INTRODUCTION:

Judicial Review - Two prime functions:

(1) Legitimizing government action; and

(2) To protect the constitution against any undue encroachment by the government.

The most distinctive feature of the work of United States Supreme Court is its power of judicial review. As guardian of the constitution, the Supreme Court has to review the laws and executive orders to ensure that they do not violate the constitution of the country and the valid laws passed by the congress.

The power of judicial review was first acquired by the Supreme Court in Marbury vs. Madison case. 1803².

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 encroachment.

Being the guardian 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."

Judicial Review – Relation Between India & USA

Concept in USA:

The doctrine of judicial review is one of the invaluable contributions of the U.S.A. to the political theory. Its origin has been the result of a judicial decision and its continuance has been possible due to some conventions. The concept of judicial review was developed by Chief Justice Marshall of the American Supreme Court in the famous Marbury v. Madison case (1803)³. In this case Chief Justice Marshall laid down that the judiciary has the power to examine the laws made by the legislature. It was also declared that if any such law is found to be in violation of the constitution, then such a law would be declared by the court as ultra-vires of the constitution. While doing so the Supreme Court referred to Article VI, Section 2 of the Constitution.

OBJECTIVES:

Judicial review is important because laws passed need to be checked to make sure they are constitutional. Judicial review is important because it allows the higher courts to review the outcomes of the lower courts. It helps to check on the other branches of government. The main importance of judicial review is to protect individual rights, to balance government powers and to create and maintain equality to every person. The system of civil liberties that we know of today would be very different without judicial review.

The U.S. Constitution does not mention judicial review. This power, however, was used before 1787 by courts in several of the American states to overturn laws conflicting with state constitutions. In 1789 the Congress of the United States passed the Judiciary Act, which gave federal courts the power of judicial review over acts of state government. This power was used for the first time by the U.S. Supreme Court in Hilton v. Virginia (1796)⁴.

Judicial Review as formulated by Chief Justice Marshall of the American Supreme Court had a no. of objectives:

i. To uphold the principle of the supremacy of the Constitution.

ii. To maintain federal equilibrium i.e. balance between the centre and the states.

iii. To protect the fundamental rights of the citizens.

Due process of law as the basis of Judicial Review:

On the basis of the Fifth Amendment of the Constitution, the scope of judicial review has become very vast. In one of its clauses, it has been laid down that “the Government cannot deprive anyone of life, liberty or property without due process of law.” The term “Due Process of Law” means that the life, liberty or property of the people cannot be subjected to arbitrary and unfair limitations by the law or the executive or even by the judges in the process of awarding punishments. In simple words, it stands for free and fair trial for meeting the ends of justice. The Supreme Court has used this principle to determine the validity of laws. The Supreme Court while conducting judicial review, tests (1)as to whether the law has been made strictly in accordance with the provisions of the Constitution or not; and (2)as to whether the law satisfies the ends of justice and meets ‘due process of law’ i.e. whether it is fair and just or not. The law is declared invalid if it fails to satisfy either of these two tests.

Limitations on the Supreme Court in respect of Judicial Review:

1) The Court does not conduct judicial review over political issues.

2) While declaring a law unconstitutional the Court has to assign reasons and specify the provisions of the Constitution that it violates.

3) The Supreme Court conducts judicial review only in cases actually brought before it. It cannot initiate the process of its own.

4) The law declared invalid ceases to operate for the future. The work already done on its basis continues to be valid.

5) The Court has to demonstrate clearly the unconstitutionality of the law which is sought to be declared invalid.

Relation between India and USA:

In the case of Charanjit Lal v. The Union of India⁵, Justice Mukherjee observed: “The court should prima facie lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground.” In pursuance of this attitude the Supreme Court of India has enunciated the doctrine of severability, which implies that only those portions of the law are declared as void which are inconsistent with the provisions of the Constitution and the rest of the law is permitted to operate. The Courts in India have exercised power of judicial review with great restraint and attached more importance to the express words of the Constitution rather than the spirit of the Constitution.

Judicial Review under the Constitution of India stands in a class by itself. Under the Government of India Act of 1935, the absence of a formal Bill of Rights in the constitutional document very effectively limited the scope of Judicial Review power to an interpretation of the Act in the light of the division of power between the centre and the units. Under the present Constitution of India the horizon of judicial review was in the logic of events and things, extended appreciably beyond a ‘formal’ interpretation of ‘federal’ provisions.

