SCOPE OF JUDICIAL REVIEW

There has been concentration of all powers in the hands of the administration
legislative, executive and judicial. It necessitated the conferring of vast
discretionary power on the administration.
With the growth of discretionary persons of administration, Administrative
Law, has come to be studied as a branch of law, separare, independent and
complete in itself.
The two important aspects of Administrative law are: the control-mechanism over the administrative
the remedies and reliefs available to a person against it when his
legal right is infringed by any of its actions.1
The Courts play a much more meaning role, in these matters, than does either
the legislature or the Administration by itself. It, is, rather, the function of the
Courts to control the administrative authorities, to instill into their working the
fundamental values inherent in the countrys legal order. In order to control and
review administrative action, the Courts have, thus , propounded and developed
various principles for what is required, in the present day context, is to develop
a viable system of Administrative Law, maintaining a balance between personal
rights freedoms on the one hand and administrative needs and exigencies
developing Social Welfare State, on the other.
This is how the principle of judicial review came into force.

Definations
According to Redform, Judicial review is the power of a
court to enquire whether a law, executive order or other
official action conflicts with written constitution and , if the
court concludes that it does, declare it unconstitutional and
void.2
One can find the basis for judicial review in the writings of
Alexander Hamilton, one of the framers of the American
constitution in 1789, in the Federalist. He wrote, The
interpretation of the laws is the proper and peculiar
province of the courts. A constitution is in fact and must be
1 Indian railway corporation Co. LTD v Ajay Kumar , AIR,2003 SC 1843
2 Laxmikanth M, Indian Polity for Civil Service Examinations

regarded by the judges as a fundamental law. It therefore

belongs to them to ascertain its meaning and meaning of an
act passed by the legislature. He further said that if there
was any conflict between the two, that is the constitution
and the law, the judges should prefer the constitution as it
is supreme. This became the basis of judicial review.
The judiciary by using this power keeps the legislative and the
executive organs within the purview of the constitution. Judicial
review is an example of the functioning of separation of powers in a
modern governmental system (where the judiciary is one of three
branches of government).
Judicial review could be understood in terms of two different
legal systems
COMMON LAW SYSTEM
In UK , parliament supremacy
prevails
And therefore judicial review of
legislative acts is not permitted.

THEORIS ON DEMOCRACY
On the other hand in the United
States of America [the US],
Constitutional Supremacy prevails.
Similarly in India the Doctrine of
Separation of Powers has been held
as the Basic Structure of
Constitution and Constitutional
Supremacy established, permits the
review of the legislative acts as
well.3

Judicial Review In India

The system of judicial review is applicable in India.
Although the term Judicial Review has not been
mentioned in the Constitution, the provisions of various
Articles of the Constitution of India have conferred the
power of judicial review on the Supreme Court.4 It
includes writs , appeals , reference to the Courts,
injunctions, declaration suit for damages against the
administration, etc.
3 # http://vishwabhushan.blogspot.in/2011/09/judicial-review-concept-originand.html, 21.10.13
4 Ghai K.K, Indian Government and Politics, pg 220

 Writs are issued by the Supreme Court and the High

Courts under the provisions of Article 32 and 226
respectively. Article 136 contains provision for, grant of
special leave to appeal to the Supreme Court from the
decisions of the tribunals.
Accordingly the constitutional validity of a legislative
enactment or an executive order may be challenged in
the Supreme Court on the following grounds
1. Violation of fundamental rights.
2. Outside the competence of the authority which has
framed it.
3. It is repugnant to the Constitutional provisions.
The Supreme Court considerably widened the scope of
judicial review in India through its judgement in Maneka
Gandhis5 case. In this case, the Supreme Court accepted
the concept of natural justice as one essential component
of law thereby importing the American concept of due
process of law into our Constitution.
In the case of Charanjit Lal v. The Union of India6, Justice
Mukherjee observed: The court should prima facie lean
in favour of constitutionality and should support the
legislation if it is possible to do so on any reasonable
ground. In pursuance of this attitude the Supreme Court
of India has enunciated the doctrine of severability, which
implies that only those portions of the law are declared as
void which are inconsistent with the provisions of the
Constitution and the rest of the law is permitted to
operate. The Courts in India have exercised power of
judicial review with great restraint and attached more
importance to the express words of the Constitution
rather than the spirit of the Constitution.
The debates of Constituent Assembly reveal, beyond any
dispute, that the judiciary was contemplated as an
extension of the Rights and an arm of the social
revolution. Judicial Review was accordingly, desired to be
an essential condition for the successful implementation
and enforcement of the Fundamental Rights. Members of
5Maneka Gandhi vs Union Of India on 25 January, 1978
6 Charanjit Kaur vs Union Of India on 21 January, 1994

