⁷, right to meet his or her family relatives and friends⁵⁸, freedom of speech and expression, right to compensation, mental privacy⁵⁹, etc.⁶⁰ Judges like V R Krishna Iyer, P N Bhagawati, Chinnappa Reddy and D A Desai played a substantive role in developing judicial activism. In all the above-mentioned cases the judiciary has called upon the executive to perform its obligations under the constitution and the laws⁶¹.

VI. Judicial overreach and judicial intervention

It is not always about who actually has supremacy over other – the Parliament or Judiciary, but it is actually who has the authority to interpret and implement the ideologies of the Constitution. Justice Markandey Katju in N. Priyadarshinisi v. The Secretary to Government⁶² observed that:

“Under our Constitution the legislature, the Executive and the Judiciary have their own broad spheres of operation. It is, therefore, important that these three organs of the State do not encroach upon the domain of another and confine themselves to their own, otherwise the delicate balance in the Constitution will be upset and there will be a reaction”

Parliament has accused the judiciary of frequent intervention in its policy making. The court needs to understand the significance of the difference between “judicial activism/judicial review” and “judicial overreach”. When the Hon’ble Supreme Court in the case of Swaraj Abhiyan-(I) v. Union of India⁶³ instructed the ministry to set up a National Disaster Management Fund within three months, the then Finance minister, Arun Jaitley expressed his difficulty in doing so. He also raised concern over India’s budget making being subject to judicial review⁶⁴. Then comes the infamous Supreme Court Advocates on Record v. Union of India⁶⁵, which declared the entire National Judicial Appointments Commission (NJAC) Act as unconstitutional as it was violating judicial independence. This judgment raised many concerns and was criticized a lot. Glaring instances like police reforms case⁶⁶, Gujarat fake encounter case- where CBI’s role was usurped, sealing of unauthorised commercial operations in Delhi, creation of Monitoring Committee to oversee unauthorised constructions in Chennai, holding that presidential proclamation which dissolves the assembly is subject to judicial review, power to restore the State government if that order was ulra vires, appointment of temporary speaker and convening assembly in Jharkhand, dissolution of Bihar assembly, giving judicial powers to a body created by it (Central Empowered Committee) or creating High powered committees, passing of quasi-legislations in cases like Vishaka v. State of Rajasthan⁶⁷ , usurping the functions of TN public service commissions in recruitment of District Judges and so forth.

Indeed, the judiciary like everyone has two faces. The predominance of judicial review and fundamental rights is always necessary, but to what extent could the judiciary go. We have no answer. Parliament has to follow this imaginary lakshmana rekha, in fact every citizen, rule, order, statute, policy, appointments, and etcetera come under the ambit of the inevitable judiciary. But who is there to check on the judiciary?

VII. The invincible judiciary

Judicial review is often considered to be the bête noire of democracy as it impliedly expresses a mistrust of the elected representatives⁶⁸. It is often criticized as a counter-majoritarian force and its legitimacy in a democratic society has always been a matter of public debate⁶⁹.In England, they have a different approach. Unlike in the USA and India, the powers of the judiciary are very restrictive only to the extent of interpretation of legislature. The democratic process is hardly perfect and, in any case, the democratic objection is itself problematic when what is at stake is the tyranny of the majority⁷⁰. Thomas Jefferson stated that judicial review is a ‘very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy’⁷¹.

What do you mean by democracy? To be precise; direct democracy. Whether the constitution is written or unwritten there are some fundamental requirements to be followed. Regardless of the type of the constitution, it is a fundamental right for the citizen to participate in the process of enacting the law through his representatives. The actual allegation against the judicial review starts from here. An unelected body representing the fate of a legislature made by an elected majority government is not convincing. The criticism of judicial review also rests on the apprehension that the Constitution would become soft dough in the hands of the judiciary, which could shape and twist it into whatever form the judges desired⁷². Another significant question is whether the government understands the rule of law to mean the same as that understood by judiciary.

A claim for judicial review is a claim against the government. The judicial review is also an important element in maintaining the rule of law. Without it, the state would be inching towards totalitarianism. Its existence makes us take shelter under the umbrella of rule of law. Though the actual duty of the judiciary is to uphold the ‘will’ of the people, while applying this discretionary power the court may not coincide with what most people like or think.

Is judicial review appropriate? If empirical analysis of legislative product cannot elaborate the proper scope of direct democracy, then perhaps scholars can design a process that checks bad majoritarian tyranny while still permitting popular majorities to bypass corrupt or unresponsive legislatures⁷³. This was proved in many instances. The power of judicial review per se does not allow the judges to strike the law. It actually confers a power to strike the law which is ultra vires to the spirit of the constitution. Ultra vires has been described as ‘the juristic basis of judicial review’⁷⁴. The court must do so. Judges do not act at their own whims and fancies. The concept of judicial review also vests some responsibility on the judges. The constitutional effect of a judgment is always considered. One of the striking examples of that is the application of prospective overruling. The power of judicial review shall not create a parallel government but checks the legislature to act within its limit.

