JUDICIAL REVIEW OF LEGISLATIVE ACTIONS AND HOW TO CHALLENGE IT

“Judicial review of legislative actions with respect to socio-economic rights has attracted intriguing debate among the constitutional law and political science scholars for some time now”. But time and again the judiciary has taken the liberty to comment upon numerous policies enacted by the legislature.This is evident in Anuradha Bhasin vs Union of India and  Puttaswamy judgement.This review implies the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.

GROUNDS OF CHALLENGE

While judicial review event of legislative action has emerged directly from common law doctrines,the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts also have power to adjudicate on questions of legislative competence, especially in Centre-State relations as Article 246 of the Constitution read with the 7th schedule.Some grounds of judicial review upon actions of legislative bodies are as follows:

  1. Excess of Jurisdiction:This covers a situation wherein though authority initially had the jurisdiction but exceeded it and hence its actions become illegal. This may happen under 2 situations firstly, if one continues to exercise jurisdiction despite occurrence of an event ousting jurisdictionand secondly, entertaining matters outside its jurisdiction.
  2. Irrationality: The Delhi High Court in Neha Jain vs. University of Delhi(2002), holding that that cancellation of examination & debarring the student for next exams as disproportionate punishment for adopting unfair means in the examination, substituted cancellation of only one paper as sufficient punishment Since the basic requirement of article 14 is fairness in action of the State, and non-arbitrariness in essence and substance, being the heart of fair play, judicial interference with policy decision is permissible:
  3. If the decision is shown to be patently arbitrary, discriminatory or mala fide
  4. If it is found to be unreasonable or violative of any provision of the Constitution or any other Statute.
  5. If it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power.
  6. If it is demonstrably capricious or arbitrary & not informed by any reason.

Irrationality applied to a decision which is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided would have arrived at it.Supreme Court of India in P.U.C.L. v. Union Of India (2003), case examined that the court will not interfere on the political question and on the policy matter, unless it is essential for the judicial review. However, court can interfere only on the selective ground. The court further stated that the government has to be bound by all the accessible possibilities to avoid the violence inside the establishment of the Indian Constitution. The legislature must apply its mind and lay down the criteria on which information must be disclosed. In the absence of such a law, the Court gave certain broad indicators for disclosure in order to give effect to the right under Article 19(1)(a).

Procedural Impropriety: Failure to comply with procedures laid down by statute may invalidate a decision. Procedural Impropriety is to encompass two areas: failure to observe rules laid down in statute; and a failure to observe the basic common law rule of natural justice..In Supreme Court Advocates on Record Association vs Union of India, the National Judicial Appointments Commission Act was challenged on the ground that the NJAC voilates judicial independence by creating a system in which the Chief Justice would no longer have primacy in judicial appointments and in which the judiciary would not have majority control over the NJAC in a system where the political influence of the executive and parliament would be dominant. Also it grants power to the parliament to change and alter judicial selection criteria and procedures, which constitutes the violation of judicial independence, separation of powers and Rule of Law.The Supreme Court observed that the impugned Amendment and the Act are struck down as unconstitutional. pre-existing scheme of appointment of judges stands revived. However, the matter be listed for consideration of the surviving issue of grievances as to working of pre-existing system.   

5.Rule Against Bias:The principles of natural justice which are imposed by the courts comprise two elements, namely,Audi alteram partem (hear both sides) and Nemo judex in causa sua (there should be an absence of bias with no person being a judge in their own cause). show that actual bias existed; the merest appearance or possibility of bias will suffice. The suspicion The essence of justice lies in a fair hearing. The rule against bias is strict: it is not necessary toof bias must, discharge his duties in a fair and reasonable manner and would be too lenient in inspecting the vehicles belonging to his own department.

6.Legitimate Expection: A Legitimate Expectation amounts to an expectation of receiving some benefit or privilege to which the individual has no right. The doctrine of Legitimate Expectation has evolved to give relief to the people when they are not able to justify their claims on the basis of law in the strict sense of the term they had suffered civil consequences because their legitimate expectation has been violated. Two considerations apply to legitimate expectations. The first is where an individual or group has been led to believe that a certain procedure will apply. The second is where an individual or group relies upon a policy or guidelines which have previously governed an area of executive action.

