Judicial review and constitutional choices made by the court

SYNOPSIS:

The members of LAWyersClubIndia had a great opportunity of attending and organizing a webinar session with Mr. Pallav Shishodia. In the webinar, sir talked about various topics revolving around 'Judicial review and Constitutional choices made by the court”. Sir himself is a very established, knowledgeable, and experienced advocate and has been practicing in the Supreme court for over 30 years. His knowledge of the subject helped people to understand judicial review more closely. He explained several aspects of judicial review and how the constitutional choices made by the court are dynamic and fungible.

INTRODUCTION:

Pallav sir is a very senior advocate who has been practicing in the Supreme court for the past 30 years. He has also worked in Rajasthan and Bombay high court in chambers of former Solicitor General of India, Mr. G N Vahanvati. In Delhi, Mr. Pallav is also closely associated with Mr. Ashok Desai who is also a former Solicitor General of India. He has dealt with several important constitutional cases like Justice Loya case, ArunaShanbaug case, and many more.

He went on to explain what exactly judicial review means. According to sir, it is the judicial determination by a constitutional court of legislative enactments and executive actions. He mentioned the ways through which the courts have made constitutional choices in the course of judicial review over the years. He also quoted a senior United States Supreme Court Judge who said 'We're not final because we're infallible, but we're infallible because we're final'. He also talked about the evolution of judicial review over the years and how it has become a key feature of the basic structure of the Indian Constitution. He went on about the facets of judicial review and various constitutional choices made in the course of judicial review. He also talked about the attempts of limiting judicial review and instances where the court exceeded its power of review. He concluded the session by quoting a United States Supreme Court judge, William Douglas.

The session was organized on a video conferencing platform. The session began with a little interaction with the participants where the participants were asked to define 'judicial review' in their own words.

Soon after, Pallav sir took over and started to explain what judicial review means according to him. He defined judicial review as 'judicial determination by a constitutional court of legislative enactments including the constitutional amendments and executive actions'

Then he mentioned the following three ways through which the courts make constitutional choices in the course of judicial review-

• By recreating earlier position
• By reversing an earlier position
• By being equivocal about the earlier position

Sir believes judicial review is a very dynamic process and it can go either way.

He also quoted a judge of the United States Supreme court, who says 'We're not final because we're infallible, but we're infallible because we're final.

To which he explained that the courts are final but only for a time being, it can change its view over time. This fallible finality comes with a plethora of choices, alternate visions, and dynamic changes of view.

In the next segment, sir discussed how the process of judicial review has evolved over the years-

History of western democracies

Magna Carta

First used by a judicial philosopher or jurist in a judgment called Dr. Venhom

Edward Coke 1610

Even the parliament, supreme in all legal matters pass laws that infringe the Fundamental rights which is why there's a requirement of check on that.

Spirit of Laws, Montesquieu, 1748

People back in the time believed that there should be a check on the monarchial power because it can be whimsical or arbitrary and has the power to overrule even the rights of the citizens. Therefore, an authority shall be made to keep a check on their power.

John Adams 1776

John Adams in his famous paper 'thoughts on government' talks about the representation of people in one assembly and all the powers of the government legislative, executive, and judiciary shall be left in this body. It is like giving the absolute power of a Kinginto asingle body. Whereas in a democratic, there should be more like a republican system which should have three separate branches or arms. 

Article VI, US Constitution 1778

Article 6 of the US constitution says that the laws made under the authority of the United States shall be the supreme law of land and judges in all the states must be bound by it. It gave supremacy to the constitution and laws under the constitution but the validity of these laws must be decided by the judges only and that is a part of judicial review.

Marbury v Madison case (1803)

In this landmark case, the idea which was very strongly established was that the Supreme court or judicial review can override the validity of a law enacted by the legislation and validity of any action by the executive which is outside the boundary of law. Also, there should be an authority to keep a check on other institutions for any wrong action taken by them.

