The nature and scope of judicial review has been succinctly stated in Union of India v. Raghubir Singh(1989)[1] by R.S. Pathak, C.J. thus: (SCC p. 766, para 7)

“7. … The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law. … With this impressive expanse of judicial power, it is only right that the superior courts in India should be conscious of the enormous responsibility which rest on them.

This is especially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitution, binding on all courts within the territory of India.”

And again: (SCC p. 767, para 11)

“11. Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma.

The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as “fairness” or “reasonableness”, but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters.”

The aforesaid two passages lay immense responsibility on the Court pertaining to the exercise of the power keeping in view the accepted values of the present. An organic instrument requires the Court to draw strength from the spirit of the Constitution. The propelling element of the Constitution commands the realisation of the values. The aspiring dynamism of the interpretative process also expects the same.

Supreme Court has the constitutional power and the authority to interpret the constitutional provisions as well as the statutory provisions. The conferment of the power of judicial review has a great sanctity as the constitutional court has the power to 21 declare any law as unconstitutional if there is lack of competence of the legislature keeping in view the field of legislation as provided in the Constitution or if a provision contravenes or runs counter to any of the fundamental rights or any constitutional provision or if a provision is manifestly arbitrary.

Restraints on Judicial Review

The duty of judicial review which the Constitution has bestowed upon the judiciary is not unfettered; it comes within the conception of judicial restraint. The principle of judicial restraint requires that Judges ought to decide cases while being within their defined limits of power. Judges are expected to interpret any law or any provision of the Constitution as per the limits laid down by the Constitution.

In S.C. Chandra v. State of Jharkhand (2007)[2], it has been ruled that the judiciary should exercise restraint and ordinarily should not encroach into the legislative domain.

In this regard, a reference to a three-Judge Bench decision in Suresh Seth v. Indore Municipal Corpn (2005)[3] is quite instructive. In the said case, a prayer was made before the Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956. Repelling the submission, the Court held that it is purely a matter of policy which is for the elected representatives of the people to decide and no directions can be issued by the Court in this regard.

The Court further observed that this Court cannot issue directions to the legislature to make any particular kind of enactment. In this context, the Court held that under our constitutional scheme, Parliament and Legislative Assemblies exercise sovereign power to enact law and no outside power or authority can issue a direction to enact a particular kind of legislation.

While so holding, the Court referred to the decision in Supreme Court Employees’ Welfare Assn. v. Union of India [1989][4] wherein it was held that no court can direct a legislature to enact a particular law and similarly when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated authority.

Recently, in Census Commr. v. R. Krishnamurthy(2015)[5], the Court, after referring to Premium Granites v. State of T.N.[6], M.P. Oil Extraction v. State of M.P.[7], State of M.P. v. Narmada Bachao Andolan[8]and State of Punjab v. Ram Lubhaya Bagga[9], held : (R. Krishnamurthy case [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589] , SCC p. 809, para 33)  

“33. From the aforesaid pronouncement of law, it is clear as noonday that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion.”

In Kalpna Mehta v. Union of India (2018), the court stated that,

“At this juncture, we think it apt to clearly state that the judicial restraint cannot and should not be such that it amounts to judicial abdication and judicial passivism. The Judiciary cannot abdicate the solemn duty which the Constitution has placed on its shoulders i.e. to protect the fundamental rights of the citizens guaranteed under Part III of the Constitution.

The constitutional courts cannot sit in oblivion when fundamental rights of individuals are at stake. Our Constitution has conceived the constitutional courts to act as defenders against illegal intrusion of the fundamental rights of individuals.”

The Constitution, under its aegis, has armed the constitutional courts with wide powers which the courts should exercise, without an iota of hesitation or apprehension, when the fundamental rights of individuals are in jeopardy. Elucidating on the said aspect, the Court in Virendra Singh v. State of U.P[10]. has observed : (AIR p. 454, para 34)

“34. … We have upon us the whole armour of the Constitution and walk from henceforth in its enlightened ways, wearing the breastplate of its protecting provisions and flashing the flaming sword of its inspiration.”

The Court in Kalpna Mehta, further said,

“While interpreting fundamental rights, the constitutional courts should remember that whenever an occasion arises, the courts have to adopt a liberal approach with the object to infuse lively spirit and vigour so that the fundamental rights do not suffer.

When we say so, it may not be understood that while interpreting fundamental rights, the constitutional courts should altogether depart from the doctrine of precedents but it is the obligation of the constitutional courts to act as sentinel on the qui vive to ardently guard the fundamental rights of individuals bestowed upon by the Constitution.”

The duty of this Court, in this context, has been aptly described in K.S. Srinivasan v. Union of India[11] wherein it was stated : (AIR p. 433, para 50)

“50. … All I can see is a man who has been wronged and I can see a plain way out. I would take it.”

Such an approach applies with more zeal in case of Article 32 of the Constitution which has been described by Dr B.R. Ambedkar as “the very soul of the Constitution — the very heart of it — the most important Article”. Article 32 enjoys special status and, therefore, it is incumbent upon this Court, in matters under Article 32, to adopt a progressive attitude. This would be in consonance with the duty of this Court under the Constitution, that is, to secure the inalienable fundamental rights of individuals.”


Kalpana Mehta v Union of India, (2018) 7 SCC 1

[1] [Union of India v. Raghubir Singh, (1989) 2 SCC 754]

[2] [S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897]

[3] [Suresh Seth v. Indore Municipal Corpn., (2005) 13 SCC 287]

[4] Supreme Court Employees’ Welfare Assn. v. Union of India, (1989) 4 SCC 187 : 1989 SCC (L&S) 569]

[5] [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589]

[6] [Premium Granites v. State of T.N., (1994) 2 SCC 691]

[7] [M.P. Oil Extraction v. State of M.P., (1997) 7 SCC 592]

[8] State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875]

[9] [State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117 : 1998 SCC (L&S) 1021]

[10] [Virendra Singhv. State of U.P., AIR 1954 SC 447]

[11] [K.S. Srinivasan v. Union of India, AIR 1958 SC 419]