The debates of Constituent Assembly reveal, beyond any dispute, that the judiciary was contemplated as an extension of the Rights and an ‘arm of the social revolution’. Judicial Review was accordingly, desired to be an essential condition for the successful implementation and enforcement of the Fundamental Rights. Members of Constituent Assembly were agreed upon one fundamental point that Judicial Review under the new Constitution of the U.S.A., where the doctrine was more an ‘inferred’ than a ‘conferred’ power and more implicit than ‘expressed’ through constitutional provisions.

In the Report of the abhor Committee of Supreme Court, it was recommended that “a Supreme Court with jurisdiction to decide upon the constitutional validity of acts and laws can be regarded as a necessary implication of any federal scheme”. This was eventually extended to an interpretation of the laws and executive orders on the touchstone of the Fundamental Rights. In the Draft Constitution of India, this power of Judicial Review in relation to fundamental rights found formal expression in Art. 8 (2) and Art. 25 (1) & (2) which, when adopted by the nation’s representatives in the Constituent Assembly on November 26, 1949, became the new Arts. 13 (2) and 32 (1) & (2), respectively, under the Constitution of India.

The place of ‘Judicial Review’ in Indian Constitution & History:

In post-independence India, the inclusion of explicit provisions for ‘judicial review’ were necessary in order to give effect to the individual and group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provision related to the same as the ‘heart of the Constitution’.1 Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.

Judicial Review of India for the first time saw its light in Emperor v. Burah⁶. The Calcutta High Court as well as Privy Council adopted the viewthat the Indian courts had power of Judicial Review under certain limitations. This view was further reaffirmed in certain other case before the Government of India Act of 1935 came into operation. By the Government of India Act of 1935 Federation was introduced and the experiment in Judicial Review took a new approach under the Constitution of 1950 Judicial Review assumed an important role in the Indian democracy. Its working under the present Constitution of India, is a real protection of liberty and freedom of the people. Some Indian writers have observed that the scope of Judicial Review in India is very limited and the Indian Courts do not enjoy as wide jurisdiction as do Courts in America. In their opinion it is due to the ‘Due Process’ clause that the America courts have wider scope; in India the scope of Judicial Review is narrower⁷.

While judicial review over administrative action has evolved on the lines of common law doctrines such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7^th schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures.

Hence the scope of judicial review before Indian courts has evolved in three dimensions – firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence between the centre and the states. The power of the Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights.

The Constitution makers of India very wisely incorporated in the Constitution itself, the provisions of Judicial Review so as to maintain the balance of federalism, to protect the fundamental rights guaranteed to the citizens and to afford a useful weapon for equality, liberty and freedom. So observed Patanjali Sastri, J., in State of Madras v. V.G. Rao⁸, Justice Khanna, former judges of the Supreme Court of India has in his book “Judicial Review or confrontation” made the following remarks in this connection “Judicial Review has constitutional system and a power has been vested in the High Court and the Supreme Court to decide about the constitutional validity of the provision of the statutes”.

This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law – such as habeas corpus (to direct the release of a person detained unlawfully), mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself). Besides the Supreme Court, the High Courts located in the various States are also designated as constitutional courts and Article 226 permits citizens to file similar writs before the High Courts. With the advent of Public Interest Litigation (PIL) and dilution of concept of locus standi in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a ‘continuing mandamus’ for ensuring that executive agencies comply with judicial directions. Article 32 has been creatively interpreted to shape innovative remedies such as a ‘continuing mandamus’ for ensuring that executive agencies comply with judicial directions.

Judicial Review as a part of the Basic Structure:

In the celebrated case of Keshavanda Bharathi v. State of Kerela⁹, the Supreme Court of India the propounded the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution, The Judges made no attempt to define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five basic features:

1. Supremacy of the Constitution.

2. Republican and democratic form of Government.

3. Secular character of the Constitution.

4. Separation of powers between the legislature, the executive and the judiciary.

5. Federal character of the Constitution.

He observed that these basic features are easily discernible not only from the Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of dignity and freedom of the individual which could not by any form of amendment be destroyed. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. The Constitutional bench in Indira Nehru Gandhi v. Raj Narain¹⁰ held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure.

In S.P. Sampath Kumar v. Union of India¹¹. P.N. Bhagwati, C.J., relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. In Sampath Kumar the Court further declared that if a law made under Article 323-A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

In Kihoto Hollohan v. Zachillhur¹² () another Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.