Constituent Assembly were agreed upon one

fundamental point that Judicial Review under the new
Constitution of the U.S.A., where the doctrine was more
an inferred than a conferred power and more implicit
than expressed through constitutional provisions. 7
In the Report of the abhor Committee of Supreme Court,
it was recommended that a Supreme Court with
jurisdiction to decide upon the constitutional validity of
acts and laws can e regarded as a necessary implication
of any federal scheme. This was eventually extended to
an interpretation of the laws and executive orders on the
touchstone of the Fundamental Rights. In the Draft
Constitution of India, this power of Judicial Review in
relation to fundamental rights found formal expression in
Art. 8 (2) and Art. 25 (1) & (2) which, when adopted by
the nations representatives in the Constituent Assembly
on November 26, 1949, became the new Arts. 13 (2) and
32 (1) & (2), respectively, under the Constitution of India.
However there was a sharp controversy among the
members of the Constituent Assembly over the
perpetually veered question of reconciling the conflicting
concepts of the individuals fundamental and basic rights
and the socio-economic needs of the nation.
As a result Judicial Review, which was recognized as the
basic and indispensable precondition for safeguarding the
rights and liberties of the individuals, was sought to be
tempered by the urge for building up a new society based
on the concept of welfare and social righteousness. The
consequence was a drastic curtailment of the power of
judicial Review of the Supreme Court of India. What
happened as a result was that the much debated Due
Process Clause, which was previously inserted in the
original Draft Constitution, became the first casualty,
and was eliminated from the purview of the Rights to
Personal Liberty. Under Art. 21 of the new Constitution of
India, it was replaced by except according to procedure

7 Arora Prem, Political Science(Indian Government and Politics) pg 195

established by law, and in Art. 31 (1) it was substituted

by save by authority of law.8
Simultaneously with this new awakening, a cluster of
provisions was incorporated into the constitutional
document so as to restrict the rights envisaged in Arts.
19, 21, and 31, and reduce the Supreme Courts power of
Judicial Review to one of formal review. Lest Judicial
Review stood in the way of social and economic progress,
the door was kept wide open, through a comparatively
flexible amending procedure, to impose the ultimate will
of the popular representatives in the matter of removing
constitutional limitations
The foundation of the Indian Supreme Courts Reviewpower was laid firmly and well in the case of A.K. Gopalan
v. State of Madras. This case not only elucidated the
principle of Judicial Review and the basis on which it
would rest in future, but at the same time evolved a set
off guidelines which would eventually set the pattern for
the fundamentals of judicial approach to the Indian
Constitution. Form Gopalan to Golaknath is, indeed, a
long march, not only in respect of the nature and scope of
Judicial Review itself, but in regard to the impact and
consequences of such Review on the attainment of social
objectives, too.
The Supreme Court of India has used the power of judicial
review in various cases. We may refer to the Golaknath
case (1967), the Bank Nationalisation case (1970), the
Privy Purses Abolition case (1971), the Keshwananda
Bharti case (1973), the Minerva Mills case (1980) and so
on. However while exercising the power of judicial review,
the Supreme Court has never adopted the American
practise as it is.
One of the most significant cases decided by the
Supreme Court was Golakhnath case of 1967in which the
Supreme Court held that the Parliament has no right to
abridge or abrogate the Fundamental Rights granted by
the Constitution through an amendment of the
Constitution. Thus it made the Fundamental Rights

8 http://www.legalservicesindia.com/article/article/judicial-review-in-india-andusa-1734-1.html

transcendental and superior to the constituent power of

the Parliament through its power of judicial review.
During the emergency a bid was made to restrict the
scope of judicial review through the Forty-Second
Amendment. The power to determine the constitutional
validity of the central laws was exclusively vested in the
Supreme Court and the High Courts were deprived of
their right in this regard.
The Janata Government on assumption of power made a
bid to restore the powers which were taken away from
the judiciary during the emergency.by the Forty-Third
Amendment passed in December 1977 it restored to the
Supreme Court pre-emergency position with regard to
power of judicial review over the laws passed by the
Parliament as well as the State Legislatures.
As a result of the Supreme Court judgement of March
1994 in the case of S.R.Bommai and others v. The Union
of India, also known as Assembly dissolution case, the
scope of judicial review was further widened. In recent
years the judiciary has further widened his field of
operation by declaring judicial review as a basic feature
of the Constitution. Thus the Supreme Court in India has
not merely interpreted the language of the Constitution
but also pronounced on issues which involve matters of
policy.

