The principle of judicial review finds its roots in common law. It can effectively be traced back to Chief Justice Coke’s ruling in Thomas Bonham v. College of Physicians,[1] wherein it was asserted that common law had the authority to oversee Acts of Parliament and empowered the courts to invalidate an enactment conflicting with common right and reason. This principle entails subjecting all laws to scrutiny against a higher law, typically embodied in a constitution.
Origin in Formal Way
This principle originated in the Supreme Court of the United States during the landmark case of Marbury v. Madison.[2] In that decision, the Court asserted its authority by deeming the concerned legislation unconstitutional, thereby constraining the powers of Congress. The Court therein held that:
“Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”
Origin and Development of Judicial Review in India
The essence of our constitutional system is rooted in the concepts of constitutionalism and judicial review, which comprise three essential elements:
First, the presence of a written Constitution establishing and constraining government organs;
Second, the Constitution serving as a superior law or standard by which the conduct of all organs is assessed; and
Third, the provision for sanctions to prevent, restrain, and if necessary, annul any violation of superior law.
The third element, which seeks to safeguard superior law, is through judicial review. Despite the expansive powers granted to legislatures, they operate within the confines set by the Constitution. In a democratic nation governed by a written constitution, supremacy and sovereignty reside in the Constitution. However, the duty of protecting the rights given under the Constitution falls to courts through judicial review, making them, in the process, the ultimate arbiter of constitutional interpretation.
Constitutional courts, equipped with the powers of judicial review, function as custodians of justice, ensuring effective safeguard of citizens’ rights. Embedded in Article 13 of our Constitution, judicial review is recognized as a basic feature of our constitutional framework. It gives the Court the authority to scrutinize any violation of constitutional mandates by state organs. As articulated by Lord Steyn, the justification for judicial review arises from a combination of principles, such as the separation of powers, the rule of law, and the principle of constitutionality.
The power of judicial review does not undermine the doctrine of separation of powers. Instead, it fosters it by ensuring a system of checks and balances to prevent constitutional transgression by any organ of the state. Separation of powers should be seen as a connection or link, rather than as a limitation or impediment; allowing the Court to ensure that the constitutional order prevails.
It is pertinent to iterate the language under Article 13(2) of the Constitution, which states that:
“(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” The word “law” in Article 13 includes within its ambit, “any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”.
Upon a perusal of the above, it becomes clear that though the term ‘policy’ is not expressly mentioned in Article 13, it becomes justiciable if it takes the shape of a law. In the event such a law is deemed void due to a violation of any fundamental rights outlined in Part III of the Constitution, it cannot be protected merely for being legislative policy.
This view has been elucidated in A.L. Kalra v. Project & Equipment Corporation,[3] wherein objections were raised on the grounds that the Court could not review the statute, as it entailed policy considerations.
However, the Court, having taken these contentions into consideration, held that a legislative policy taking the concrete shape of a statute could be tested on the anvil of violation of fundamental rights. It is, therefore, abundantly clear that courts possess the authority to scrutinize whether legislative or executive actions contravene the Constitution, and the designation of a decision as a policy choice does not serve as a fetter to the exercise of this judicial power.
This aligns with the principle of separation of powers, which bestows upon the judiciary the authority to serve as a guardian against the actions of the legislature and executive, intervening to safeguard the interests of citizens when necessary.
Limits to judicial review
However, concurrently, it is imperative to acknowledge and respect the domain of the legislature and executive within the framework of the separation of powers. While the courts are entrusted with the authority to maintain checks and balances on the other branches concerning the constitution and other legal provisions, they are not empowered to supplant the legislature by delving into additional facets of policy decisions and governing citizens in its stead.
This sentiment resonated in Hindi Hitrakshak Samiti v. Union of India[4], wherein it was held that:
“8. It is well settled that judicial review, in order to enforce a fundamental right, is permissible of administrative, legislative and governmental action or non-action, and that the rights of the citizens of this country are to be judged by the judiciary and judicial forums and not by the administrators or executives. But it is equally true that citizens of India are not to be governed by the judges or judiciary.
If the governance is illegal or violative of rights and obligations, other questions may arise but whether, as mentioned hereinbefore, it has to be a policy decision by the government or the authority and thereafter enforcement of that policy, the court should not be, and we hope would not be an appropriate forum for decision.”