Subsequently, in L. Chandra Kumar v. Union of India¹³ a larger Bench of seven Judges unequivocally declared:

"that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure".

Though one does not deny that power to review is very important, at the same time one cannot also give an absolute power to review and by recognizing judicial review as a part of basic feature of the constitution Courts in India have given a different meaning to the theory of Checks and Balances this also meant that it has buried the concept of separation of powers, where the judiciary will give itself an unfettered jurisdiction to review anything everything that is done by the legislature.

Grounds Of Judicial Review:

Judicial Review can be exercised on four grounds:

1. Illegality

2. Irrationality

3. Procedural Impropriety

4. Proportionality

Illegality: -

Body acting beyond the powers which are prescribed for it. In other words, it acts ultra vires or there is lack of jurisdiction.

· Decisions taken for improper purposes may also be illegal: Abuse of Jurisdiction

· Excess jurisdiction

· Failure to exercise jurisdiction

Irrationality: -

The principle of reasonableness has been laid down in Wednesbury Corporation case which is thenceforth referred to as the Wednesbury principle.

It has three elements:

· The authority should take all relevant facts into consideration;

· It should exclude all irrelevant facts from consideration; and

· "Irrational" means absurd or illogical - a decision, which no person properly advised on the facts, would come to.

Procedural Impropriety:-

Under procedural impropriety various refinements of the principle of natural justice can be grouped.

· Breach of the principle fair hearing

· Breach of rule against bias

· If a statute prescribes a procedure then administrative authority should follow such procedure, violation of such procedure might vitiate an administrative action.

· Implied requirement where statute is silent about principles of natural justice.

In Union of India v. G. Ganayutham¹⁴ The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety.

Proportionality:

“you must not use a hammer to crack a nut if a nut cracker would do”.

· Proportionality broadly requires that government action must be no more intrusive than is necessary to meet an important public purpose.

· Proportionality means that action should not be more drastic than it ought to be for obtaining the desirable result.

· It insists that administrative authority cannot exercise their discretion as they like, they are under an obligation to make a judicious balance between the community and individual interest and must abstain from taking an action which will put burden on the individual.

In Ranjit Thakur v. UOI¹⁵ the question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. (Proportionality) But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence not amount in itself to conclusive evidence of bias.

The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court- Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.

In Omkumar v. Union of India¹⁶ court held with respect to Article 14 of the Constitution of India, Supreme Court concluded that when an administrative action is challenged as discriminatory the courts would carry out a primary review using the doctrine of proportionality. However when an administrative action is questioned as arbitrary the principle of secondary review based on Wednesbury principle applies

Explanation Through Articles & Cases:

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 Article-: 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 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.

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.

The first suit brought before the Supreme Court was State of west Bengal vs. Union of India¹⁷ in 1961 to declare the unconstitutionality of the coal bearing Area Act 1957. In this case the court held that the States under the Constitution are not sovereign and that the union has authority to acquire compulsorily land belonging to State Governments.

In Shankari Prasad vs. Union of India (1951)¹⁸ 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 case (1964)¹⁹, 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 Punjab (1967)²⁰ 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 under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed.

· Article 368 only provides a procedure to be followed regarding amendment of the constitution.

· Article 368 does not contain the actual power to amend the constitution.

· The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list.

· 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.

· 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.

· 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.

· 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 case (1980)²¹ 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 ipso facto destroy an essential element of the basic structure of our constitution.

In Champakam Dorairajan v. State of Madras²², the Government of Madras reserved seats in state medical and engineering colleges for different communities in certain proportions on the basis of religion, race and caste. This was challenged as unconstitutional. The government defended its order on the grounds of article 46 of the Constitution, which permits the state to promote with special care the educational and economic interests of the weaker sections of the people and in particular scheduled castes and scheduled tribes to secure social justice. But the Supreme Court struck down the order as it was violative of equality guaranteed under article 15(1) and observed that directive principles can't override the guaranteed fundamental rights.

As a result, the Parliament brought an amendment [The Constitution (First Amendment) Act, 1951.] to article 15 and inserted clause (4).

