Posted by INTRODUCTION AND COMPARATIVE CONSTRUCT
The very term “Judicial review” is something which has since democracy’s inception has received a great deal of judicial magnanimity and has readily played on contours of legitimacy and fairness. Delving further into the debacle, referring to the words of Alexander Hamilton is highly imperative as he went onto state “It would require great deal of fortitude in the judges, to do their duty as faithful guardians of the constitution, where legislative invasions have been instigated by major voice of community”[1]
As we aptly begin the conceptual juggernaut which has over the years has been accorded the status of a buttressing agent of the democratic foundation of a nation. Now, we must take heed of the varying ambits of judicial process as for having a clear vision of the same relying upon the Austinian conception of the same, one would get a jaundiced view of the same as would involve a narrower construction.
As we delve further there is a paradox prevailing as regards the role as played by the English courts as they tend to assert that the English Judges have found the common law, on contrary to the same the common law tends to operate on an axiomatic foundation of the very fact that the judges merely found the law, but the visible truth being that they designed the whole thing so as to suit their own needs.
The above observation rises from the status of merely being a conception to reality as via the case[2] along with the case[3]. If one takes into cognizance of the whole working of the English system one can readily observe that the parliament had unfettered power and the same got readily corroborated by the case[4] and as we harken to the words of Chief Justice John Marshall-“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular case, must of necessity interpret and expound the rules. In case of conflict, adjudication should be on the basis of operation of each”
The very act of establishing judicial courts empowers the Supreme court to issue the writ of mandamus, in cases warranted by usage of law and the primarily the very basis of letting the supreme court issue the same was from the doctrine of separation of powers which made a matter being an appellate one a sound basis for issuance of Mandamus, this decision was quite reflective of the facets of judicial review as in US. However yet another connotation can readily be seen as through the case[5] where the Calcutta H.C enunciated-“ The theory of every government with a written constitution forming the most fundamental and paramount law of nations must be the act of legislature repugnant to the constitution and effectuating the same would overthrow what was established in theory and make it operative in law, which was not law” [6]
As justice Cardozo stated “ A written constitution state or ought to state not rules for their passing, but principles for an expanding future” one can readily perceive the poignancy of the Supreme court in the case[7]. As we delve into the US paradigm, brevity to the debacle is added by the observation by Justice Thomas Jefferson-“Where the will of legislature is antithetical to the people, the fundamental law shall prevail”, this defensive stance entailed an impression as US had housed Judicial review, however after the case[8] an anti-state interventionist stance was taken by the courts and same got admonished by liberalists and appreciated by conservatives
SUPREME COURT AND LEGITIMACY:THE TRASCENDENCE WITH CONTEMPORARY INSTANCES
A case in point shall readily be made as regarding the legitimacy quotient of the Supreme court, however the major backdrop is well characterised by the limitation of its institutional competency and this entails the judiciary as being shackled so as to not address the major social problem as existing and same has ill effects over its efficacy[9], Yet another one being the legitimacy of the courts as regards to the policy making, however factors such as intricacies of impeachment process, immunity as regards to the diminution of compensation add to the antithetical nature of the basic tenets of what one calls as democracy[10]
As one traces the period of 1950-1975 the Supreme court’s behaviour led to the belief that they had stepped onto the British shoes as being reflected by the case[11] where a narrow construction was given to Article 21 and the same marked the advent of judicial restraint, yet another phenomena of Judicial activism has succinctly shaped the Indian Judiciary. If one attaches a liberal vein of interpretation then the same is an undefined Conception and adds to the tenets of social engineering[12]
One can readily construe the term judicial overreach as a transcendence from legitimate activism to its present state as legitimacy being the defining factor however adjudication upon juristic basis is justified and the same was reflected in the case[13], If one sees the same in the domestic context then the whole debacle tends to gyrate over the very phase when the judiciary has called onto the executive to perform its functions. As Justice Verma states -“The judiciary should only compel performance of duty by the designated authority in moments of institutional despondency, while a takeover of the function is inappropriate and its legitimate only when under domain of legitimate judicial review”
