DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

CHAPTER-I
INTRODUCTION
Judicial review is a very important power in the hands of judiciary to protect the values which
the founding father has given us from the harm done by legislature or the executive If we take a
hypothetical situation then judicial review can be looked as supervisor of a examination centre,
though job of this supervisor is not to teach at moment of time and the students are well able to
do their job by following given rules. The job of the supervisor is to control them and avoid any
kind of wrongdoings of those students and if someone is doing work outside the rules supervisor
can employ remedial actions. So if we look this situation in present case court is the supervisor
which is given the power to look on to the work of legislature and executive, these two organs
are enabled by the constitution to work even then supervisor is given authority to look after
whether they are working with in their limits i.e. constitutional limitations. And in case they
exceed their powers the court can employ judicial review the principle that constitution is
fundamental law of land is the basis of our political set up. The organs of the have been well
defined with their powers and functions. They have to function within the constitutional
boundaries prescribed for them. The constitution recognises independent and strong judiciary as
a one of the main pillar of our democracy. The parliament, our legislatures enact laws for the
well being of the society which are implemented by the executive. Court in India is the finale
interpreter of the constitution. Though our constitution has described the powers of all organs of
the constitution still confusion arises as to correct meaning of words and phrases and the true
spirit of the law makers. Supreme Court has power to interpret constitution and in case Supreme
Court finds the act of the executive and legislature is against the constitution it can invalidate that
law. This is what we call power of judicial review.
The word judicial review is no where expressly given in constitution of India even then
the power given to supreme court of India under various provisions of the constitution evidently
give proof of its existence. Firstly article 13 of constitution of India which state that state and
local governmental and legislatures will not make laws which take away or abridges fundamental
rights. If at all they do so such orders or laws will become void. And secondly article 32 and 226
which talk about the protection of fundamental rights through writs issued by the courts and
1

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

confer upon the Supreme Court the sacred duty of upholding the constitution. Supreme court of
India is playing a very active role in describing the scope of judicial review in India. This power
is not achieved by the court in a night rather a series of actions and cases are there in which
Supreme Court is trying to filter this power to reach at its optimal stage. In this paper we will
look on to the role of supreme court of India with regard to judicial review in two respects. One
is the role played by the supreme court of India in giving the true meaning to its power of
judicial review and second is the role played by Supreme Court of India in establishing a social
welfare structure while exercising the power of judicial review. By doctrinal research in this
paper I tried to look onto the in a systematic way and try to give a clear picture of the role played
by the Supreme Court.

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

RESEARCH METHODOLOGY
PROBLEM/ ISSUE:It is surprising that when some other Articles which are comparatively of lesser importance had
attracted elaborate debates in the Constituent Assembly, Articles 226, 227 and 32 have drawn
only very little attention in the debates despite their vast potential for judicial supremacy over the
other two organs of the state in future. It may be presumed that the framers of the constitution
have not either applied their mind so deep as to forecast possible or eventual conflicts between
the judiciary and the other two organs of the state, or that the constitution makers themselves
wanted and envisaged the judiciary to be the final arbiter of all disputes of whatever nature
arising in the Republic. It is worthwhile to note the observation of the Parliamentary Joint
Committee in their report in this connection. They observed. in India the growth and
development of judicial review as a formidable constitutional doctrine was a natural consequence
flowing from the written Constitution with specific provisions of judicial review. In India the
doctrine has been accepted and approved as one of the basic features of the Constitution1

RATIONALE:The results of this study would tell about the approach of the Supreme Court
towards the development and scope of the judicial review in India. Further it stated towards the
development of the judicial review by following the case law of the judicial review.

Keshananda Bharti v. State of Kera1a, A.l.R. 1973 S.C. 461.

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

OBJECTIVE AND AIMS :-

1) To trace the development of the judicial review

2) To identify or describing role of Supreme Court in scope of judicial review.
3) To see how judicial review has maintained the supremacy of the
constitution .
4) To come up with the recommendations for making the system of judicial
review in India more effective by using the way towards the development process and
getting the decision precedent by the court
REVIEW OF LITERATURE:

PROF. JAIN, M.P.INDIAN CONSTITUTIONAL LAW, FIFTH EDITION, LEXIS NEXUS

BUTTERWORTHS WADHWA NAGPUR, 2008
According to author many of the principal relating to judicial review which is
Art.226 will be found in the text dealing with judicial review, india is a democratic
country governed by the rule of law .public authorities exercise the various types of
power executive, adjudicatory, legislative. It is necessary that public authority act
accordingly to law and so they are subjected to judicial review.

