Many Facets of Judicial Review

THE EDICT – National Law Review organised a two-day conference on Judicial Review: The Current Controversy in New Delhi on October 25 and 26. The students from NALSAR undertook the Edict initiative and the Eastern Book Company sponsored it. Some of the questions discussed at the Conference were fundamental and have been of interest to us on this blog as well. For preparing the following brief summary of the points made at the conference by various speakers, I thank Mr.Sumeet Malik and Mr.Sudeep Malik for sharing with me their draft summary. (However, I am alone responsible if there are any flaws in summing up). This is not an exhaustive summary of the conference, but only aims to understand the current controversy in the light of speeches made at the conference. Therefore, omissions, if any, are not intentional.

It may appear odd to begin with what was said at the end of the conference, but to me it seemed to make sense, considering the complexity of the issue. Sumeet Malik, who summed up the various speeches to provide a proper perspective, preferred to use the word “Judicial Action” instead of “judicial review”, as in his view, the former was value-neutral. Locating the current controversy in the law-making function of the judiciary, Malik outlined five categories of Judicial Action. They are:

A. Minimal judicial action and literal interpretation (Staying within Montesquieu’s limits). Under this, judiciary can traverse only the territory demarcated for them by the legislature and the executive, and as such, there is no controversy;

B. Creative or purpose interpretation: Controversy begins here.

C: The Oversight Function over the Executive: Executive action or malfunction: Filling in gaps and exercising oversight over the Executive inaction.

D. The Oversight Function over the Legislature: Making common law, ad hoc legislation where legislature fails to legislate, or there are lacunae in existing legislation (legislation propio vigour) and passing orders and directions and reviewing functioning of the legislature.

E. Creative interpretation which amounts to rewriting the Constitution.

Here, I present some of the themes discussed at the conference in terms of Q&A:

Q: Is Judiciary’s law-making role justified?

A: The former Chief Justice of India, Justice R.C.Lahoti felt it was justified, because of judiciary’s non-elective character, due to which it can overcome counter-majoritarian difficulties. He argued that the true test of the legitimacy of any legislation was not whether it was made by elected representatives but that was in conformity with the general will or the true common good, and the general will or the common good could only be discovered or formed by a process of dialectical reasoning. Thus any authority capable of dialectical reasoning was fit to make law.

Thus, he firstly argued that judges are fit candidates to make law since the rational dialectic comes naturally to common law judges. Secondly, he argued that judicial decisions stand and fall on the strength of their reasons, and the judicial law-making role is more interactive and broad based than is usually assumed, since there is a great deal of deliberation and involvement of parties before any significant law-making is done: especially of the sort covered by Category D. Thus there were greater safeguards to judicial law making than were commonly assumed.

Thirdly, apart from the judicial law that results, the further benefit of such judicial law making is that it provokes the legislature to act, in which case the legislature may be persuaded to replace the ad hoc judicial legislation with more comprehensive and proper legislation. This value of ad hoc judicial legislation in spurring the legislature to act where the legislature remains to choose silent is an essential part of the democratic process.

Fourthly, he argued that a great strength of the judiciary in law making was that it is not elected and so not beholden to votebanks, and could take the long view of the public interest and thus make law which was truly in the public interest. Fifthly, he made the counter-majoritarian argument that the “tyranny of the majority needs to be hemmed in by the monks in black robes”. Finally, he gave a constitutional justification, that Judges in India were bound by their oath as Judges to play an active role in law-making.

Montesquieu held judiciary in contempt because Judges during his time wrote anonymous opinions; Continental judgment writing did not give reasons/precedents, and therefore, it did not have the same prestige as the common law jurisdiction, he said.

Soli J.Sorabjee, however, suggested that Courts should not legislate. He referred to the SC’s judgment in the Visakha case, and called it as a clear case of ad hoc judicial legislation. How do we juristically defend it?, he asked, and admitted he did not have complete answer. He asked whether it could be justified, if legislature is consistently remiss.