VIII. Dissenting opinion and judicial review

The proposition to establish a separate and distinct judicial wing of the state equipped with the power of judicial review, accountable for upholding the constitution as the supreme law of the land, is a unique American contribution to political theory⁷⁵. In the early twentieth century, many constitutional democracies around the world started adopting judicial review. The origin of the dissenting opinion date back to the 15^th century in Spain. They called it ‘voto reservado’. Australian, Belgian, French, and Italian courts are exceptions. Roscoe Pound, proposed for four different types of dissent, namely the reargued action, the reconnaissance dissent, the cautious dissent, and the exploratory dissent⁷⁶. A Privy Council never had a dissenting opinion. Justice Mukund Ramroa Jayakar was a member of the Privy Council, once wanted to give a dissenting opinion but was forced to give an opinion which he did not believe.

Dissenting opinion is a product of judicial independence, which is essential while exercising judicial review. The practice of writing dissent, we found has, two significant features: one, it acts as an intra-organ control within the institution of judiciary and hence it is a part of constitutionalism and, two, it is intrinsically related to the concept of judicial independence⁷⁷.

Dissenting opinion is the separate judicial opinion of an appellate judge who disagreed with the majority’s decision explaining the disagreement. In the infamous fundamental rights case, six judges gave individual dissenting opinions. Dissent is a unique way of expressing one’s view. While giving a dissenting opinion, a judge goes beyond the jurisdiction of an issue and expresses larger implications of it. They go beyond the legal implications of society. Apart from the difference of opinion among brother judges, dissent brings out a true personality of a judge. A judge constructively criticizes the issue before the court. Circuit Court Judge Harold Medina explains thus, ‘The reasons the judges react as they do to the various phases of this decisional process that I have been describing is that each appellate judge comes to have a certain point of view with respect to the way each case should be decided, and he struggles with that. He would not do that if the answers were always clear, but they are not. Because the answers are always difficult to come by⁷⁸’.

Dissenting opinions are sometimes recognized by the legislature. The dissenting judgements which were given in the early 1950’s and 1960’s had become a stepping stone towards Fundamental Rights in the later years. The Constitution of India contains Article 145 which confers the power to write dissenting opinion by the judges. The Hon’ble Supreme Court is not bound by its own decisions, is it not an extension of dissenting opinion?. Justice P.S. Kailasam’s dissenting opinion was heavily criticized in the case of Maneka Gandhi v. Union of India⁷⁹. Here, his lordship failed to comprehend the importance of the ‘golden triangle’ rule. This would imply that he upheld the theory of mutual exclusivity, propounded in A.K.Gopalan⁸⁰ and Bank Nationalisation cases⁸¹. Justice Subba Rao’s dissent in the case of New Maneck Spinning v. The Textile Labour⁸² paved a way for the creation of the Payment of Bonus Act, 1965, and the government also adopted his line of argument that the payment of minimum bonus is irrespective of profit or loss of employer⁸³.

The opinion of Justice Fazal Ali given in A.K.Gopalan’s⁸⁴ case was utilised in Maneka Gandhi’s⁸⁵ case. He was a great dissenter, gave an outstanding interpretation of the word ‘due process of law’. He pointed out the actual difference between the American constitution and the Indian constitution. The word ‘procedure established by law’ was in question. It was adopted from the Japanese Constitution. A committee of 24 Americans took an effort to draft few provisions of the Japanese constitution in which they purposefully omitted using “due process of law’ instead stuck with ‘procedure established by law’ as a consequence of Lockner v. New York⁸⁶. A dissenting opinion given by Justice Hidayatullah in the case of Naresh Shridhar Mirajkar v. State of Maharashtra⁸⁷ had raised doubts on the majority opinion. In a decision in Radheyshyam Khare v State of Madhya Pradesh⁸⁸ (1959), Justice K Subba Rao dissented from the remaining four judges on the aspect of the principle of natural justice to be scrupulously observed in deciding the validity of administrative actions. Ten years later, in 1969, this view received judicial sanction by a five-judge bench in AK Kraipauk v UOI case⁸⁹.⁹⁰Justice H.R.Khanna’s dissent from the majority in ADM Jabalpur case needs a special mention. It did become a law through the Forty-Fourth Constitutional Amendment Act, 1978. His dissent cost him the position of Chief Justice of India. The case was heard by a constitution bench during the emergency period. There is an interesting anecdote worth mentioning. Justice H.R.Khanna shot a straight question to Niren De (the then Attorney General of India) whether there would be any judicial remedy if a police officer because of his personal enmity killed another man. Niren De without batting an eye replied, ‘No’.