MAHENDRA P.,V. N. SHUKLAS, CONSTITUTION

OF

INDIA, ELEVENTH EDITION,

EASTERN BOOK COMPANY, LUCKNOW, 2008

According to author by clause (1) of article 226, a twofold territorial limitation has
been placed on the power of the high courts to issue writs, Firstly, the power into be
exercised throughout the territories in relation to which it exercise jurisdiction
secondly, the person or authority to who be a High court issues such a writs must be
within these territories It clearly imp0lies that they must be amenable to its
jurisdiction either by residence or location within those territories.

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

HYPOTHESIS:The very name itself fascinates me and I feel a cool stream of proud running in my blood
whenever I listen to its name, The Supreme Court of India. Dont you feel so the same. It is a
body with responsibility of spreading justice in the country. This highest court of the country is a
role model for the rest judicial bodies and has played, is playing and I am sure will play a fare,
impartial, humane, and just role in imparting justice. Supreme Court, through its power of
judicial review not only imparting justice but also playing role of a correctional institute. It is my
strong opinion that this body has done enormous for the well being of the country. I wish it
would keep going on the track of social justice, the track which is fastened by it after a long
battle and which is still going on

NATURE, SOURCES & TYPE OF STUDY:Judicial review in India is practiced in respect of any kind of State action, such as
legislative action, the administrative action or the judicial action, the research paper is limited up
to the remedies of judicial review. The research methodology used for the present research
article is traditional Doctrinal research method. As most of the information can be sought form
the available literature. So the researcher has chosen doctrinal method as method of research for
the present article and has used books, journals, research articles for preparation of the same.

LIMITATION:Although the research paper has reached its aims, there are stated the approaches of these
remedies to the courts by the help of various type of writs. For the sake of convenience and for
detail study, the researcher has limited the present topic to the characteristic from writs of
Mandamus and writs of Certiorari.

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

CONTRIBUTION:I have contributed the case law to present my topic and my general idea over the development
project and the scope of judicial review taken as a whole aspect of judicial review.

CHAPTER -II
JUDICIAL REVIEW
Literally the notion of judicial review means the revision of the decree or sentence of an inferior
court by a superior court. Judicial review has a more technical significance in pubic law,
particularly in countries having a written constitution which are founded on the concept of
imited government. Judicial review in this case means that Courts of law have the power of
testing the validity of legislative as well as other governmental action with reference to the
provisions of the constitution.
The doctrine of judicial review has been originated and developed by the American Supreme
Court, although there is no express provision in the American Constitution for the judicial
review. In Marbury v. Madison, the Supreme Court made it clear that it had the power of judicial
review. Chief Justice George Marshall said, Certainly all those who have framed the written
Constitution contemplate them as forming the fundamental and paramount law of the nations,
and consequently, the theory of every such Government must be that an act of the legislature,
repugnant to the Constitution is void. There is supremacy of Constitution in U.S.A. and,
therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the
Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void.
The Courts declare void the acts of the legislature and the executive, if they are found in
violation of the provisions of the Constitution.

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

CHAPTER-III
JUDICIAL REVIEW IN INDIA
The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British.
In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can
declare a parliamentary enactment invalid. On the contrary every court is constrained to enforce
every provision" of the law of parliament.
Under the constitution of India parliament is not Supreme. Its powers are limited in the two
ways. First, there is the division of powers between the union and the states. Parliament is
competent to pass laws only with respect to those subjects which are guaranteed to the citizens
against every form of legislative .
Being the guardian of Fundamental Rights and the arbiter of constitutional conflicts between the
union and the states with respect to the division of powers between them, the Supreme Court
stands in a unique position where from it is competent to exercise the power of reviewing
legislative enactments both of parliament and the state legislatures.
This is what makes the court a powerful instrument of judicial review under the constitution. As
Dr. M.P. Jain has rightly observed: "The doctrine of judicial review is thus firmly rooted in
India, and has the explicit sanction of the constitution." In the framework of a constitution which
guarantees individual Fundamental Rights, divides power between the union and the states and
clearly defines and delimits the powers and functions of every organ of the state including the
parliament, judiciary plays a very important role under their powers of judicial review.
The power of judicial review of legislation is given to the judiciary both by the political theory
and text of the constitution. There are several specific provisions in the Indian constitution,
judicial review of legislation such as Act 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.
Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly.
Article 13 specifically declares that any law which contravenes any of the provision of the part of
Fundamental Rights shall be void. Even our Supreme Court has observed, even without the
specific provisions in Article 13. The court would have the power to declare any enactment

