Judicial Review– Advanced analysis

Several Articles in the Constitution, such as, Arts.32, 136, 226 and 227, guarantee judicial review of legislation and administrative action.Article 32 guarantees protection to every person against the alleged violation of his fundamental rights at the behest of any legislative, executive or administrative action through the Supreme Court by way of orders, directions and various kinds of writs being issued by the court against such a violating authority. Similarly, Article 136 confers a plenary power on the Supreme Court to entertain any kind of dispute in its ambit in any matter or cause, whether administrative, judicial or quasi-judicial and that too from any authority or tribunal working in the territory of India so as to afford maximum relief to the aggrieved person to the effect that it has served a great bulwark of democracy and rule of law in the country and nevertheless, a very effective institutional mechanism for the redressal of grievances against the ever rising growth of administrative authorities and their powers in the wake of the advent of a welfare state. Article 226 confers not only similar powers on the High Courts analogous to that of the Supreme Court under Article 32, but even extends it beyond the realm of fundamental rights. And then Article 227 confers plenary power of supervision over all the quasi-judicial like tribunals operating within its territorial jurisdiction so that such authorities do not go awry while exercising their arbitrary powers and thus, a judicial review of their actions becomes a manifest reality…

It can be appreciated that protection of the institution of judicial review is crucially inter-connected with the protection of Fundamental Rights, for depriving the Court of its power of judicial review would be tantamount to making Fundamental Rights non-enforceable, "a mere adornment", as they will become rights without remedy. In the absence of judicial review, the written constitution will be reduced to a collection of platitudes without any binding force. Accordingly, judicial review has been declared to be a basic feature of the Constitution. KHANNA, J., has emphasized the significance of judicial review in Kesavananda in the following wonderful words:

"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 to the people are not contravened... judicial review has thus become an integral part of the constitutional system of our country."

In Minerva Mills, CHANDRACHUD, CJ, speaking on behalf of the majority observed:

"It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts were totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled."

And then finally Justice P.N. BHAGWATI. Observed in the same case:

“It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that the exercise of powers by the government whether it be the legislature or the executive or any other administrative authority, be conditioned by the Constitution and the law. The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution."

BHAGWATI, J., however, went on to say that "effective alternative institutional mechanisms or arrangements" for judicial review can be made by Parliament. But he did emphasize that judicial review is a vital principle of the Constitution and if power of judicial review is taken away by a constitutional amendment, "it will be nothing short of subversion of the Constitution."

According to him, it is not necessary to concentrate judicial review in the courts only such that if alternative tribunals can be set up by the govermenent for the said purpose, they are most welcome to serve a complementary and supplementary role in this regard, but they must be as efficacious and independent as the High Courts are. If they are, then the power of judicial review can undoubtedly be transferred to such tribunals.

In Subhash Sharma v. Union of India, the Supreme Court has asserted that "judicial review is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional policy." This means that the independence of the judiciary ought to be safeguarded. This means that the Chief Justice of India should play the primary role in the appointment of the High Court and Supreme Court Judges and not the executive. The Court has expressed the view that "the primacy of the Chief Justice of India in the process of selection would improve quality of selection." Again, in the case noted below, the Supreme Court has asserted that "the powers conferred on it under Articles 32, 136, 141 and 142 form part of the basic structure of the Constitution."

Relying upon the observation of the Court in several cases earlier, Article 323A has been added to the Constitution by the 42nd Amendment. The Constitutional provision makes it possible for Parliament to set up tribunals for adjudicating upon service matters pertaining to government servants. Under Art.323A(d), Parliament may "exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Art. 136, with respect to the disputes or complaints" assigned for decision to the service tribunal.

In pursuance of Art. 323A, Parliament enacted the Central Administrative Tribunal Act in 1985 to set up a Central Administrative Tribunal to adjudicate upon disputes between the Central Government and its employees in service matters. Originally, the Tribunal was to be subject to the Supreme Court's jurisdiction under Art. 136. The Supreme Court's jurisdiction under Art. 32 and the High Court's jurisdiction under Arts. 226 and 227 were to be excluded. The constitutional validity of Art. 323A as well as that of the Administrative Tribunal Act came to be questioned before the Supreme Court in S.P. Sampath Kumar v. Union of India.

The Court upheld both subject to certain modifications being introduced into the Act in question. The Supreme Court however made it clear at the earliest opportunity that it would not accept exclusion of its own jurisdiction under Art. 32 and, accordingly. Parliament suitably amended the Act to restore this jurisdiction of the Supreme Court. The Supreme Court's jurisdiction remaining intact, the basic question which arose for the Supreme Court's consideration was whether the Constitutional Amendment providing for exclusion of the High Court's jurisdiction could be regarded as constitutionally valid in view of what was said in Minerva. Did it not affect one of the basic or fundamental features of the Constitution?

Delivering the judgment in the above case, the Supreme Court pointed out how in the face of mounting pressure of work on the High Courts which resulted in delayed justice, it became necessary to provide some alternative modes of dispute settlement. Even in Minerva, it was envisaged that "effective alternative institutional mechanisms or arrangements for judicial review" could be made by Parliament.

 As, in the instant case, judicial review by the Supreme Court remains intact, "exclusion of the jurisdiction of the High Courts does not totally bar judicial review". It was thus possible to provide an alternative institution to perform judicial review instead of the High Courts. But the condition was that the proposed tribunal should be a "real substitute", a "worthy successor" of the High Courts in all respects. The Court then proceeded to make a few suggestions for amendment of the Act in question for removal of certain deficiencies in the composition of the proposed Administrative Tribunal so as to make it a real and effective substitute for the High Courts.