A three-judge Bench led by CJI was hearing the plea filed a plea filed by Goa Congress Chief Girish Chodankar seeking for a direction to the Goa Assembly Speaker to dispose of the disqualification proceedings expeditiously.Mr. Chodankar had alleged that the 10 MLAs, purportedly claiming to form a two-third of Indian National Congress (INC) in the State, “decided to merge the said legislature party with the BJP” and addressed a communication to that effect to the Speaker.He contended “that the legislators ex facie incurred disqualification under Article 191(2) of the Constitution, read with Para 2 of the Tenth Schedule (defection), and are liable to be disqualified as member of the Legislative Assembly”. According to SC,the Speaker of the Goa Legislative Assembly has agreed to pass its final order regarding disqualification of the MLAs who moved from Congress to BJP.Initially the Court was informed by SG Mehta that the orders will be passed by the Speaker on April 29th. However the Court stated that 29th April is not acceptable to the Bench, and the Speaker be asked to dispose it soon.

The Rajasthan high court has ruled that despite an existing judgment of the Supreme Court on the constitutionality of the anti-defection law, the petition filed by the group of dissident Congress MLAs loyal to Sachin Pilot is admissible and has directed that the assembly speaker not take any further action on show cause notices to the 19 legislators until further notice.The court has ordered status quo on the disqualification notices, which means that speaker C.P. Joshi will not be able to conduct disqualification proceedings against the rebel MLAs.The judgment is deferred until the Supreme Court decides the question of law in the matter.In Shrimath Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly (2019), the apex court held that the object of anti-defection law is to stop the lure of political offices or similar considerations and only limited judicial review is available against the Speaker’s decision on the grounds of violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity. In Pilot’s case, the SC has said it will examine this issue after the Speaker announces his decision.

Unreasonableness:In R.P. Singh vs. State of Bihar (2006), the Supreme Court explained that the expression “established practice” referred to a regular, consistent, predictable & certain conduct, process or activity of the decision-making authority. The expectation should be legitimate i.e. logical, reasonable & valid. The doctrine of legitimate expectation would apply in cases where the decision taken by the authority is found to be arbitrary, unreasonable & not taken in public interest. Change in policy however, can defeat the legitimate expectation. In such a case, even by the way of change of old policy, the Courts would not intervene with the decision.

In Anuradha Bhasin vs Union of India 2020 SC, The Union Territory of Jammu and Kashmir was directed by Supreme Court to review all orders suspending the internet services forthwith, all orders not in accordance with law must be revoked. Supreme Court held that the Freedom of Speech and Expression and the Freedom to practice any Profession or carry on any Trade, Business or Occupation over the medium of internet enjoys constitutional protection under Art 19 (1) (a) and Art 19 (1) (g). The restriction upon such fundamental rights should be in consonance with the mandate under Art 19 (2) and Art 19 (6) of the constitution inclusive of the test of Proportionality.Although Doctrine of Judicial Review is the basic structure of the constitution of India, it is not justified in policy matters. However, it is justified in policy matters provided that the policy is arbitary, unfair or voilative of fundamental rights. In Kerala Bar Hotels Association vs State of Kerala , the Supreme Court held that the courts must be loathe to venture into an evaluation of state policy which must be given a reasonable time to pan out. If a policy proves to be unwise, oppressive or mindless, the electorate has been quick to make the government aware of its folly.

The Doctrine of Judicial Review is thus, the interposition of the judicial restraint on the legislative, executive and judicial actions of the government. It has assumed the status of permanence through judicial decisions laid down from 1973 till now. Thus, Judicial Review is the basic structure of the constitution of India and any attempt to destroy or damage the basic structure is unconstitutional.

Fundamental Rights: As long as fundamental rights are integral part of the constitution of India, it is absolutely necessary that people keep falling back upon judicial review as a means to safeguard and ensure non violation of their fundamental rights guaranteed to them by law.It was not free to pursue a socialist policy at the expense of its tax payers.It is the function of the judges, may their duty, to pronounce upon the validity of laws. If courts are 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.

Shayara Bano vs Union Of India in this case supreme court of india held that triple talaq is a unilateral power given to the husband to divorce his wife and on the face of it, it looks arbitary therefore triple talaq is unconstitutional being voilative of fundamental rights. Justice Nariman propunded Doctrine Of Manifest Arbitration and held that triple talaq is voilative of Art 14 of the constitution of India.The basic structure doctrine was yet again reaffirmed in the case of I.R.Coelho vs State of Tamil Naduin which the Supreme Court held that any law placed in the 9th schedule after April 24, 1974 will be open to challenge. The Court held that even through the Act is put in the 9th schedule by a constitutional Amendment its provisions would be open to challenge on the ground that they destroy or damage the basic feature of the constitution.

The Indian Courts have addressed these questions in various cases, often while dealing with petitions filed against the Government, seeking strict enforcement and compliance of these Government policies/contracts as a matter of right and held that guidelines or executive instructions which are not statutory in character or under some provision of the Constitution, are not ‘laws’, and not judicially enforceable.This is because such guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve.