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

which transgresses a Fundamental Right as invalid. The Supreme and high courts are constituted
the protector and guarantor of Fundamental Rights under Articles 32 and 226. Articles 251 and
254 say that in case of in consistent if between union and state laws, the state law shall be void.
Judicial review is a great weapon in the hands of judges. It comprises the power of a court to
hold unconstitutional and unenforceable any law or order based upon such law or any other
action by a public authority which is inconsistent or in conflict with the basic law of the land. In
fact, the study of constitutional law may be described as a study of the doctrine of judicial review
in action The courts have power to strike down any law, if they believe it to be unconstitutional.
The judgment in I.R. Coelho v. the State of Tamil Nadu 2 has answered this question by
establishing the pre-eminence of judicial review of each and every part of the Constitution. The
Court has laid down a two-fold test: (a) whether an amendment or a law is violative of any of the
Fundamental Rights in Part III (b) if so, whether the violation found is destructive of the basic
structure of the Constitution. If the court finds that the impugned enactment damages the basic
structure of the Constitution, it shall be declared void, notwithstanding the fictional immunity
given to it by Article 31B.Thus, the basic structure doctrine requires the State to justify the
degree of invasion of Fundamental Rights in every given case; and this is where the court's
power of judicial review comes in.
Under our Constitution, judicial review can conveniently be classified under three heads3

(1) Judicial review of Constitutional amendments.-This has been the subject-matter of

consideration in various cases by the Supreme Court; of them worth mentioning are: Shankari
Prasad case 4 , Sajjan Singh case 5 , Golak Nath case 6 , Kesavananda Bharati case 7 , Minerva

2
3

(1999) 7 SCC 580

Justice Syed Shah Mohammed Quadri, Judicial Review of Adminstrative Action, (2001) 6 SCC (Jour) 1.

Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.

Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

Golak Nath v. State of Punjab, AIR 1967 SC 1643.

Kesavananda Bharati v. Union of India, AIR 1973 SC 1461

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

Millscase8, Sanjeev Coke case8 and Indira Gandhi case9. The test of validity of Constitutional
amendments is conforming to the basic features of the Constitution
(2) Judicial review of legislation of Parliament, State Legislatures as well as subordinate
legislation.-Judicial review in this category is in respect of legislative competence and violation
of fundamental rights or any other Constitutional or legislative limitations;
(3) Judicial review of administrative action of the Union of India as well as the State
Governments and authorities falling within the meaning of State.
The researchers emphasis is in this direction. It is necessary to distinguish between judicial
review and judicial control. The term judicial review has a restrictive connotation as compared
to the term judicial control. Judicial review is supervisory, rather than corrective, in nature.
Judicial review is denoted by the writ system which functions in India under Arts. 32 and 226 of
the Constitution. Judicial control, on the other hand, is a broader term. It denotes a much broader
concept and includes judicial review within itself. Judicial control comprises of all methods
through which a person can seek relief against the Administration through the medium of the
courts, such as, appeal, writs, declaration, injunction, damages statutory remedies against the
Administration.10 Therefore judicial review is a fundamental principle of law that every power
must be exercised within the four corners of law and within the legal limits. Exercise of
administrative power is not. an exception to that basic rule. The doctrines by which those limits
are ascertained and enforced form the very marrow of administrative law. Unfettered discretion
cannot exist where the rule of law reigns. Again, all power is capable of abuse, and that the
power to prevent the abuse is the acid test of effective judicial review.11
Under the traditional theory, courts of law used to control existence and extend of prerogative
power but not the manner of exercise thereof. That position was, however, considerably modified
after the decision in Council of Civil Service Unions v. Minister for Civil Service 12, wherein it
was emphasized that the reviewability of discretionary power must depend upon the

8
9

Minerva Mills v. Union of India, AIR 1980 SC 1789.

Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd.,

10

M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the Subject containing case-law reference (Indian

& Foreign), 6th Ed., Wadhwa and Company Nagpur, New Delhi, 2007, p. 1779.
11
12

Wade, Administrative Law, (1994), pp. 39-41.

1984) 3 All ER 935: (1984) 3 WLR 1174: (1985) AC 374.

