I. INTRODUCTION

The Indian Constitution, like other written Constitutions, follows the concept of “Separation of powers” between the three sovereign organs of the Constitution. The doctrine of separation of powers stated in its rigid form means that each of the organ of the Constitution, namely, executive, legislature and judiciary should operate in its own sphere and there should be no overlapping between their functioning. The Indian Constitution has not recognized the doctrine of separation of powers in its absolute form but the functions of the different organs have been clearly differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ of the functions that essentially belongs to another(1). Though the Constitution has adopted the parliamentary form of government, where the dividing line between the legislature and the executive becomes thin, the theory of separation of powers is still valid(2). This separation of power has given almost an exclusive right to the “Judiciary” to enunciate on matters pertaining to various adjudications and disputes. Thus, the judicial review power has been conferred upon the judiciary by the founding fathers of the Constitution by making it autonomous and independent.

II. INDEPENDENCE OF JUDICIARY

Even though the Constitution of India does not accept strict separation of powers, it provides for an independent judiciary with extensive jurisdiction over the acts of the legislature and the executive(3). Independent judiciary is the most essential attribute of rule of law and is indispensable to sustain democracy. Independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the judges but also to the people at large who seek judicial redress against perceived legal injury or executive excess. Judicial review is the basic structure, independent judiciary is the cardinal feature, and an assurance of faith enshrined in the Constitution. The need for independent and impartial judiciary is the command of the Constitution and call of the people. The subordinate judiciary is a complement to constitutional courts as part of the constitutional scheme and plays a vital part in dispensation of justice. Thus, subordinate courts are integral part of the judiciary under the constitution(4).

III. SCOPE AND COMPONENTS OF JUDICIAL REVIEW

Broadly speaking, judicial review in India comprises of three aspects: judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action. The judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have 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 functions, transgress constitutional limitations(5). Thus, judicial review is a highly complex and developing subject. It has its roots long back and its scope and extent varies from case to case. It is considered to be the basic feature of the Constitution. The court in its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens’ rights of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime(6).

IV. TYPES OF JUDICIAL REVIEW

The judicial review in India can be classified under the following categories:
(1) Primary and secondary review, and
(2) Direct and indirect review.

(1) Primary and secondary review: The doctrine of primary review is applicable in relation to the statutes, statutory rules, or any order, which has force of statute. The secondary review is applicable inter alia in relation to the action in a case where the executive is guilty of acting arbitrarily. In such a case Article 14 of the Constitution of India would be attracted(7). In relation to other administrative actions, as for example punishment in a departmental proceeding, the doctrine of proportionality is equated with Wednesbury’s unreasonable(8).

(2) Direct and indirect review: This form of review is most important and frequently used by the courts in India while judging the constitutionality of various statutes. In the “direct review” the court overrides or annuls an “enactment” or act of “executive” on the ground that it is inconsistent with the Constitution. In the “indirect review”, while considering constitutionality of a statute, the court interprets the statutory language in such a manner that the element of unconstitutionality attached with it is eliminated and the statute survive the attack of unconstitutionality. This may be done in the following two manners:
(a) Using the doctrine of reading down, and
(b) Using the doctrine of severability.

(a) Reading down: An effective tool in the hands of judiciary, to test the validity of legislation, is to invoke the principle of “reading down”. The rule of reading down a provision of the law is now well established and recognized. It is a rule of harmonious construction in a different name. It is resorted to smoothen the crudities or ironing the creases found in a statute to make it workable. In the garb of reading down, however, it is not open to read words or expressions not found in it and thus venture into a kind of judicial legislation. The rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. It is to be used keeping in view the scheme of the statute and to fulfill its purposes(9). In B.R.Enterprises v State of U.P(10) the Supreme Court observed: “First attempt should be made by the courts to uphold the charged provisions and not to invalidate it merely because one of the possible interpretation leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted. For this, the courts have been endeavoring, sometimes to give restrictive or expansive meaning keeping in view the nature of the legislation. Cumulatively, it is to sub serve the object of the legislation. Old golden rule is of respecting the wisdom of the legislature, that they are aware of the law and would never have intended for an invalid legislation. This also keeps the courts within their track and checks. Yet inspite of this, if the impugned legislation cannot be saved, the courts shall not hesitate to strike it down. Here the courts have to play a cautious role of weeding out the wild from the crop, of course, without infringing the Constitution. The principle of reading down, however, will not be available where the plain and literal meaning from a bare reading of any impugned of any impugned provision clearly shows that it confers arbitrary or unbridled power”

(b) Severability: The doctrine of severability separates the unconstitutional part and keeps the statute alive. If, however, the offensive portion cannot be separated then the entire statute has to be struck down as unconstitutional. It is further trite that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation(11). These changed circumstances may also create a vacuum in the legal system, which has to be suitably filled up by the legislature. If the legislature fails to meet the need of the hour, the courts may interfere and fill-in the vacuum by giving proper directions. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field(12). These directions may also include a direction to severe the offending portion of the statute which was originally constitutional to keep it alive.

V. CONCLUSION

The Constitution of India envisages separation of power between the three organs of the Constitution so that the working of the constitution may not be hampered or jeopardized. This thin and fine line of distinction should never be ignored and transgressed upon by any of the organ of the Constitution, including the judiciary. This rigid perception and practice can be given a go by in cases of “abdication of duties” by one of the organ of the Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the legislature or the executive. For instance, if the legislature delegates its essential and constitutional functions to the executives, it would amount to “excessive delegation” and hence abdication of the legislative functions by the legislature. In such cases, the theory of separation of powers would not come in the way of judiciary while exercising the power of judicial review. Thus, the judicial review powers of the Constitutional Courts in India are very wide and flexible in nature.

© Praveen Dalal. All rights reserved with the author.
* Consultant and Advocate, Delhi High Court,India.

(1) Ram Jawaya v State of Punjab, AIR 1955 SC 549, at 556.

(2) P. Kannadasan v State of T.N (1996) 5 SCC 670.

(3) Chandra Mohan v State of U.P, AIR 1967 SC1987, at 1993.

(4) KartarSingh v State of Punjab, (1994) 3 SCC 569, at 736 to 738.

(5) L.Chandra Kumar v U.O.I, (1997) 3SCC 261.

(6) U.O.I v S.B.Vohra (2004) 2 SCC 150.

(7) E.P. Royappa v State Of T.N, (1974) 4 SCC 3.

(8) The famous case Associated Provincial Picture Houses Ltd v Wednesbury Corpn (KB at .229: ALL ER p. 682) commonly known as “The Wednesbury’s case” is treated as the landmark so far as laying down various basic principles relating to judicial review of the administrative or statutory direction.

(9) C.G.E.S v Calcutta Municipal Corporation, 2003(6) SCALE 802.

(10) (1999) 9 SCC 700.

(11) John Vallamattom v U.O.I, (2003) 6 SCC 611.

(12) Vishaka v state of Rajasthan, (1997) 6 SCC 241.