According to sir, all these western democracies gave rise to the following ideas-

1. Democracy v Republic state
2. Three arms of State- Legislative, Executive and Judiciary
3. Separation of power and check and balance relationship

Sir also believes thatjudicial review in India has changed drastically after the country got independence.

Before Independence, India had Judicial review but it was particularly in cases of inter-party disputes, taxation disputes, or criminal cases. Whereas, after independence India became a welfare state and a democratic republic.

Today, thousands of cases are in the courts where citizens have claimed their fundamental rights. Therefore, Judicial review has become a key feature of the basic structure of the Indian Constitution (Keshavanada Bharti v State of Kerala).

Sir also explained how judicial review became one of the basic features of the constitutionwith the help of these landmark judgments.

Shankari Prasad v Union of India AIR 1951 SC 458

In this case, it was held by the Supreme court that an amendment to the constitution is not a law as we understand in Article 13 of the constitution and therefore it is not subjected to Judicial review.

Sajjan Singh v State of Rajasthan AIR 1965 SC 845

It said that Fundamental Rights given to citizens can be amended as the constitution is enacted by a constituent body which is directly elected by the citizens of the country. Therefore, amendments in fundamental rights cannot be challenged for judicial review.

I.C Golak Nath v State of Punjab AIR 1967 SC 1643

The Supreme court overruled both Shankari Prasad and the Sajjan Singh case and found that amendment to the constitution is open to judicial review like any other law made by the legislative assembly. Also, the Fundamental Rights cannot be amended at all.

Keshavananda Bharti case

In this case, it was established that the constitution can be amended but not the basic structure.Also, the constitutional amendments are open to judicial review, and any law in contravention of the basic structure can be struck down by the court.

In Minera Mills Ltd V Union Of India case, the amendment of Article 31 (C) of the Constitution was declared unconstitutional as it hinders the balance of power among the three wings of the state.

Hence, Judicial Review became one of the key features of the Basic Structure of the Indian Constitution.

Then, sir discussed the following features of judicial powers- 

• Judges are appointed by nomination and are not subjected to an election. They do not have to seek any popular acceptance or vote which is why they are not answerable to any vote bank.
• Security of tenure and removal only by impeachment. The judges are appointed for life and their removal can only be done through the process of impeachment.
• Most of the Judges have a background of a Jurist or Lawyer. They're very well acquainted with the law and have high intellect.
• They're only accountable to the constitution and rule of law.
• They don't have to take any policy initiatives, execution machinery and they've no concern with any political agenda.
• Their primary duty is to check against abuses by other organs of the state. It is done to protect the interest of the citizens.
• The Supreme court is the final arbiter and as it is said that 'The constitution means what the Supreme court says it means' is also true in the case of India.

Sir also mentioned various facets of judicial review, some of which are as follows-

• All constitutional amendments are subject to Judicial Review.
• Even the actions of high constitutional functionaries like Speaker or President and Governor are subjected to judicial review.
• All legislative enactments are subject to Judicial review.
• All tribunals, adjudicatory bodies subject to Article 32,226, and 227 cannot substitute the Supreme court and High courts as theyarean essential and integral part of Judicial review. They might not be in the jurisdiction of the High court.
• All administrative actions are also subjected to Judicial review.
• Another peculiar feature of Judicial review is that PIL, locus, and procedures facilitate easy access to Judicial review.

Pallav sir cited the following cases where constitutional choices through judicial review were made by the court-

Naz Foundation v Govt. of NCT of Delhi (2009)

The Delhi high court declared that Section 377 of IPC violates Article 14,15 and 21 of the Indian Constitution which was reversed by the Supreme court in the year 2014. The Supreme court said that the parliament should take the call for amending or repealing any existing laws and it is not the concern of the court.

Yusuf Abdul Aziz v State of Bombay

In 1954, Section 497 of IPC was held constitutionally valid and was considered as a special right given to women under Article 15(3) of the constitution.