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

subjectmatter and not upon its source. The extent and degree of judicial review and justifiable
area may vary from case to case.13
At the same time, however, the power of judicial review is not unqualified or unlimited. If the
courts were to assume jurisdiction to review administrative acts which are unfair in their
opinion (on merits), the courts would assume jurisdiction to do the very thing which is to be done
by administration. If judicial review were to trespass on the merits of the exercise of
administrative power, it would put its own legitimacy at risk. It is submitted that the following
observations of Frankfurter, I. in Trop v. Dulles14,
lay down correct legal position: All power is, in Madisons Phrase of an encroaching nature.
Judicial Power is not immune against this human weakness. It also must be on guard against
encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self
restraint.

13

Craig, Administrative Law, (1993), p. 291.

14

1985) 35 US 86.

10

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

CHAPTER-III
CASE ON JUDICIAL REVIEW IN INDIA
The basic function of the courts is to adjudicate disputed between individuals and the state,
between the states and the union and while so adjudicating, the courts may be required to
interpret the provisions of the constitution and the laws, and the interpretation given by the
Supreme Court becomes the law honoured by all courts of the land. There is no appeal against
the judgement of the Supreme Court.
In Shankari Prasad vs. Union of India15 the first Amendment Act of 1951 was challenged
before the Supreme Court on the ground that the said Act abridged the right to property and that
it could not be done as there was a restriction on the amendment of Fundamental Rights under
Article 13 (2). The Supreme Court rejected the contention and unanimously held. "The terms of
Article 368 are perfectly general and empower parliament to amend the constitution without any
exception whatever. In the context of Article 13 law must be taken to mean rules or regulations
made in exercise of ordinary legislative power and amendments to the constitution made in
exercise of constituent power, with the result that Article 13 (2) does not affect amendments
made under Article 368."
In Sajan Singh's case1 16 , the corupetence of parliament to enact 17th amendment was
challenged before the constitution. Bench comprising of five judges on the ground that it violated
the Fundamental Rights under Article 31 (A). Supreme court reiterated its earlier stand taken in
Shankari sad's case and held, "when article 368 confers on parliament the right to amend the
constitution the power in question can be exercised over all the provisions of the constitution, it
would be unreason about to hold that the word law' in article 13 (2) takes in amendment Acts
passed under article 368.Thus, until 1967 the Supreme Court held that the Amendment Acts were
not ordinary laws, and could not be struck down by the application of article 13 (2).
The historic case of Golak Nath vs. The state of Punjab17 was heard by a special bench of 11
judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged. The
Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament
15

AIR 1951 SC 458

1960 A.C. 167
17
AIR 1967 SC 1643
16

11

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

under article 368 has no power to take away or abridge the Fundamental Rights contained in
chapter II of the constitution the court observed.
(1) Article 368 only provides a procedure to be followed regarding amendment of the
constitution.
(2) Article 368 does not contain the actual power to amend the constitution.
(3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97
of the union list.
(4) The expression 'law' as defined in Article 13 (3) includes not only the law made by the
parliament in exercise of its ordinary legislative power but also an amendment of the constitution
made in exercise of its constitution power.
(5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be
void under Article 13 (2) of it takes away or abridges the rights conferred by part III of the
constitution.
(6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth
Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under
Article 13 (2) of the constitution.
(7) Parliament will have no power from the days of the decision to amend any of the provisions
of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined
there in. The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in
the, Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of law
to change or destroy the entire fabric of the constitution through the instrumentality of
parliament's amending power. In Minerva Mills case18 the Supreme Court by a majority decision
has trunk down section 4 of the 42nd Amendment Act which gave preponderance to the
Directive Principles over Articles 24, 19 and 31 of part III of the constitution, on the ground that
part III and part IV of the constitution are equally important and absolute primacy of one over
the other is not permissible as that would disturb the harmony of the constitution. The Supreme
Court was convinced that anything that destroys the balance between the two part will IpsoTacto
destroy an essential element of the basic structure of our constitution