The Supreme Court had observed that torture in any form is inhuman, degrading and offensive to human dignity and constitutes an inroad into the right to life and is prohibited by Constitution, for no law authorises and no procedure permits torture or cruelty, inhuman or degrading treatment.In Joseph Shine vs Union of India  S.C.I held that sec 497 of Indian Penal Code is unconstitutional. Similarily before Supreme Court of India in Navjot Singh Johar vs Union of Indiathe constitutional validity of sec 377 was challanged on the ground that it voilates fundamental right. Justice Chandrachud observed that ”  i am not bound by societal morality, i am bound by constitutional morality and if the constitution protects the intrests of a single citizen of india i am bound to protect it”. Therefore Sec 377 of I.P.C was decriminalized and was held to be unconstitutional.

Sub-Delegated legislation:Delegated legislation is prohibited in law and can be used as a ground to challenge any law that has been sub delegated or delegation is made more than once.In State of Tamil Nadu v. P. Krishnamoorthy, the court after adverting to the relevant case law on the subject, laid down the parameters of judicial review of subordinate legislation generally thus:- There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a subordinate legislation can be challenged under any of the following grounds:

(a)Lack of legislative competence to make the subordinate legislation;

b) Violation of fundamental rights guaranteed under the Constitution of India;

 c) Violation of any provision of the Constitution of India;

d) Failure to conform to the statute under which it is made in exceeding thelimits of authority conferred by the enabling Act;

e) Repugnancy to the laws of the land, that is, any enactment;

f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).

The court considering the validity of a subordinate legislation, will have to consider the nature , object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or nonconformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity.Challenging the subordinate legislation, party has to certify the court that there had been abuse of power.

Mala-fides:The Court may interfere only if the order is found to have been taken without application of mind to the relevant factors or is founded on the extraneous or irrelevant considerations or is vitiated due to mala fides or patent arbitrariness.The Supreme Court today declined any interim relief to nine disqualified Uttarkhand MLAs, who have sought a stay on their disqualification and permission to participate in the assembly session, commencing from July 21 in Dehradun.A bench comprising Justices Dipak Misra and R F Nariman, however, said that the notice, given by these MLAs and BJP lawmakers, will remain alive and would be subject to the final outcome of its judgement on the petition filed by MLAs.The bench, meanwhile, decided to prepone the hearing on the appeal filed by rebel MLAs, including Kunwar Pranav Singh Champion, on 28 July ,2016.

Elections were held in the Uttarakhand legislature in which INC won 36 seats whereas BJP won 28 seats and BSP won 2 seats. The Appropriation bill was taken into consideration on 18-03-2016. 26 MLAs belonging to BJP and 9 MLAs belonging to INC were prompted by the BJP to remove the presiding government of Congress just after the passing of the Appropriation Bill. These rebel MLAs then claimed to obtain a division of vote. The president’s rule (article 356) was applied in the state of Uttarakhand. These protestor MLAs moved to Raj Bhawan on that day and offered a joined memorandum on the letter head of the leader of the opposition party mentioning the manner in which the government of Uttarakhand carried out the vote for the Appropriation Bill and stating that the government led by Congress Party should be terminated. Resolutions were moved against the deputy speaker as well as the Speaker. In the night of 18-03-2016, all the 9 rebel MLAs of Congress went along with Sri Kailash Vijayvargiya, National General Secretary, BJP and Sri Shyam Jaju, General Secretary In-charge of the state of Uttarakhandto the Jolly Grant Airport at Dehradun. It is claimed that all the 9 Congress MLAs were forced to stay at the Leela Hotel in New Delhi. The BJP members did a march to request the president for dismissing the Uttarakhand government. Later on 18-03-2016, all the 35 members went to Raj Bhawan to submit a memorandum for questioning the position and status of the Appropriation Bill. They claimed that they were overlooked by the Speaker while voting for the Appropriation Bill. It was also submitted that the voting procedure has not been recorded. A message was sent to the CM of the state of Uttarakhand to conduct the vote of confidence in the Assembly as soon as possible. The vote of confidence should be recorded and videographed and sent to the Governor of the state. A video of a sting operation was released in which the petitioner was engaged in horse-trading. He was seen giving bribe to the MLAs in order to gain the votes. The petitioner told the Governor that there is no abnormality in the house. All the 35 rebel MLAs from BJP and Congress party claimed that the Appropriation Bill had fallen in the Assembly but the Speaker contemplates that it was successfully passed with a fair voting by all MLAs. They also claimed that the Uttarakhand government has lost its majority with which it recently won the general elections.