Indra Sawhney v. Union of India²³ popularly known as Mandal Commission case. In this case, the Supreme Court has exhaustively dealt with reservation policy and upheld the validity of the Mandal Commission report. The court held that caste is an important criterion for determining backwardness of a class, but it is not the sole criteria. The court further held that reservation cannot exceed the limit of 50% as laid down in Balaji v. State of Mysore²⁴. Moreover, the court evolved the concept of "creamy layer" and held that creamy layers in backward classes have no place in reservation system. But the Court failed to give a precise definition of "creamy layer". It was held that persons who are employed in higher services like IAS, IPS, and All-India services or near about as persons having reached a higher level of social advancement and economic status are not to be treated as backward, but to be treated as "creamy layer". This has again led to controversy and confusions as to what income should be treated as base to determine "creamy layer".

The Kerala High Court considered annual income of the year preceding the year of admission as the basis P. Meerakutty v. State of Kerala,²⁵ whereas the Punjab and Haryana High Court held that it should be the average of last five years' income. Gouri Sankar v. State of A.P²⁶

P.A. Inamdar v. State of Maharastra²⁷ the Supreme Court abolished state quotas in private unaided professional colleges and specifically held that the state could not impose reservations in unaided institutions. This led to the passing of the Constitution (Ninety-third Amendment) Act, 2005 by the Parliament in December, 2005

Expansion of Judicial Review through Judicial Activism:

After the draconian exposition of power by the Executive and the Legislature during Emergency the expectations of the public soared high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions. Likewise the judiciary has taken an activist view the Beginning with the Ratlam Municipality case²⁸ 12the sweep of Social Action Litigation13 had encompassed a variety of causes14.

With the interpretation given by it in Menaka Gandhi case the Supreme Court brought the ambit of constitutional provisions to enforce the human rights of citizens and sought to bring the Indian law in conformity with the global trends in human-rights-jurisprudence. This was made possible in India, because of the procedural innovations with a view to making itself more accessible to disadvantaged sections of society giving rise to the phenomenon of Social Action Litigation/Public Interest Litigation15. During the Eighties and the first half of the Nineties, the Court have broken there shackle’s and moved much ahead from being a mere legal institution, its decisions have tremendous social, political and economic ramifications. Time and again, it has sought to interpret constitutional provisions and the objectives sought to be achieved by it and directed the executive to comply with its orders.

SAL, a manifestation of judicial activism, has introduced a new dimension regarding judiciary's involvement in public administration16. The sanctity of locus standi and the procedural complexities are totally side-tracked in the causes brought before the courts through SAL. In the beginning, the application of SAL was confined only to improving the lot of the disadvantaged sections of the society who by reason of their poverty and ignorance were not in a position to seek justice from the courts and, therefore, any member of the public was permitted to maintain an application for appropriate directions.

The new role of the Supreme Court has been criticised in some quarters as being violative of the doctrine of separation of powers; it is claimed that the Apex Court has, by formulating policy and issuing directions in respect of various aspects of the country's administration, transgressed into the domain of the executive and the legislature. As Justice Cardozo puts it, "A Constitution states or ought to state not rules for the passing hour but principles for an expanding future." It is with this view that innovations in the rules of standing have come into existence.

A Word of Caution:

There are many examples where Supreme Court has decided a lot of cases in the field of social welfare. But this pleasing and positive personality of the court and evolution of the PIL created a lot of the problems also.

These all judgments are best at their place but this does not mean that judicial activism is always found to be in good line. Following two judgments will tell us what harm judicial activism could cause.

In Ashok Hurra vs Rupa Bipin Zaveri²⁹ , the plaintiff and the defendant filed for divorce by mutual consent after a few troubled years of marriage. However, the wife withdrew her consent before divorce was granted. Keeping this in mind, the lower court did not grant divorce to the husband. However, taking into consideration the fact that consent had been withdrawn after the 18 month period prescribed under the Hindu Marriage Act, the High Court granted divorce. The wife appealed to the Supreme Court. In the meantime, the husband got married elsewhere and had a son. The Supreme Court held that although the husband ought not to have married before the disposition of the appeal, irretrievable breakdown of marriage had taken place. The parties had been suffering for 12 years and hence it would not be right to prolong their agony. Although the court made serious remarks about the behaviour of the husband, it was held that divorce had been granted and that the second marriage was valid.