One has to discern between judicial review and overreach for they act as vital to smooth functioning of democratic foundation and in consonance with the doctrine of separation of powers. One can evince the same by referring to the case[14]where the High court gave direction in order to establish the post of a tractor driver which conventionally falls upon the domains of executive and a coherent debate will not be established if one doesn’t talk about the case[15] where guidelines were issued to avoid sexual harassment at workplace and it is inclusive of acts of constituting committees for wearing helmet, one way traffic along with interference in the educational policies of the government[16]
The case[17] was fairly reflective of the proposition that the:- “Judicial review isn’t warranted in matters pertaining to policy for the same is in the domains of the Executive, however when the same tends to affect the rights of the citizens then the judicial review must be done”. Delving further into the contemporaneous instances, the observation given by Lord Denning fits quite well as he went onto state:- “A judge cannot simply fold his hands when a defect surfaces then he must set forth to find the true legislative intent and must supplement the same with written words so as to give it force and life. The judge must not alter the material of which the act is woven, but he can and should iron out the creases”[18]
As during the Covid-19 crisis a proactive judiciary was seen when the judiciary verily questioned the central government over its vaccine distribution process as they form a vital part of judicial review for the same demands the policies to conform to the standards of reasonableness and non-arbitrariness and the separation of powers doctrine does not disable the judiciary from conducting judicial reviews of policies that affect the rights of the citizens[19] .A similar approach was seen in the case[20] where Delhi High Court had ordered to form a National Task force to take care of the distribution process for medical oxygen based on scientific reasoning and make strong recommendations and facilitating audits in the states and the Union Territories
CONCLUSION
As stated above there has been an attempt to capture a holistic picture as via establishing a comparative construct, however the reasoning which tends to remain all pervasive is based on the legitimacy quotient and the same operates on the premise of reasonableness of functioning of all the three organs. Going by the well set norms as following the set constitutional scheme, the assumed role of activist by the judiciary readily countermands the well cherished constitutional ideals and the same acts as an unwelcomed contradiction for all the three organs and any matter having a proper judicial basis of adjudication then only the interventionist is well accepted Judicial review is something which constantly plays at the helm of fairness and acts as a welcomed offshoot of a democracy however it must be used for the purpose of keeping checks and balances and any act beyond that would an unwelcomed intrusion and thus antithetical to the tenets of what is just for each organ of the state thus all the actions must be legitimate enough
[1] Prentiss et al. v. Atlantic Coast Line Co., 211 U.S., 21O(1908)
[2] Donoghue V Stevenson(1932) UKHL 100
[3] Ryland V Fletcher (1868) UKHL 1, (1868) LR 3 L 330
[4] Marbury V Madison 5 U.S 137; 2 L.Ed.60; 1803 U.S LEXIS 352
[5] Empress V Burrah Singh I.L.R. 3 (Cal.) 63, 87-88.
[6]S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U.J.L.& Pol’y 029 (2001), http://openscholarship.wustl.edu/law_journal_law_policy/vol6/issue 1/3
[7] J. Skelly Wright, Role of the Supreme Court in a Democratic Society -Judicial Activism or Restraint, 54 Cornell L. Rev. 1 (1968) , http://scholarship.law.cornell.edu/clr/vol.54/issue1/1
[8] 347 U.S 483(1954)
[9] Mr. Justice Holmes’ statement on this point in Southern Pac. Co. v. Jensen, 244 U.S. 205, 221 (1917).
[10] H. Mayo, An Introduction to Democratic Theory (1960).
[11] A.K Gopalan V State of Madras, A.I.R 1950 SC 27(India)
[12] Brayan A.Garner(ed.), Black‘s Dictionary 850 (1999).
[13] Baker V Carr 369 US 186 (1962).
[14] Aravali Golf Club v. Chandra Hass & Hass & Ors. (2008) 1 S.C.C 683(India)
[15] Visakha V State of Rajasthan,(1997) 6 S.C.C 241(India)
[16] T.M.A Pai foundation V State of Karnataka, (2002) 8 S.C.C 481(India)
[17] Anuradha Bhasin vs Union of India (2020)
[18] Kumar, A. and Tiwary, A., 2021. Freedom of Religion and Essential Practices Doctrine- Delineation of Evolving Contours and Role of Judiciary. Indian Legal Solution Journal of Criminal and Constitutional Law, [online] 2(4). Available at: <https://journal.indianlegalsolution.com/category/volume-2-issue-4/> [Accessed 18 June 2021].
[19] IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC, Suo Motu Writ Petition (Civil) No.3 of 2021
[20] Union of India vs Rakesh Malhotra and another, SLP (Civil) (Diary) No 11622 of 2021
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