The order by the High Court of Uttarakhand  in this case was clearly in favour to the petitioner. Chief Justice K.M.Joseph pronounced the judgment on April 21, 2016 providing reliefs to the petitioner who was the Chief Minister of Uttarakhand. An order was issued by the court for quashing the proclamation, which was issued under Article 356. The respondent recommended the President’s rule in Uttarakhand, which was also canceled by the court. The court ordered the respondent to provide all the records related to the recommendation of the application of the President’s rule in Uttarakhand. The court ordered Harish Rawat to restore his government with all of this Council of Ministers and to restart the office as the Chief Minister of Uttarakhand and revive the 3rd Uttarakhand Legislative Assembly. The court also issued an order declaring all the orders or actions passed during the period of President’s rule as void-ab-initio i.e. illegal and hence quashed.The High Court discovered that the power to impose the President’s rule under Article 356 in a state was held as contrary to law. The court mentioned that the way it was imposed in the state was conflicting the procedure as laid down by the Supreme Court. Hence, the President’s rule was quashed by the High Court.The verdict also stated that since the President’s rule under Article 356 is quashed in the state of Uttarakhand, the Harish Rawat government will revive and continue to be in power.

In the case Nabam Rebia vs. Deputy Speaker, Supreme Court restored the Government led by Nabam Tuki in Arunachal Pradesh and announced as illegitimate decisions of Governor that had first led to application of President’s Rule in the State and then formation of a new Government led by ruling party’s separate group. Everyone welcomed the order. The timely involvement of judiciary made the application of Article356 i.e. President’s Rule, depending on a Constitutional failure which is subject to judicial review. The historic judgment will check the Centre’s tendency to misuse Governor’s powers and President’ Rule to remove opponent State Governments. While restoring the previous Government, the apex court held that the Assembly wasn’t suspended immediately, but only kept under adjourned animation until both the houses of parliament permitted President’s Rule. It also demanded a floor test to confirm Government’s majority. Thus, the Supreme Court restored the purity of floor test. Supreme Court ordered Governor of Arunachal Pradesh to answer why he recommended President’s Rule in the state. But later, the Supreme Court retracted the order saying that it made a fault by not recognizing that the Governor have complete power and are not responsible to courts for any act done under their official capacity.

RECENT JUDGEMENTS AGAINST JUDICIAL REVIEW BY COURTS

 ”In J. P. Bansal v State of Rajasthan, case of the SC has examined that the impartiality of the judiciary endangers in the community attention. Although the court interpreting the Constitution enjoys freedom. Under this freedom the court has not failed in interpreting the statute. The rule of law is the essential component of the judicial assessment, as soon as the court interpret statute and provide their own view for amending the statute. Such aforesaid judgment is the injurious to public interest.” “The Supreme Court has refused to treat the Central Vista project as a unique one requiring a greater or “heightened” judicial review.” The New Delhi’s Central Vista project includes Parliament House, Rashtrapati Bhavan, India Gate, North and South block among others. “The Supreme Court said the government was “entitled to commit errors or achieve successes” in policy matters without the court’s interference as long as it follows constitutional principles.It is not the court’s concern to enquire into the priorities of an elected government. Judicial review is never meant to venture into the mind of the government and thereby examine the validity of a decision.” “The Supreme Court, in a 2:1 verdict on January has held that there is no infirmity in the grant of “no objection” by the Central Vista Committee (CVC) and “approval” by the Delhi Urban Art Commission (DUAC) and “prior approval” by the Heritage Conservation Committee (HCC) to the Central Vista Project, for which Prime Minister Narendra Modi laid the foundation stone on December 10 last year.The project envisages construction of a new parliament building and a common Central Secretariat with all ministries of the Central government in a single location to ensure efficiency and synergy in functioning. In Rajeev Suri v Delhi Development Authority, the petitioners alleged that the Centre violated Article 21 of the Constitution and the Doctrine of Public Trust by denying basic access to public/recreational spaces which are essential to life and liberty.The two majority judges, Justices A.M. Khanwilkar and Dinesh Maheshwari held that the public trust doctrine does not prohibit the government from utilising the resources held in public trust for the advancement of public interest itself, suggesting that the CVP is in public interest. They also held that the mere absence of sufficient participation by the public in the process of clearing the project could not be termed as unreasonable so as to quash the whole process.They reasoned:

“The same logic may be invoked to compel the Government of the day to undertake public participation before going for a war on the fronts due to aggression by the neighbouring country, which is more important than a decision to construct a new Parliament building.”

They also added that the mere absence of information about the project would not render the decision vitiated. While declining to interfere in the grant of environmental clearance for the project, the majority judges directed that mitigating measures must be observed letter and spirit during by the project proponent in the construction and operational phase. Monitoring of waste management methods, installation of high-capacity smog towers and

“Judicial review of legislative actions with respect to socio-economic rights has attracted intriguing debate among the constitutional law and political science scholars for some time now”. But time and again the judiciary has taken the liberty to comment upon numerous policies enacted by the legislature.This is evident in Anuradha Bhasin vs Union of India and  Puttaswamy judgement.This review implies the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.