This Shocking and astounding judgment well and truly defeats the purpose of an appeal to the Supreme Court. The Supreme Court accepted that the husband should not have remarried before the disposition of the appeal but at the same time, it held the second marriage valid. Granted that there was no possibility of reconciliation in the marriage with Rupa Hurra, but the manner of grant of divorce deserves serious criticism. Since the appeal was pending in the apex court, it cannot be said that divorce had been granted with finality. Yet the husband remarried, and yet the marriage was held to be valid by the Supreme Court. This may become a weapon in the hands of the people wanting to get remarried before disposition of appeals in higher courts.

In Arnit Das vs. State of Bihar³⁰ A crime of murder was registered at Patna according to which one Abhishek was shot dead. On 13.9.1998 the petitioner was arrested in connection with the said offence. A day later the petitioner was produced before the Additional Chief Judicial Magistrate, Patna who after recording his statement remanded him to a Juvenile home in Patna. The petitioner claimed to have been born on 18.9.1982 and therefore a juvenile, entitled to protection of The Juvenile Justice Act, 1986. The petitioner's claim was disputed on behalf of the prosecution. The A.C.J.M. directed an enquiry to be held under Section 32 of the Act. The petitioner was referred to examination by a Medical Board. On receipt of the report of the Medical Board and on receiving such other evidence as was adduced on behalf of the petitioner, the A.C.J.M. concluded that the petitioner was above 16 years of age on the date of the occurrence and therefore was not required to be tried by a Juvenile Court. The finding was upheld by the Sessions Court in appeal and the High Court in revision. On appeal to the Supreme Court, it was decided that the crucial date is not the day on which the offence is committed but on the day on which the offender is brought before a competent authority.

It was never a disputed fact as to whether the offender was a juvenile on the date of the commission of the offence. It was hence never necessary for the Supreme Court to decide on the issue of whether the date of the commission of the offence or the date on which the offender is brought before a competent authority is the date on which the offender should be a juvenile.

The Juvenile Justice Act was enacted in order to protect the interest of Juveniles, taking into consideration the age of the person when the offence was committed. The fact that the offender may not have been well aware of the effects of his act contributes to the sanctity of the legislation. However, what happens in a case where an offender is arrested 30 years after the commission of the offence? Does one send him to a remand home with other juveniles regardless of the fact that he is not of their age? Does one try him as a regular offender regardless of the fact the offence had been committed when he was not of age?

Irrespective of how much time elapses after the incident, the offence itself remains an offence committed by a juvenile and the person should thus be judged according to his age and intent at the time of the commission of the offence. The Supreme Court however, provides no guidelines about the aforementioned issue and how this particular situation should be handled.

In a monograph "Judicial Activism and Constitutional Democracy in India" commended by Professor Sir William Wade, Q.C. as a "small book devoted to a big subject", the learned author, while recording appreciation of judicial activism, sounds a note of caution- "it is plain that the judiciary is the least competent to function as a legislative or the administrative agency. For one thing, courts lack the facilities to gather detailed data or to make probing enquiries. Reliance on advocates who appear before them for data is likely to give them partisan or inadequate information. On the other hand if courts have to rely on their own knowledge or research, it is bound to be selective and subjective. Courts also have no means for effectively supervising and implementing the aftermath of their orders, schemes and mandates, since courts mandate for isolated cases, their decrees make no allowance for the differing and varying situations which administrators will encounter in applying the mandates to other cases. Courts have also no method to reverse their orders if they are found unworkable or requiring modification".

Highlighting the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the learned author advises "the Supreme Court could have well left the decision- making to the other branches of the government after directing their attention to the problems, rather than itself entering the remedial field".

One more problem which Supreme Court is facing is the over flow of cases in Supreme Court through PILs. Now a times it is hobby of some the NGOs to file writ petitions on valuable causes off course but they don’t mind if it is frivolous and not worth.

One of the usual misunderstandings in judicial review of the action of legislature and executive seems to arise as if courts consider them self-superior to legislature and executive. If it would be like that then it will result in creation of third chamber of legislation which is against the principle constitutionalism.

CONCLUSION:

The Supreme Court of India is no doubt the finale interpreter of the constitution as we have studied and analysed from many cases. It is playing a role of protector and working at its best. With its intellect and time our supreme court has achieved a lot more than bare rigid law interpreter made by the legislation. Now with its power of judicial review and judicial activism this court is doing a lot for the social welfare. It has become the last resort for the weak sections of the society.