WRIT JURISDICTION
The system of writs has been designed under Articles 32 and
226 of the Indian Constitution. Article 32(1) guarantees the
right to move to the supreme court, for enforcement of
fundamental rights. Article 32(2) empowers the Supreme Court
to issue directions or order of writs, including writs in the
nature of habeaus

corpus,mandamus,certiorari,prohibition,quo-warranto and
certiorari.
Article 226(1) empowers every High Court, notwithstanding
anything in Article 32, throughout the territories in relation to
which it exercises jurisdiction, to issue to any person or
authority, within those territories , order of writs.

Scope of Article 32
Article 32 not only provides a guaranteed remedy for the
enforcement of Fundamental rights but makes this remedial right
itself a Fundamental Right by including it in Part III of the
Constitution. The supreme court is the protector and guarantor of
Fundamental rights.

Scope of Article 226

The writ issuing power conferred on the High Courts under Article
226 can be exercised to enforce not only a Fundamental right but a
non-fundamental right as well. In this sense the writ jurisdiction
conferred on high court under article 226 is wider than that
conferred on the Supreme Court under article 32. High court can act
even when a legal right is infringed.

Public Law Review

Writ jurisdiction is exercised not only for the enforcement of
Fundamental right but also for the maintaining control over
administrative agencied and adjudicatory bodies. In S.L Kapoor
v.Jagmohan 9, where writ petition had been filed before delhi high
court. In the case two of the non-official members of the New Delhi
Municipal Corporation had filed an appeal before the supreme court
under Aritcle 136 challenging the validity of the government action
by which the Corporation was superseded without complying with
the principles of natural justice. While the appeal was in
consideration the term of the members had been appointed expired.
Thus, they apparently lost standing to continue with the appeal.
Nevertheless, the Supreme Court held that since it is a matter of
public importance, the Court can still decide the issue even in the
case of loss of standing of the petitioners.
9 AIR 1981 SC 136

1. WRIT OF CERTIORARI:
The term of the old writ was that of a royal demand to be informed
(certiorari) of some matter, and in early times it was used for many
different purposes.
Wherever anybody of persons having legal authority to determine
questions affecting the rights of subjects and having the duty to act
judicially, act in excess of their legal authority, they are subjected to
the controlling jurisdiction of the Kings Bench Division exercised in
these writs.
According to the above statement the conditions are :
i.
ii.

body of persons having legal authority to determine question;

the determination must affect the rights of subjects;

iii.

having the duty to act judicially;

iv.

Act in excess of their legal authority.

The most controversial condition was the requirement of acting

judicially. It was interpreted as an additional requirement apart from
affecting the rights by Lord Hewert This was confirmed by the Privy
Council. Our courts also adopted this interpretation. In England this
confusion was cleared by Lord Reid in the landmark decision of
Ridge v. Baldwin10. Lord Reid reinterpreted Atkin LJ's words about
the duty to act judicially. Accordingly it was not additional condition
but a qualification of the earlier condition. Therefore, acting judicially
means acting fairly where the determination affects a person's
rights. This interpretation has extended the writ to administrative
actions also which of course affect his rights.
In A.K.Kraipak v. Union of India11, the Supreme Court accepted
Lord Reid's interpretation and held that distinction between quasijudicial and administrative has become thin but it is not completely
obliterated for other purposes. Therefore, since Kraipak a new trend
has emerged in the expanding horizon of the writ of certiorari in
India to control the administrative actions. It applies not only to legal
10 1964 AC 40
11 AIR 1970 SC 150

authority but also to any agency or instrumentality of the state who

acts arbitrarily in violation of law or Constitution. The broad
grounds for issuing
the writ are:
i.
ii.
iii.