GROUNDS OF CHALLENGE

While judicial review event of legislative action has emerged directly from common law doctrines,the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts also have power to adjudicate on questions of legislative competence, especially in Centre-State relations as Article 246 of the Constitution read with the 7th schedule.Some grounds of judicial review upon actions of legislative bodies are as follows:

  1. Excess of Jurisdiction:This covers a situation wherein though authority initially had the jurisdiction but exceeded it and hence its actions become illegal. This may happen under 2 situations firstly, if one continues to exercise jurisdiction despite occurrence of an event ousting jurisdictionand secondly, entertaining matters outside its jurisdiction.
  2. Irrationality: The Delhi High Court in Neha Jain vs. University of Delhi(2002), holding that that cancellation of examination & debarring the student for next exams as disproportionate punishment for adopting unfair means in the examination, substituted cancellation of only one paper as sufficient punishment Since the basic requirement of article 14 is fairness in action of the State, and non-arbitrariness in essence and substance, being the heart of fair play, judicial interference with policy decision is permissible:
  3. If the decision is shown to be patently arbitrary, discriminatory or mala fide
  4. If it is found to be unreasonable or violative of any provision of the Constitution or any other Statute.
  5. If it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power.
  6. If it is demonstrably capricious or arbitrary & not informed by any reason.

Irrationality applied to a decision which is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided would have arrived at it.Supreme Court of India in P.U.C.L. v. Union Of India (2003), case examined that the court will not interfere on the political question and on the policy matter, unless it is essential for the judicial review. However, court can interfere only on the selective ground. The court further stated that the government has to be bound by all the accessible possibilities to avoid the violence inside the establishment of the Indian Constitution. The legislature must apply its mind and lay down the criteria on which information must be disclosed. In the absence of such a law, the Court gave certain broad indicators for disclosure in order to give effect to the right under Article 19(1).Procedural Impropriety: Failure to comply with procedures laid down by statute may invalidate a decision. Procedural Impropriety is to encompass two areas: failure to observe rules laid down in statute; and a failure to observe the basic common law rule of natural justice..In Supreme Court Advocates on Record Association vs Union of India, the National Judicial Appointments Commission Act was challenged on the ground that the NJAC voilates judicial independence by creating a system in which the Chief Justice would no longer have primacy in judicial appointments and in which the judiciary would not have majority control over the NJAC in a system where the political influence of the executive and parliament would be dominant. Also it grants power to the parliament to change and alter judicial selection criteria and procedures, which constitutes the violation of judicial independence, separation of powers and Rule of Law.The Supreme Court observed that the impugned Amendment and the Act are struck down as unconstitutional. pre-existing scheme of appointment of judges stands revived. However, the matter be listed for consideration of the surviving issue of grievances as to working of pre-existing system.   

5.Rule Against Bias:The principles of natural justice which are imposed by the courts comprise two elements, namely,Audi alteram partem (hear both sides) and Nemo judex in causa sua (there should be an absence of bias with no person being a judge in their own cause). show that actual bias existed; the merest appearance or possibility of bias will suffice. The suspicion The essence of justice lies in a fair hearing. The rule against bias is strict: it is not necessary toof bias must, discharge his duties in a fair and reasonable manner and would be too lenient in inspecting the vehicles belonging to his own department.

6.Legitimate Expection: A Legitimate Expectation amounts to an expectation of receiving some benefit or privilege to which the individual has no right. The doctrine of Legitimate Expectation has evolved to give relief to the people when they are not able to justify their claims on the basis of law in the strict sense of the term they had suffered civil consequences because their legitimate expectation has been violated. Two considerations apply to legitimate expectations. The first is where an individual or group has been led to believe that a certain procedure will apply. The second is where an individual or group relies upon a policy or guidelines which have previously governed an area of executive action.

A three-judge Bench led by CJI was hearing the plea filed a plea filed by Goa Congress Chief Girish Chodankar seeking for a direction to the Goa Assembly Speaker to dispose of the disqualification proceedings expeditiously.Mr. Chodankar had alleged that the 10 MLAs, purportedly claiming to form a two-third of Indian National Congress (INC) in the State, “decided to merge the said legislature party with the BJP” and addressed a communication to that effect to the Speaker.He contended “that the legislators ex facie incurred disqualification under Article 191(2) of the Constitution, read with Para 2 of the Tenth Schedule (defection), and are liable to be disqualified as member of the Legislative Assembly”. According to SC,the Speaker of the Goa Legislative Assembly has agreed to pass its final order regarding disqualification of the MLAs who moved from Congress to BJP.Initially the Court was informed by SG Mehta that the orders will be passed by the Speaker on April 29th. However the Court stated that 29th April is not acceptable to the Bench, and the Speaker be asked to dispose it soon.