Similar views were echoed in Fertilizer Corporation Kamgar Union v. Union of India,[5] where a 5-judge bench of this Court affirmed that, in accordance with the principle of separation of powers, the authority of the Court is confined to assessing whether legislative or executive actions comply with the law, without delving into judgments on their wisdom.
Consequently, while the Court possesses the jurisdiction to interpret the law and scrutinize the legality of policy decisions, it is not empowered to substitute its discretion for that of the legislature or executive, nor to speculate on the appropriateness of such decisions.
The courts do not operate as advisors to the executive in matters of policy formulation, a prerogative rightfully within the executive’s domain.
Similarly, it is imperative to emphasize that courts also lack the authority to intervene in policy matters when based on the premise of policy errors or the availability of ostensibly superior, fairer, or wiser alternatives. The Court cannot do a comparative analysis of policy to determine which would have been better.
As summarized by the Court in Directorate of Film Festivals v. Gaurav Ashwin Jain:[6]
“16. […] the scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.”
This is particularly true for complex areas requiring empirical knowledge, data inputs, and technical expertise, such as matters involving economic policy, scientific policy, or international relations. Complex social, economic, or commercial issues require a trial and error approach, the weighing of different competing aspects, and often intricate factual studies. Such matters raise complicated multi-disciplinary questions that do not fall within the legal domain, are irreducible to one answer, and require adjustment of priorities amongst different stakeholders.
Since courts are not equipped to evaluate such factual aspects, they cannot be allowed to formulate policy. In contrast, the legislature has the correct institutional mechanism to deliberate on various considerations, as it facilitates decision-making by democratically elected representatives who possess diverse tools and skill sets to balance social, economic, and political factors.
Such policy matters thus ought to be entrusted to the legislature. This principle is succinctly encapsulated by Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., in which a 5-judge bench of this Court held that:
“Scales of justice are just not designed to weigh competing social and economic factors. In such matters legislative wisdom must prevail and judicial review must abstain.”
Furthermore, the Courts are not tasked with assessing the efficacy of policies. A policy may successfully achieve the objectives outlined in legislation, or it may possess limitations hindering the full realization of its aims. Regardless, the Court cannot sit in judgment over policy to determine whether revisions may be necessary for its enhancement. This has also been authoritatively elucidated by an 11-judge bench of this Court in the case of Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India:
“63. This Court is not the forum in which these conflicting claims may be debated. […] The Parliament has under Entry 45, List I the power to legislate in respect of banking and other commercial activities of the named banks necessarily incidental thereto: it has the power to legislate for acquiring the undertaking of the named banks under Entry 42, List III.
Whether by the exercise of the power vested in the Reserve Bank under the pre-existing laws, results could be achieved which it is the object of the Act to achieve, is, in our judgment, not relevant in considering whether the Act amounts to abuse of legislative power. This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of the Parliament in enacting a law. […]”
In summary, the judicial review of government policies encapsulates determining whether they infringe upon the fundamental rights of citizens, contravene constitutional provisions, violate statutory regulations, or display manifest arbitrariness, capriciousness, or mala fides.
The focus of judicial scrutiny is limited to the legality of the policy, excluding any evaluation of its wisdom or soundness. The Court cannot compel the government to formulate a policy, evaluate alternatives or assess the effectiveness of existing policies. This constraint stems from the principle of separation of powers, where the Court lacks the democratic mandate and institutional expertise to delve into such matters. Thus, while the Court can invalidate a policy, it lacks the authority to create one.
However, to reiterate, while the Court cannot look into the aforementioned aspects, the Court can check the constitutional validity of a policy, particularly so when it is elevated as an act of the Legislature.
Reference
In Re: Section 6(A) of the Citizenship Act, 1955 (2024)
[1] Thomas Bonham v. College of Physicians [1610], 8 Co. Rep. 107 77 Eng. Rep. 638
[2] Marbury v. Madison [1803], 5 U.S. 137 (1803)
[3] (1984) 3 SCC 316
[4] (1990) 2 SCC 352, para 8
[5] Fertilizer Corporation Kamgar Union v. Union of India, (1981) 1 SCC 568, para 35.
[6] Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, para 16