18

1980) 3 SCC 625

12

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

CHAPTER-IV
FIVE RESTRICTIONS ON THE RIGHT OF JUDICIAL REVIEW
First, the right to limit judicial review of administrative Justice in order to avoid excessive
intervention and legislation on the Indian courts take the position of judicial activism and judicial
review of horizontal expansion. It has been holding a respected and skeptical attitude toward a
mixed complex. They are respected because judicial review of the creative interpretation of the
Constitution can play on the legislative and executive powers of the strong regulatory role, but at
the same time, people have the right to judicial review of legislation and may be beyond the
doubts about the executive power. Second, people think, because of the judicial review of
constitutional issues often involve significant, if not adequately regulate, the subjective element
of judicial review may result in significant social and political consequences.
As pointed out by the Indian Supreme Court Justice Dwivedi, The complex mixture of political
activity and political values of many of the basic social choice, the court cannot assume this
function. The court in the absence of any clear evidence of constitutional standards and adequate
conditions, the basic value of the trade-off is necessarily subjective of the court's decision and
thus inevitably subject to personal preferences of judges. The judge's subjectivity and thus
reduce the legal certainty, and certainty the nature of the rule of law is one of the elements. In
fact, if a little of the Supreme Court in the basic issue of constitutional ruling, the judge can be
found in a number of different basic constitutional issues, such as the constitutional right of
Congress, federal relations, presidential powers such as the above there are different views and
opinions.
Restrictions on judicial review of the content. India's traditional limits on judicial review for
constitutional and procedural law largely limits procedural restrictions on the two main
principles: First, the principle of delay slack (Doctrine of Laches), that is lost due to slack rights,
the court will not grant relief, the second is the principle of res judicata , that the Court's final
ruling is made, regardless of the outcome of the verdict, the parties and the courts are bound to
accept the verdict content, the parties shall not in respect of the contents of judgments re- make
the same claim, the court shall not be made in respect of the contents of judgments conflicting
13

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

judgments. India, although the court proceedings began against the law other than the
Constitution and for other restrictions on judicial review, but 90 years after the 20th century,
social pressure or the introduction of appropriate doctrine of judicial self-restraint. In terms of
judicial review of the legislative, judicial self-restraint shown by the allegations of a legislation
was unconstitutional, it should still be assumed to be constitutional. That a bill has not been
formally ruled unconstitutional in before it is combined constitution, and the responsibility to
prove to the court of its constitutional commitment, the court shall prove that the bill clearly
violates the basic principles of the Constitution. The court reviewed the constitutionality of the
application filed from time to time to adopt a constitutional interpretation technology, which "is
review the constitutionality of provisions of the Act an interpretation, while the other constitutes
an unconstitutional interpretation, the court tends to the former explanation but sometimes this
interpretation also depends on the judge's personal views and values. In a judicial review of
administrative action, administrative action assumes the constitutionality of the case is weaker
than legislation. But clearly the administration in the Legislative left room for administrative
discretion, the court shall also be taken to judicial restraint doctrine attitude. In other words, the
Court of Administrative Discretion cannot challenge the constitutionality, unless there is abuse
of the executive branch or the Chief Administrative Discretion is not a situation.

CHAPTER-V
EXPANDING THE SCOPE OF JUDICIAL REVIEW
The judge infuses life and blood into the dry skeleton provided by the legislature and creates a
living organism appropriate and adequate to meet the needs of the society (P.N. Bhagwati).
These words of chief justice P.N Bhagwati worth mentioning because the role of judges is not
only strictly interpretting the constitution but also is to give the true meaning to the legislation.
Judicial review has generated its power from the constitution in India and the scope is very well
described by the supreme court of india from time to time. If we strictly look on to the meaning
of judicial review it is the check and balance of the acts or laws made by the legislation by the
judiciary on account of its being contrary to the constitution. But the scope of the judicial power
to check the actions of court is not limited to laws made by the legislature. The scope is much
more widened and a separate doctrine known as judicial activism came to existence. The

14

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

decision given by court in golakh nath and keshvanad bharti case is also a example of judicial
activisim as said by P.N Bhagwati.(P.N Bhagwati). Judicial activism though touches the
boundary threads of the judicial review. The scope of judicial review is widened up to the extent of
maximum limits. And judicial activism can easily cross these borders and can be proved to be
populism or excessism19 activism is populism when doctrinal effervescence transands the
institutional capacity of judiciary to translate the doctrine into reality, and it is excessivism when a
court undertakes responsibilities normally discharged by other co-ordinate organs of the
government20

post emergency i.e. after year 1976 judicial activism grew in a positive and more social oriented.
Professor baxi optimized that after 32 years of republic supreme court of india has become the
supreme court of Indians21The court became much more accessible and more people priented.
For this court adopted two strategies: (1)it reinterpreted the fundamental provision in more
liberal manner in order to maximize the rights of the people , particularly the disadvantaged, (2)it
facilitated the courts by relaxing its technical rules of locus standi, entertaining letter petitions or
acting sue moto. The difference can be traced here between the review and activism. Judicial
activism touches that social welfare scope and a person though not having locus standi can go to
the Supreme Court under public interest litigation. Public interest litigation from its very name
suggests its object. The history of PIL can be divided into two broad phases. In the first phase
the main emphasis was on ameliorating the lot of the poor, depressed and deprived sections of
the society. During this period the courts entertained and decided on a number of PILs on a
number of highly significant and notable concerns of this society

19

s.p sathe p.43.