The Rajasthan high court has ruled that despite an existing judgment of the Supreme Court on the constitutionality of the anti-defection law, the petition filed by the group of dissident Congress MLAs loyal to Sachin Pilot is admissible and has directed that the assembly speaker not take any further action on show cause notices to the 19 legislators until further notice.The court has ordered status quo on the disqualification notices, which means that speaker C.P. Joshi will not be able to conduct disqualification proceedings against the rebel MLAs.The judgment is deferred until the Supreme Court decides the question of law in the matter.In Shrimath Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly (2019), the apex court held that the object of anti-defection law is to stop the lure of political offices or similar considerations and only limited judicial review is available against the Speaker’s decision on the grounds of violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity. In Pilot’s case, the SC has said it will examine this issue after the Speaker announces his decision.

Unreasonableness:In R.P. Singh vs. State of Bihar (2006), the Supreme Court explained that the expression “established practice” referred to a regular, consistent, predictable & certain conduct, process or activity of the decision-making authority. The expectation should be legitimate i.e. logical, reasonable & valid. The doctrine of legitimate expectation would apply in cases where the decision taken by the authority is found to be arbitrary, unreasonable & not taken in public interest. Change in policy however, can defeat the legitimate expectation. In such a case, even by the way of change of old policy, the Courts would not intervene with the decision.

In Anuradha Bhasin vs Union of India 2020 SC, The Union Territory of Jammu and Kashmir was directed by Supreme Court to review all orders suspending the internet services forthwith, all orders not in accordance with law must be revoked. Supreme Court held that the Freedom of Speech and Expression and the Freedom to practice any Profession or carry on any Trade, Business or Occupation over the medium of internet enjoys constitutional protection under Art 19 (1) (a) and Art 19 (1) (g). The restriction upon such fundamental rights should be in consonance with the mandate under Art 19 (2) and Art 19 (6) of the constitution inclusive of the test of Proportionality.Although Doctrine of Judicial Review is the basic structure of the constitution of India, it is not justified in policy matters. However, it is justified in policy matters provided that the policy is arbitary, unfair or voilative of fundamental rights. In Kerala Bar Hotels Association vs State of Kerala , the Supreme Court held that the courts must be loathe to venture into an evaluation of state policy which must be given a reasonable time to pan out. If a policy proves to be unwise, oppressive or mindless, the electorate has been quick to make the government aware of its folly.The Doctrine of Judicial Review is thus, the interposition of the judicial restraint on the legislative, executive and judicial actions of the government. It has assumed the status of permanence through judicial decisions laid down from 1973 till now. Thus, Judicial Review is the basic structure of the constitution of India and any attempt to destroy or damage the basic structure is unconstitutional.

Fundamental Rights: As long as fundamental rights are integral part of the constitution of India, it is absolutely necessary that people keep falling back upon judicial review as a means to safeguard and ensure non violation of their fundamental rights guaranteed to them by law.It was not free to pursue a socialist policy at the expense of its tax payers.It is the function of the judges, may their duty, to pronounce upon the validity of laws. If courts are 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.

Shayara Bano vs Union Of India in this case supreme court of india held that triple talaq is a unilateral power given to the husband to divorce his wife and on the face of it, it looks arbitary therefore triple talaq is unconstitutional being voilative of fundamental rights. Justice Nariman propunded Doctrine Of Manifest Arbitration and held that triple talaq is voilative of Art 14 of the constitution of India.The basic structure doctrine was yet again reaffirmed in the case of I.R.Coelho vs State of Tamil Naduin which the Supreme Court held that any law placed in the 9th schedule after April 24, 1974 will be open to challenge. The Court held that even through the Act is put in the 9th schedule by a constitutional Amendment its provisions would be open to challenge on the ground that they destroy or damage the basic feature of the constitution.

The Indian Courts have addressed these questions in various cases, often while dealing with petitions filed against the Government, seeking strict enforcement and compliance of these Government policies/contracts as a matter of right and held that guidelines or executive instructions which are not statutory in character or under some provision of the Constitution, are not ‘laws’, and not judicially enforceable.This is because such guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve.

The Supreme Court had observed that torture in any form is inhuman, degrading and offensive to human dignity and constitutes an inroad into the right to life and is prohibited by Constitution, for no law authorises and no procedure permits torture or cruelty, inhuman or degrading treatment.In Joseph Shine vs Union of India  S.C.I held that sec 497 of Indian Penal Code is unconstitutional. Similarily before Supreme Court of India in Navjot Singh Johar vs Union of Indiathe constitutional validity of sec 377 was challanged on the ground that it voilates fundamental right. Justice Chandrachud observed that ”  i am not bound by societal morality, i am bound by constitutional morality and if the constitution protects the intrests of a single citizen of india i am bound to protect it”. Therefore Sec 377 of I.P.C was decriminalized and was held to be unconstitutional.