But later in Joseph Shine v UOI 2019, sexual autonomy and privacy even in adultery was considered only a moral wrong and not a crime. Therefore, Section 497 was considered unconstitutional.

Sabrimala case

In Indian Young Lawyers Association v State of Kerala, the five judges bench gave a verdict with a majority of 4:1 in 2019 which later was referred to another bench of seven judges. This time the minority rose by 1 and the verdict was in support of the minority by a ratio of 3:2.

This proves how fungible or dynamic Constitutional choices are.

There have been various attempts to limit judicial review-

Constitutional Amendments

Through 42nd Amendments wherein the power of the court to judicially review constitutional amendments was taken away. This would have given complete power to the Parliament.

Appointment process

The government tried to limit the judicial review process by catching hold of regulation, appointment, and transfer of Judges according to their wish.

Curtailment of Liberties

Preventive detention is done for prevention or peace in the state.

Laws to restrict Judicial review

The legislature time to time keep sending the laws to the 9th schedule to make them immune from judicial review, laws made, and added to the 9th Schedule for regulating Judicial review process was questioned by the court.

Self-restraint

Self-restrain of Judges and reserve themselves from deciding into a particular matter.

The courts have also exceeded their power of judicial review in the following ways-

Judicial legislation

In Vishaka and others v State of Rajasthan, the Supreme court made regulations for regulating the incidents of sexual harassment in the workplace.

Creation of Levies and Fund

Compensatory Afforestation Fund (CAMPA) was launched by the Supreme Court for promoting afforestation.

Stalled Development

Narmada BachaoAndolan v Union of India 2000 SSC 664. The cleaning or development of the river was stopped by the court.

Adverse Economic Impact

Matters like 2G license affected the Telecom industry very badly and Coal allocation went on for years causing a major loss to industry and banks.

Independent power Structure

Court Monitored investigation carried out from time to time. Like in Hawala case where numerous politicians of the country were involved.

Heroism of Judges

6000 Suo-moto cases were taken by the Chief Justice of Pakistan who was also referred to as Khalifa Judge. She was removed by the president because of not respecting international treaties with other countries. Another Pakistani Judge would take charity for the building of water damns from the appellants.

While concluding the session, Pallav sir quoted William O. Douglas, who is a very reputed judge in the US supreme court for over 35 years. Judge William in one of his books said that 'You must remember one thing that at the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections”.

Sir also said that the judicial review is a continuous and dynamic process and the constitutional choices made by the court are final but only for the time being. 

With this thought-provoking expression he concluded his talk and welcomed participants to ask questions and queries.

• The first question came from Priyanshi who asks, 'If a petition gets filed in the supreme court seeking directions to be issued to the government of India to impose sanction to China for violating the international treaties and convention. Could this petition be in the purview of a judicial review? I believe that policy matters cannot be subjected to judicial review in the supreme court, is that correct?

Sir considers that it is a very debatable issue and there are several principles attached to it. First, the sanctity ofthe constitutional mandate of an international treaty. Also, all international treaties are treated as a part of the law. So, an active court may or may not entertain the petition and the petitioner may or may not get relief. This case clearly states the point that judicial review is so open and fungible.

• Another participant Nivedita has asked how to differentiate between judicial activism and judicial outreach? Isn't judicial activism a necessary evil when the legislators throw away their responsibilities?

Sir believes that there is no absolute answer to the question as distinction lies in the personal opinions of people and it is very subjective. Sometimes, the judges are criticized for being overactive and the other times for not performing the duties they are supposed to.

Pallav sir provided an extensive overview of the process of judicial review and the constitutional choices the courts make. Sir also helped us in understanding that the constitutional choices are final but only for the time being and it's a very dynamic process. It was an honor to have such an interaction with Pallav sir and the members at LAWyersclubIndia thank him for his time and support.