But on the other hand this law making power in the hands of the judiciary is posing a threat to the state constitutionalism. India is following constitution and its spirit is to establish constitutionalism in the country. But this power of the Supreme Court can lead to the country where judiciary will be the head. It is synonymous of creating a third chamber of legislation, which is against the principle of constitutionalism i.e. idea of limited government where a organ of the government can be checked on the ground of being arbitrary.

So in the end I would like to say that this power requires a sense of causation while exercising it. Court should not act arbitrarily. “great powers bring great responsibilities”, this quotation of some scholar can guide the court while using its powers.

Table of Cases

1. *Marbury v. Madiso*n	5 U.S. 137 (1803)
2. *Hilton v. Virginia*	3 U.S. 171 (1796)
3. *Charanjit Lal v. The Union of India*	AIR 1981 SC 41
4. Emperor v. Burah	ILR, Calcutta, 63 (1877)
5. *State of Madras v. V.G. Rao*	AIR 1952 SC 196
6. *Keshavanda Bharathi v. State of Kerela*	AIR 1973 SC 1461
7. *Indira Nehru Gandhi v. Raj Narain*	1975 Supp SCC
8. *S.P. Sampath Kumar v. Union of India*	(1987) 1 SCC 124 at 128
9. *Kihoto Hollohan v. Zachillhur*	1992 Supp (2) SCC 651, 715, para 120
10. *L. Chandra Kumar v. Union of India*	1997) 3 SCC 261
11. *Union of India v. G. Ganayutham*	AIR 1997 SC 3387 83
12. *Ranjit Thakur v. UOI*	4 SCC 611 : 1988 SCC
13. *Omkumar v. Union of India*	AIR 2000 SC 3689
14. *State of west Bengal vs. Union of India*	A.I.R. 1963, p.1241
15. *Shankari Prasad vs. Union of India*	SC AIR. 1951 458
16. *Sajan Singh's case*	1965 AIR 845 1965 SCR (1)
17. *Golak Nath vs. The state of Punjab*	967-SLR-0301-SC
18. *Minerva Mills case*	AIR 1980 SC 1789
19. *Champakam Dorairajan v. State of Madras*	AIR 1951 SC 226
20. *Indra Sawhney v. Union of India*	AIR 1993 SC 477
21. *Balaji v. State of Mysore*	AIR 1963 SC 649
22. *P. Meerakutty v. State of Kerala*	AIR 1992 Ker 273
23. *Gouri Sankar v. State of A.P*	AIR 1982 P&H 100
24. *P.A. Inamdar v. State of Maharastra*	AIR 2005 SC 3226
25. *Ratlam Municipality case*	1980 AIR 1622,1981 SCR (1)
26. *Ashok Hurra vs Rupa Bipin Zaveri*	AIR1266 1997
27. *Arnit Das vs. State of Bihar*	AIR 2001 3575

REFERENCE:

1. 5 U.S. 137 (1803)

2. 5 U.S. 137 (1803)

3. 5 U.S. 137 (1803)

4. 3 U.S. 171 (1796)

5. AIR 1981 SC 41

6. Emperor v. Burah, ILR, Calcutta, 63 (1877).

7. Kagzi, M.C.J., The Constitution of India, Metropolitan, Delhi, 1958, pp. 85-86; (ii) Pylee, M.V., Constitutional Government in India, Asia Publishing House, Bombay, 1965, p. 501.

8. AIR 1952 SC 196

9. AIR 1973 SC 1461

10. 1975 Supp SCC

11. (1987) 1 SCC 124 at 128

12. 1992 Supp (2) SCC 651, 715, para 120

13. (1997) 3 SCC 261

14. AIR 1997 SC 3387 83

15. 4 SCC 611: 1988 SCC

16. AIR 2000 SC 3689

17. A.I.R. 1963, p. 1241

18. AIR. 1951 SC 458

19. 1965 AIR 845 1965 SCR (1).

20. 1967-SLR-0301-SC

21. AIR 1980 SC 1789

22. AIR 1951 SC 226

23. AIR 1993 SC 477

24. AIR 1963 SC 649

25. AIR 1992 Ker 273

26. AIR 1982 P&H 100

27. AIR 2005 SC 3226

28. 1980 AIR 1622, 1981 SCR (1)

29. AIR 1266 1997

30. AIR 2001 3575

Received on 04.05.2020 Modified on 06.06.2020

Res. J. Humanities and Social Sciences. 2020; 11(3):207-215.

DOI: 10.5958/2321-5828.2020.00035.2