Sub-Delegated legislation:Delegated legislation is prohibited in law and can be used as a ground to challenge any law that has been sub delegated or delegation is made more than once.In State of Tamil Nadu v. P. Krishnamoorthy, the court after adverting to the relevant case law on the subject, laid down the parameters of judicial review of subordinate legislation generally thus:- There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a subordinate legislation can be challenged under any of the following grounds:

(a)Lack of legislative competence to make the subordinate legislation;

b) Violation of fundamental rights guaranteed under the Constitution of India;

 c) Violation of any provision of the Constitution of India;

d) Failure to conform to the statute under which it is made in exceeding thelimits of authority conferred by the enabling Act;

e) Repugnancy to the laws of the land, that is, any enactment;

f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).

The court considering the validity of a subordinate legislation, will have to consider the nature , object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or nonconformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity.Challenging the subordinate legislation, party has to certify the court that there had been abuse of power.

Mala-fides:The Court may interfere only if the order is found to have been taken without application of mind to the relevant factors or is founded on the extraneous or irrelevant considerations or is vitiated due to mala fides or patent arbitrariness.The Supreme Court today declined any interim relief to nine disqualified Uttarkhand MLAs, who have sought a stay on their disqualification and permission to participate in the assembly session, commencing from July 21 in Dehradun.A bench comprising Justices Dipak Misra and R F Nariman, however, said that the notice, given by these MLAs and BJP lawmakers, will remain alive and would be subject to the final outcome of its judgement on the petition filed by MLAs.The bench, meanwhile, decided to prepone the hearing on the appeal filed by rebel MLAs, including Kunwar Pranav Singh Champion, on 28 July ,2016.

Elections were held in the Uttarakhand legislature in which INC won 36 seats whereas BJP won 28 seats and BSP won 2 seats. The Appropriation bill was taken into consideration on 18-03-2016. 26 MLAs belonging to BJP and 9 MLAs belonging to INC were prompted by the BJP to remove the presiding government of Congress just after the passing of the Appropriation Bill. These rebel MLAs then claimed to obtain a division of vote. The president’s rule (article 356) was applied in the state of Uttarakhand. These protestor MLAs moved to Raj Bhawan on that day and offered a joined memorandum on the letter head of the leader of the opposition party mentioning the manner in which the government of Uttarakhand carried out the vote for the Appropriation Bill and stating that the government led by Congress Party should be terminated. Resolutions were moved against the deputy speaker as well as the Speaker. In the night of 18-03-2016, all the 9 rebel MLAs of Congress went along with Sri Kailash Vijayvargiya, National General Secretary, BJP and Sri Shyam Jaju, General Secretary In-charge of the state of Uttarakhandto the Jolly Grant Airport at Dehradun. It is claimed that all the 9 Congress MLAs were forced to stay at the Leela Hotel in New Delhi. The BJP members did a march to request the president for dismissing the Uttarakhand government. Later on 18-03-2016, all the 35 members went to Raj Bhawan to submit a memorandum for questioning the position and status of the Appropriation Bill. They claimed that they were overlooked by the Speaker while voting for the Appropriation Bill. It was also submitted that the voting procedure has not been recorded. A message was sent to the CM of the state of Uttarakhand to conduct the vote of confidence in the Assembly as soon as possible. The vote of confidence should be recorded and videographed and sent to the Governor of the state. A video of a sting operation was released in which the petitioner was engaged in horse-trading. He was seen giving bribe to the MLAs in order to gain the votes. The petitioner told the Governor that there is no abnormality in the house. All the 35 rebel MLAs from BJP and Congress party claimed that the Appropriation Bill had fallen in the Assembly but the Speaker contemplates that it was successfully passed with a fair voting by all MLAs. They also claimed that the Uttarakhand government has lost its majority with which it recently won the general elections.

