Expansion of Judicial Review Through Judicial Activism and Limitation on the Power of Review

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Expansion of Judicial Review through Judicial Activism

  • After the draconian exposition of power by the Executive and the Legislature during Emergency the expectations of the public soared high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions. Likewise, the judiciary has taken an activist view the Beginning with the Ratlam Municipality case the sweep of Social Action Litigation had encompassed a variety of causes.

  • With the interpretation given by it in Menaka Gandhi case the Supreme Court brought the ambit of constitutional provisions to enforce the human rights of citizens and sought to bring the Indian law in conformity with the global trends in human-rights-jurisprudence. This was made possible in India, because of the procedural innovations with a view to making itself more accessible to disadvantaged sections of society giving rise to the phenomenon of Social Action Litigation/Public Interest Litigation. During the Eighties and the first half of the Nineties, the Court have broken their shackle’s and moved much ahead from being a mere legal institution, its decisions have tremendous social, political and economic ramifications. Time and again, it has sought to interpret constitutional provisions and the objectives sought to be achieved by it and directed the executive to comply with its orders.

  • SAL, a manifestation of judicial activism, has introduced a new dimension regarding judiciary’s involvement in public administration. The sanctity of locus standi and the procedural complexities are totally side-tracked in the causes brought before the courts through SAL. In the beginning, the application of SAL was confined only to improving the lot of the disadvantaged sections of the society who by reason of their poverty and ignorance were not in a position to seek justice from the courts and, therefore, any member of the public was permitted to maintain an application for appropriate directions.

  • The new role of the Supreme Court has been criticised in some quarters as being violative of the doctrine of separation of powers; it is claimed that the Apex Court has, by formulating policy and issuing directions in respect of various aspects of the country’s administration, transgressed into the domain of the executive and the legislature. As Justice Cardozo puts it, “A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.” It is with this view that innovations in the rules of standing have come into existence.

Limitation on the Power of Review

  • The expansion of the horizon of judicial review is seen both with reverence and suspicion; reverence in as much as the judicial review is a creative element of interpretation, which serves as an omnipresent and potentially omnipotent check on the legislative and executive branches of government. But at the same time there is a danger that they may trespass into the powers given to the legislature and the executive.

  • One many say that if there is any limitation on judicial review other than constitutional and procedural that is a product of judicial self-restraint. As justice Dwivedi empathically observed, “Structural socio-political value choices involve a complex and complicated political process. This court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the court’s structural value choices will be largely subjective. Our personal predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of rule of law.”

  • The above observations also reveal another assumption to support an attitude of self-restraint, viz., the element subjectivizes in judicial decision on issues having socio-political significance. When one looks at the decisions of the Supreme Court on certain questions of fundamental issues of constitutional law one can see that there is a sharp division among the judges of the apex court on such basic questions of power of the Parliament to amend the Constitution, federal relations, powers of the President etc. This aptly demonstrates the observation of the judge. This would mean that though there has been expansion of powers of judicial review one cannot also say that this cannot be overturned.

  • Judicial self-restrain in relation to legislative power manifests itself in the form the there is a presumption of constitutionality when the validity of the statute is challenged. In the words of Fazl Ali, “…the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles”

  • In applying the presumption of constitutionality, the Courts sometimes apply an interpretational device called ‘reading down’. The essence of the device is that “if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.” But all this depends on the outlook and values of the judge.

  • When it come judicial review of administrative action though the presumption of validity is not so strong in the case of administrative action as in the case of statutes. Still, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint. They have said we cannot the question the legality of the exercise of discretionary power unless and until it is an abuse of discretionary power (which includes mala fide exercise of power, exercising the power for an improper motive, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases unreasonable exercise of power) and non-exercise of discretion ( which come when power is exercised without proper delegation and when it is acted under dictation).

  • The relevant considerations which should make the judicial choice in favour of activism or restraint are the policy and scheme of the statute, the object of conferring discretionary powers, the nature and scope of the discretion, and finally, the nature of the right and interests affected by the decision. Any impulsive move to activism without a serious consideration of these factors may only be viewed as undesirable. Judicial activism, being an exception, not the general rule, in relation to the control of discretionary power, needs strong reasons to justify it. In the absence of such strong support of reasons the interventionist strategy may provoke the other branches of Government may retaliate and impose further limitations on the scope of judicial review.

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