Professional Documents
Culture Documents
CHAPTER - I
INTRODUCTION
1.1 Background
India is a constitutional democracy governed by rule of
democracies has its origin from the prerogative of the King while
discharging his judicial functions. Both in England and in the United
States, this doctrine, to start with, had a very reluctant appearance in
public law, in so far as the power was exercised by the courts scarcely.
But, by the middle of the 20th century, it had assumed unquestionable
dominance in the public law in the United States and was fastly
gaining momentum in England alsol. As far as India is concerned, as
the power of judicial review is engraved in the Constitution itself, the
growth and development of the doctrine was smooth, uniform and
orderly, drawing inspiration from the common law principles. In India
also initially the growth was slow and reluctant, though at times, it
was imposing and assertive, and has now assumed the role of the
central pillar of constitutionalism and good governance.
1 S. A. de Smith er al, Principles ofludicial Review, Sweet & Maxwell, London (1999), p.54
3 See Articles 32,136,226 and 227 ofthe Constitution of India.
governed or guided by the judiciary. But, the fact remains that the
body of case law evolved under this constitutional doctrine reflect the
5 Paul Craig, Formal and Substantive Conception of the Rule of Law: An Analytical Frame Work,
[1997] P.L. 487.
The power of judicial review has and should have its self
imposed restraint. Even while expanding this doctrine to control the
executive bull, courts were slow and reluctant to tread into certain
areas of administration which, by their very nature, could not have
been effectively supervised by the courts, due to its inherent inability
and institutional limitations to deal with those areas. Policy decisions
of the Government, defence strategies, religious matters, academic
matters, taxation, international covenants, national security etc. are
have recognized and accepted the fact that the academic bodies
consisting of experts in their respective elds are pre-eminently the
best persons to make authoritative decisions in specialized subjects
and matters. As regards universities, it is accepted that they are self
governing autonomous institutions and, therefore, should be given
sufficient academic freedom and independence in taking decisions in
pursuit of academic excellence.
for judicial review, still stand at a safer distance from the judicial
policing.
on the nature of the decision makers but based on the nature and
content of the decisions. Accordingly, the highly volatile area of the
1.3 Methodology
The study is both analytical and descriptive and is based
on primary and secondary sources. Primary sources include the case
laws reported from the Supreme Court and the High Court Kerala.
Other sources are, inter alia, the Government of India Act, 1935,
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academic matters. The case law are dealt with under different
separate topics. The last chapter is the conclusions and suggestions of
the study.