Lack or excess of jurisdiction

Violation of the principles of natural justice
Error of law apparent on the face of the records

The writ of certiorari is an important remedy to quash a decision of

any court, tribunal or administrative authority if it acted ultra vires
their powers.
2. WRIT OF PROHIBITION
The Supreme Court said: Both the writs of prohibition and certiorari
have for their object the restraining of inferior courts from
exceeding their jurisdiction and they could be issued not merely to
court but to authorities exercising judicial or quasi-judicial functions.
Since these decisions the scope of prohibition has expanded and it
lies against the administrative authorities also. Lord Denning said,
It is available to prohibit administrative authorities from exceeding
their powers or misusing them. In particular, it can prohibit a
licensing authority. From making rules or granting licenses which
permit conduct which is contrary to law. In India, prohibition is
issued to protect the individual from arbitrary administrative actions.
It is an efficacious and speedy remedy where a person does not
desire any other relief except to stop the administrative agency. An
alternative remedy does not bar the issue of this writ. It can be
issued even when the matter is decided to stop the authority from
enforcing its decision. If the lack of jurisdiction is patent, the writ is
issued as a writ of right

3. WRIT OF MANDAMUS
The prerogative remedy of mandamus has long provided the normal
means enforcing the performance of public duties by public
authorities of all kinds. While certiorari and prohibition deal with

wrongful action, mandamus deals with wrongful inaction. These

prerogative remedies, thus, together cover the field of governmental
powers and duties.
Mandamus is issued only when a legal duty is imposed on a public
authority in the performance of which the petitioner has a legal
right. Mandamus would also lie when there is a failure to Mandamus
will not lie when the duty is merely discretionary.
In State of M.P. v. Mandawara12, the Supreme Court held that
granting of Dearness Allowance is discretionary for the Government
and it cannot be compelled by mandamus to grant the same.
However, the court may issue a writ of mandamus where the public
authority has failed to exercise or has wrongfully exercised
discretion conferred on it by a statute or has exercised such
discretion mala fide or on irrelevant considerations. The writ of
mandamus is issued against any court, tribunal or administrative
authority. The Supreme Court has developed a new concept of
continuing Mandamus by issuing directions from time to time and
keep the matter pending, requiring the agencies to report the
progress of investigation so that monitoring by the court could
ensure continuance of the investigation.
4. WRIT OF HABEAS CORPUS
It is a process by which a person, who is confined without legal
justification may secure a release from his confinement. The writ is
an order issued by the High Court calling upon the person by whom
a prisoner is alleged to be kept in confinement to bring him before
the Court to let the Court know on what ground the prisoner is
confined. However, the production of the body of the person alleged
to be unlawfully detained is not essential in modern times.

The rule of standing is relaxed in habeas corpus petition which can

be made by any person on behalf of the prisoners but not an utter
stranger. Application for habeas corpus has to be accompanied by
an affidavit stating the nature and circumstances of the restraint. If
12 AIR 1954 SC 93

the court is satisfied that there is prima facie case, it issues a rule
nisi requiring the opposite party to show cause, on a day specified,
why an order granting the writ should not be made. After hearing
the parties, the court may make the rule nisi absolute or it may
discharge it as the case may be.
The writ of habeas corpus has assumed great importance in the
administrative process as wide powers of detention are conferred on
the administrative authorities in the modern times. The fundamental
right to personal liberty as a human right has further enhanced the
importance of this remedy. The grounds of habeas corpus are the
same grounds of judicial review based on ultra vires doctrine. So if
the detention powers are used mala fide or based on irrelevant or
extraneous considerations or are used in violation of statutory
provisions, the writ of habeas corpus will issue to quash such a
detention. There is no need for a separate certiorari.
The scope of the writ has been further expanded by the Supreme
Court by prohibiting torture or inhuman treatment while in detention
in a prison by the prison authorities. In this respect the law is more
advance in India than prevailing in England where detention
conditions cannot be challenged by habeas corpus
5. WRIT OF QUO WARRANTO:
The writ of quo warranto is issued against the holder of a public
office calling upon him to show with what authority he holds that
office. It is issued against the usurper of an office. The object is to
confer jurisdiction upon the judiciary to control the executive action
in making appointments to public offices and also to protect the
public from usurpers of public offices. The law of standing is relaxed
so that any member of the public can challenge the action by this
writ.The law of standing is relaxed so that any member of the public
can challenge the action by this writ

The following conditions apply:

The office in question must be a public office.

 The office must be substantive in character.