Dissenting opinion as a judicial disagreement comes within the bench and makes it a viable and accountable organ while exercising judicial review. A dissenting opinion is never a hurdle. It is only a starting point. When there is no dissenting opinion, it would be difficult to overrule the judgement at a later point of time (for instance when heard by a larger bench). Providing a transparent opinion on a matter is a fundamental element of the democracy and the apex court is no exception to it.

IX. Constitution and school of thoughts

As mentioned above, the power of judicial review was not specifically mentioned in any of the Articles of the Constitution. Looking at essence of the constitution deriving by reading Articles 13, 32, 131-136, 143, 145, 226, 227, 246, 251, 254 and 372( to an extent). The evolution of judicial review could be seen from the First Amendment Act, 1951 itself. The Constitution of India took many forms. It underwent a dramatic modernisation. Furthermore, starting from 1950’s, the interpretation of the constitution had different schools of thought set forth by various judges.

Indeed, the Supreme Court did face a series of events where the fundamental rights of the petitioners were infringed and the question of amendment to the constitution took some turns. Apart from this, there are also other judgements where the judiciary had to look beyond a statute which is completely in contrast to its 1950’s and 1960’s approach where it stuck to the law. But there are also few instances where the judiciary tried to demonstrate its dominance in a ‘subtle’ way. We can witness such acts from the cases like Supreme Court Advocates on Record v. Union of India⁹¹ , where the Ninety Nine Constitutional Amendment, 2014 empowered the central government to appoint the National Judicial Appointment Commission (NJAC) was struck down. In Epuru Sudhakar’s⁹² case, the court held that a presidential pardon is subjected to judicial review.

It is very important to know how judges think and which school of thought they follow. Judges like Krishna Iyer and P.N Bhagawati had followed the Socialist school of thoughts where they largely sided with the underprivileged. Apart from this, there is the originalist school, the activist school, the natural environment school, the economic school. The judges had different thought processes derived from various types of jurisprudence. While dealing with the judicial review we cannot rule out the evolution of the Constitution. There were many judgements where the apex court completely parted away from the old school of thought by giving a moral, liberal, secular, and optimistic touch.

X. Conclusion

Constitutional morality, apart from its own intrinsic importance, is a subject on which B.R.Ambedkar spoke with insight and eloquence in the Constituent Assembly⁹³. Upholding the constitutional ethics and judicial values is essential to an individual to safeguard his fundamental right and hence subjected to judicial review. Recently, there has been a significant change in the sphere of constitutional morality. In the case of Navtej Singh Johar & Ors v. Union of India⁹⁴ (annihilation of Sec 377), Justice Rohinton Nariman compared fundamental rights with north star and held that constitutional morality always trumps any imposition of a particular view of social morality by shifting regimes. There were many instances where the apex court concentrated on the constitutional morality principle. Starting with Shayara Bano v. Union of India⁹⁵ (Triple Talaq case), Indian Young Lawyers Association and Ors v. State of Kerala (Sabrimala Temple case)⁹⁶, Joseph Shine v. Union of India⁹⁷ (marital infedility case) and so forth.

Though the judicial review is an implied power vested in the constitution it is not a panacea for all ills. A judge could either be ‘a good man not obeying the law too well’ or as Justice Cardozo famously puts it, ‘a knight errant roaming at will in pursuit of his own ideal of beauty or goodness’⁹⁸. This power further places the onus on the Supreme Court to exercise it with the responsibility to cherish the working of the Indian democracy⁹⁹.

It is difficult to grasp the aura of judicial review. People come to the court expecting to enforce the constitution to its fullest capacity but in reality, it doesn’t work that way. There are numerous doctrinal hurdles in the way. The overall subject of judicial review is itself ambiguous. Theoretically, it sounds good but in reality, it takes a huge amount of time to calm the tussle between the executive and judiciary. It may create more problems than it solves. Every case that comes to the court resembles the failure of the draftsman. Litigation allows the judiciary to simplify a codified law by way of is precedents.

It would keep the legislature on the fore front. Here the legislature never becomes a threat instead it becomes a mode through which people speak. Alexander Hamilton in Federalist Paper 78 (1788) expressed that without the power of judicial review, all reservations of rights and privileges would amount to nothing. Hamilton concluded: “No legislative act, therefore, contrary to the Constitution can be valid . . . [T]he interpretation of the laws is the proper and peculiar province of the courts. A constitution is . . . a fundamental law. It therefore belongs to [judges] to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body¹⁰⁰.

Constitutional democracies like the Netherlands and Britain do not practice judicial review. Few democracies have separate ‘constitutional courts’. Even before the basic structure doctrine became a part of constitutional law, the importance of the separation of powers were upheld¹⁰¹. In view of the above submission, it is submitted that judicial review is being successfully practised in India et continues.

Fiat justitia ruat caelum….

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