The order by the High Court of Uttarakhand  in this case was clearly in favour to the petitioner. Chief Justice K.M.Joseph pronounced the judgment on April 21, 2016 providing reliefs to the petitioner who was the Chief Minister of Uttarakhand. An order was issued by the court for quashing the proclamation, which was issued under Article 356. The respondent recommended the President’s rule in Uttarakhand, which was also canceled by the court. The court ordered the respondent to provide all the records related to the recommendation of the application of the President’s rule in Uttarakhand. The court ordered Harish Rawat to restore his government with all of this Council of Ministers and to restart the office as the Chief Minister of Uttarakhand and revive the 3rd Uttarakhand Legislative Assembly. The court also issued an order declaring all the orders or actions passed during the period of President’s rule as void-ab-initio i.e. illegal and hence quashed.The High Court discovered that the power to impose the President’s rule under Article 356 in a state was held as contrary to law. The court mentioned that the way it was imposed in the state was conflicting the procedure as laid down by the Supreme Court. Hence, the President’s rule was quashed by the High Court.The verdict also stated that since the President’s rule under Article 356 is quashed in the state of Uttarakhand, the Harish Rawat government will revive and continue to be in power.

In the case Nabam Rebia vs. Deputy Speaker, Supreme Court restored the Government led by Nabam Tuki in Arunachal Pradesh and announced as illegitimate decisions of Governor that had first led to application of President’s Rule in the State and then formation of a new Government led by ruling party’s separate group. Everyone welcomed the order. The timely involvement of judiciary made the application of Article356 i.e. President’s Rule, depending on a Constitutional failure which is subject to judicial review. The historic judgment will check the Centre’s tendency to misuse Governor’s powers and President’ Rule to remove opponent State Governments. While restoring the previous Government, the apex court held that the Assembly wasn’t suspended immediately, but only kept under adjourned animation until both the houses of parliament permitted President’s Rule. It also demanded a floor test to confirm Government’s majority. Thus, the Supreme Court restored the purity of floor test. Supreme Court ordered Governor of Arunachal Pradesh to answer why he recommended President’s Rule in the state. But later, the Supreme Court retracted the order saying that it made a fault by not recognizing that the Governor have complete power and are not responsible to courts for any act done under their official capacity.

RECENT JUDGEMENTS AGAINST JUDICIAL REVIEW BY COURTS

 ”In J. P. Bansal v State of Rajasthan, case of the SC has examined that the impartiality of the judiciary endangers in the community attention. Although the court interpreting the Constitution enjoys freedom. Under this freedom the court has not failed in interpreting the statute. The rule of law is the essential component of the judicial assessment, as soon as the court interpret statute and provide their own view for amending the statute. Such aforesaid judgment is the injurious to public interest.” “The Supreme Court has refused to treat the Central Vista project as a unique one requiring a greater or “heightened” judicial review.” The New Delhi’s Central Vista project includes Parliament House, Rashtrapati Bhavan, India Gate, North and South block among others. “The Supreme Court said the government was “entitled to commit errors or achieve successes” in policy matters without the court’s interference as long as it follows constitutional principles.It is not the court’s concern to enquire into the priorities of an elected government. Judicial review is never meant to venture into the mind of the government and thereby examine the validity of a decision.” “The Supreme Court, in a 2:1 verdict on January has held that there is no infirmity in the grant of “no objection” by the Central Vista Committee and “approval” by the Delhi Urban Art Commission and “prior approval” by the Heritage Conservation Committee to the Central Vista Project, for which Prime Minister Narendra Modi laid the foundation stone on December 10 last year.The project envisages construction of a new parliament building and a common Central Secretariat with all ministries of the Central government in a single location to ensure efficiency and synergy in functioning. In Rajeev Suri v Delhi Development Authority & Ors, the petitioners alleged that the Centre violated Article 21 of the Constitution and the Doctrine of Public Trust by denying basic access to public/recreational spaces which are essential to life and liberty.The two majority judges, Justices A.M. Khanwilkar and Dinesh Maheshwari held that the public trust doctrine does not prohibit the government from utilising the resources held in public trust for the advancement of public interest itself, suggesting that the CVP is in public interest. They also held that the mere absence of sufficient participation by the public in the process of clearing the project could not be termed as unreasonable so as to quash the whole process.They reasoned:

“The same logic may be invoked to compel the Government of the day to undertake public participation before going for a war on the fronts due to aggression by the neighbouring country, which is more important than a decision to construct a new Parliament building.”

They also added that the mere absence of information about the project would not render the decision vitiated. While declining to interfere in the grant of environmental clearance for the project, the majority judges directed that mitigating measures must be observed letter and spirit during by the project proponent in the construction and operational phase. Monitoring of waste management methods, installation of high-capacity smog towers and use of adequate number of smog guns to minimise pollution levels during the construction are some measures mentioned by the majority judges.The majority judgment in the Central Vista case shows that the judges were unconvinced that the project would result in denial of basic access to public/recreational spaces which are essential to life and liberty.”

use of adequate number of smog guns to minimise pollution levels during the construction are some measures mentioned by the majority judges.The majority judgment in the Central Vista case shows that the judges were unconvinced that the project would result in denial of basic access to public/recreational spaces which are essential to life and liberty.”

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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