The holder must not be legally qualified to hold the office or to
remain in the office.
The person must be holding the office when the writ is heard.
The writ will not lie in respect of an office of a private nature. The
writ is discretionary in nature and the court may refuse to grant it.
What are the consequences of granting of the writ? Will the actions
of usurper become null and void ab initio? It will depend upon the
nature of disqualification. If the disqualification is of technical
nature, the acts will not be null and void and the principle of de facto
office will be applied to save such actions. However, where defect in
the qualification is fatal, then everything done by him will be null
and void. The benefit of the colour of office will not be available.

SPECIAL LEAVE PETITION POWER OF SUPREME COURT

Clause (1) of Article 136 provides : Notwithstanding anything
contained in this chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgement , decree,
determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory if India.
Article 136(1) confers discretion on the Supreme Court to grant,
special leave to appeal before itself, from any judgement ,
determination, sentence, order passed or made by any court or
tribunal in any cause or matter.

Scope and Object of Article 136

Article 136 confers a wide discretionary power on the supreme
court. Article 136 in the nature of special or residuary power,
exercisable outside the purview of ordinary law, where requirements
of justice demand interference by the Supreme court.

It is an extraordinary jurisdiction vested by the Constitution in the

Court with implicit trust and faith and extraordinary care and caution
has to be observed in the exercise of this jurisdiction. Being
extraordinary jurisdiction, it is meant to be exercised by the
consideration of justice, call of duty and eradicating injustice. 13
The following two conditions must be satisfied for invoking Article
136(1)1. The proposed appeal must be against a judicial or quasijudicial and not a purely executive or administrative order; and
2. The determination or order must have been made or passed,
by any Court or tribunal, in the territory of India.
Article 136 does not confer any right of appeal in favour of any party
as such and it does not that any and every error is envisaged to be
corrected in exercising power under this Article. It is a special power
extraordinary in nature and the main object of conferring power
under Article 136 is to ensure that there has been no miscarriage of
justice.
In Arunchalam v. P.S.R Sadhanantham,14 the Supreme Court
explaining the scope of Article 136 observed :
Article 136 neither confers on anyone the right to invoke the
jurisdiction of the Supreme court nor inhibits anyone from invoking
the Courts jurisdiction is vested in no one. The exercise of the power
of the Supreme Court is not circumscribed by any limitation as to
who may invoke it.
In criminal matters , it has been established that the Supreme Court
would not grant special leave to appeal, unless it is shown thatexceptional and special circumstances exist, substantial and grave
injustice has been done to the applicant or that there are compelling
and substantial reasons for interference.15

13 Mahendra Saree Emporium v. G.V.S Murthy, 2005 (1) SCC 481.

14 1979 (3) SCR 482 (Emphasis

15 Govt of NCT of delhi v. jaspal singh, JT 2003 (7) SC 302.

LIMITATIONS ON COURTS DISCRETION UNDER ARTICLE

136
The Court in S.B. Minerals v. M/s. MSPL LTD.,16 said that the
discretion under Article 136 is not exercised : Where the remedy by way of an appeal or revision is
available against the order; or
Where the subject matter is stale or frivolous or
cantankerous;
Where the stakes or issue involved is so small and negligible,
that grant of leave or even issue of notice, will cost a heavy
burden in terms of expense, time and energy on a poor or
ordinary respondent;
Where the orders do not decide any issue, e.g., orders
admitting a petition/appeal/revision or orders issuing notice
to show cause, why a petition/appeal/revision should not be
entertained; or
Where an order merely adjourns a case.
EXCEPTION TO CLAUSE (1) OF ARTICLE 136
Clause (2) of Article 136 contains an exception to Clause (1). It
provides that nothing in clause(1) shall apply to any judgement ,
sentence or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces.

CURATIVE PETITION
In innovating developing constitutional jurisprudence, the role of
Supreme Court has always been unique. One such example can be
innovation of the concept of curative petition. The constitution
bench in Rupa Ashok Hurra v. Ashok Hurra17, struck balance
between the finality/certainty of judgments/orders of the supreme
court as court of last resort and setting right miscarriage of justice
complained of by holding that petition under Article 32 would not be
maintainable to challenge/quash the final order contained in the
16 AIR 2010 SC 1137.
17 (2002) 4 SCC 388

judgment/order of the supreme court, however, if there is an

apparent miscarriage of justice , petitioner can approach the court
through curative petition.
The petitioner will be entitled to relief:
i.

Violation of principle of natural justice

ii.

Where in the proceedings the judge failed to disclose his

connection with the subject matter or the parties giving
scope for an apprehension of bias and judgment had
adversely affected the petitioner,

iii.

Abuse of court process