20

ibid

21

(Upender Baxi in P.K Gandhi p61).

15

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

Another example we can take the case of Hussainara Khatoon and Ors. Vs. Home Secretary, Bihar
and Ors22..in this case a large number of criminal writ petitions, many of them based on letters, were
grouped together as petitions by under-trial prisoners and certain orders were passed from time to
time for the release of certain prisoners on bail on their executing personal bonds for appearance
without any monetary obligations. A detailed order was passed on February 12, 1979 by a Division
Bench of this Court on a habeas corpus petition filed in regard to the state of affairs in Bihar. This
was followed by orders passed from time to time which have been reported as "Re: Hussainara
Khatoon and Ors." Guidelines have been laid down in these orders in regard to the release of undertrials who are found to be languishing in jails for want of expeditious disposal of pending cases. The
Supreme Court held that right to speedy trial was a part of liberty of a citizen guaranteed under
article 21. Then in the second phase we see that courts became the lobby for environment cases.
Court come across with many PIL on environment issues and held a lot of good and valuable
decisions in this field. Over the years addressing public causes through PILs has become the most
productive endeavour for several NGOs. The common cause and Bombay environmental action
group for example has field over 100 PILs each. Some of the examples of cases are :

Tirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars Protection
Association and Ors23(SCC 9 2009 p737) in this case court held that polluting industries should take all
necessary measures to prevent degradation of environment and to remove sludge and other
pollutants lying in the affected area . Liability of polluter is absolute for harm to the environment it
extends not only to the victims of pollution but also to meet the cost of restoring the pollution free
environment. Precautionary principle and the Polluter pays principle have been accepted as a
part of the law of the land being the part of environmental law of the country. polluter escape the
responsibility to meet out the expenses of reversing the ecology, Principles of Polluters-pay and
Precautionary principle have to be read with the doctrine of Sustainable Development M.C.
Mehta vs. Union of India (UOI) and Ors24 in this case court stated that so long as it is possible to
undertake mining operations on the sustainable development principle, the Court should not
impose complete ban on mining as it generates revenue for the State. However, vide para 89,
option of imposing a ban in future was kept open. Authorities have not taken into consideration the
macro effect of wide scale land and environmental degradation caused by absence of remedial
22
23
24

(CriLJ 4020 1995)

(SCC 9 2009 p737)
(SCC 6 p142 2009

16

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

measures (including rehabilitation plan). Mining within the Principle of Sustainable Development
comes within the concept of balancing whereas mining beyond the Principle of Sustainable
Development comes within the concept of banning

17

DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

CONCLUSION & SUGGESTION

With the right public awareness in India, every major government action on judicial review is of
the trend of legal development in India. Some executive branches of government have begun to
take the initiative to bring judicial review of some controversial issues in order to reduce
decision-making responsibilities. From India, the development of judicial review and the basic
framework can draw the following conclusions. First, India is an important judicial review of the
constitutional system in Indian capitalism. The rule of law plays a positive role in safeguarding
the constitutional system. Secondly, the main function of judicial review of the system is to
balance the legislative and administrative constraints, and in essence is the interests of all sectors.
The purpose of judicial review from the Indian courts is to establish the constitutional principle
of judicial review, as well as the expansion of judicial review. The judicial review of
constitutional governance is to be a useful tool to play its effective role. Courts need to balance
different social interests, to take appropriate activism or restraint doctrine in the judicial review
and to consider many factors like the laws of the policies and programs, the discretion granted to
the target and the nature and scope of the discretionary decisions that may affect the rights and
interests of the consequences. Finally, the development of judicial review in India is inherited
from the British colonial era and its constitutional system and the product of common law
judicial system is the capitalist nature of the constitutional mechanism.

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DEVELOPMENT PROJECT AND SCOPE OF JUDICIAL REVIEW IN INDIA

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