In a separate but concurring judgment. BHAGWATI, CJ. agreed with the majority view and categorically observed in this connection:

"The basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangement for judicial review, provided it is not less efficacious than the High Court. Then, instead of the High Court, it would be another institutional mechanism or authority, which would be exercising the power of judicial review with a view to enforcing the constitutional limitations and maintaining the Rule of Law."

Therefore, the current position seems to be that a constitutional amendment transferring from the High Court the power of judicial review in any specific area to any other institution, may not be violative of the basic structure doctrine so long as the essential condition is fulfilled, viz., that the alternative institutional arrangement or mechanism or authority set up by parliamentary amendment is no less effective than the High Court.

Article 371-D was added to the Constitution in 1973 by the Thirty-Second Constitutional Amendment to make special provisions for the State of Andhra Pradesh for providing equitable opportunities and facilities to the people belonging to different parts of the State in such matters as education, public employment, etc.

 Clause 3 of the above provision authorizes the President to appoint an administrative tribunal to exercise jurisdiction, power and authority, including that exercised by any Court, except the Supreme Court, before the commencement of the 32nd Amendment' Act, in respect of matters mentioned in Art. 371-D (3). According to Cl. 5, "the order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order was made, whichever was earlier." A proviso to this clause provided further that the State Government might, by a special order in writing and for reasons to be specified therein. “modify or annul” any order made by the Tribunal before it became effective and in such a case the order of the Tribunal would have effect only in such modified form or be of no effect as might be the case.

The constitutional validity of Clause 5 of the above amendment was challenged before the Supreme Court which was struck down by it as being violative of the basic structure of the Constitution.

 The Supreme Court took great objection to the power of the State Government to modify or nullify a Tribunal decision. The State Government would itself be a party in the dispute on which the Tribunal adjudicated. The Government could not set at naught any Tribunal decision given against it.

Vehemently criticizing the above provision, Justice BHAGWATI. C.J. said in the following words:

"Such a provision is, to say the least, shocking and is clearly subversive of the principles of justice. How can a party to the litigation be given the power to over-ride the decision given by the Tribunal in the litigation, without violating the basic concept of justice? It would make a mockery of the entire adjudicative process...We do think that this power conferred on the State Government is clearly violative of the basic concept of justice."

It was also held as "violative of the rule of law which is clearly a basic and essential feature of the Constitution." The Court also pointed out that for the validity of the constitutional pro-vision authorizing exclusion of the High Court's jurisdiction and vesting it in the Tribunal, it was necessary that the Tribunal "must be as effective an institutional mechanism or authority for judicial review as the High Court". "If the Administrative Tribunal is less effective and efficacious than the High Court in the matter of judicial review in respect of specified service matters, the constitutional amendment would fall foul of the basic structure doctrine." If the State Government, a party to the litigation before the Administrative Tribunal, had power to over-ride Tribunal decision then the Tribunal would be deprived of its effectiveness and efficacy.

Therefore, the proviso to Cl. (5) was struck down as being outside the constituent power of Parliament. Not only that, the whole of CI. 5 was struck down "as unconstitutional as being ultra vires the amending power of Parliament.

Subsequently, in a later case, the Supreme Court by reconsidering its earlier decisions firmly established that the power of judicial review which is vested in the High Courts under Arts. 226 and 227 and the Supreme Court under Art. 32 of the Constitution, is an integral and essential feature of the Constitution, constituting part of its basic structure.

 Ordinarily, therefore, this power of the High Courts and the Supreme Court to test the constitutional validity of the legislation or any administrative action can never be ousted or excluded. Therefore, no constitutional amendment can exclude the power of the High Courts and the Supreme Court to test the constitutional validity of the legislation.

It is the function of the courts "to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. Accordingly, the Supreme Court has declared unconstitutional Cl. 2(d) of Art. 323A and Cl. 3(d) of Art. 323B, to the extent these clauses exclude jurisdiction of the High Courts under Arts. 226 and 227 and of the Supreme Court under Art. 32. The Court has observed in this connection:

"The jurisdiction conferred upon the High Courts under Arts. 226/227 and upon the Supreme Court under Art. 32 of the Constitution is part of the inviolable basic structure of the Constitution. While this jurisdiction cannot be ousted, other courts and tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution."

The Supreme Court has thus ensured that judicial review in an inseparable part of the Constitution, and that it cannot be excluded even by a constitutional amendment. Therefore, the position now is that while tribunals can be created to adjudicate upon various matters, the jurisdiction of the High Courts under Arts. 226/227 and that of the Supreme Court under Art. 32 cannot be excluded even by a constitutional amendment. Subject to these constitutional provisions, the tribunals may perform a supplementary role.

 The weapon of judicial review has been so sharpened by the Courts over the years that not even a finality clause in an Article of the Constitution that might be conferring finality to the actions or decisions of an administrative authority can totally exclude judicial review of the actions and decisions of the concerned authority.

 Although, a finality clause can certainly restrict to some extent the scope of judicial review insofar as the actions falling within the jurisdiction of such an authority are concerned, but those falling outside its jurisdiction are very much reviewable by the courts. The category of 'outside jurisdiction' is quite broad. An action or decision of the authority falls outside, its jurisdiction if –

(i)      It is in contravention of a provision of law conferring power on the authority;

(ii)     It is vitiated by mala fides or is a colourable exercise of power based on extraneous or irrelevant considerations;

(iii)    There is a failure of natural justice and

(iv)    It is based on no evidence.

Although, the above matter falls more appropriately within the realm of Administrative Law yet, according to the modern judicial thinking, the category 'outside jurisdiction' is an ever expanding category so as to bring in more and more administrative processes under the lens of judicial scrutiny…