Q: Was Supreme Court’s direction on March 9, 2005 to Jharkhand assembly to debate the confidence vote on March 11, 2005 instead of the day chosen by the Governor (March 15) and video record its proceedings justified? (Arjun Munda v. Governor of Jharkhand)

A: Justice Lahoti who was the Chief Justice who presided over the three-Judge Bench which had issued the interim order then said: “The matter was mentioned to us. It was never finally decided, as it became infructuous. There was an allegation, and a petition was filed in the Supreme Court. Constitution obligates the State to convene the session. The allegation was that the Governor, under the dictates of a party, was deliberately delaying the convening of the assembly by weeks. We found convincing evidence to show that large-scale horse trading was going on. Is it not brutal murder of Constitutional democracy? If we had not issued the order, we would not have been true to our oath.

“Our interim order was based on four reasons: 1. We followed the precedent set in 1998when the Court had issued a similar order to the U.P.assembly (when Chief Minister Jagdambika Pal was to seek a vote of confidence amidst stalemate). 2. We said: follow the Constitution in letter and spirit. 3. We only requested session must be convened, and that next hearing will be held after three weeks. Had the case been heard, we could have laid down some law. Unfortunately, the occasion never came. There was no direction to video-recording. It was just a suggestion. (Judis has no record of this order issued in W.P.(c)123 of 2005 on March 9, 2005. The Hindu of March 10, 2005 records that it was a direction). 4.The question of non-justiciability of legislative proceedings under Article 212 was not raised, though it could be said that buying and selling of MPs don’t constitute proceedings of the legislature.”

Q: How do Judges reconcile their views? What happens behind the scenes?

A: Justice Lahoti: When a Judgment is delivered, it becomes the property of the Court. Judges do deliberate controversial issues. The presiding Judge circulates his opinion. In the Minorities Educational Institutions case, there were several rounds of sittings. The Inamdar case (the latest) was heard by 7 Judges. The first Bench which decided T.M.A.Pai case was comprised of 11 Judges, while the Islamic Academy Bench had five. I told them that we would write only one opinion. Some said it should be decided by 13 Judges. After Keshavananda Bharati, there has been no 13-Judge Bench so far. I said we shouldn’t. Unanimity was achieved. I think there was no confusion in Inamdar. We just interpreted TMA Pai and Islamic Academy.

Q: Is the term “Judicial Activism” a misnomer?

A: Gopal Sankaranarayanan: We have only judicial review. We don’t talk about legislative activism or executive activism; therefore, the imputation of judicial activism is wholly wrong. If the Judges completely ignore executive and legislative inaction, it will be tantamount to violation of their oath taken under Schedule 3 to uphold the Constitution. Supreme Court used its power of review to grant remedies. Visakha laid down only guidelines, which are observed in breach even in the Supreme Court. What prevented Parliament from making a law to give effect to those guidelines? There have been 17 challenges to Constitutional amendments since 1973; only four of them have been struck down. Judiciary is restrained.

Justice Dalveer Bhandari: The judiciary was bound only to decide cases brought before them as per the Constitution: but judicial creativity is essential, and that should not be termed as judicial activism. He finally also took the consequentialist justification, that the true common good that had resulted from creative judicial interpretation of the Constitution was a reason for its justification.

Justice Thakker discussed how the concept of reading down statutes to save them had evolved from the initial binary position of striking down or not striking down a provision. He also discussed the idea of where the judiciary adds something to the legislation to save it or commends it back to the legislature for amendment in a manner that might save it.

Prof Chandrasekaran Pillai’s paper on Judicial Review of Execution of Sentences seemed to join issue with Bhandari J’s position since Prof Pillai’s paper mainly dealt with the creative interpretation applied by the Courts in interpreting various statutory and constitutional provisions relating to sentencing. Prof Pillai gave the instance of the non-remittable sentence of life imprisonment when a death sentence was commuted to life imprisonment i.e. life imprisonment for remainder of the natural term of the convict’s life, as an instance of a judicially created penal sentence by creative interpretation.

Q: Has Judiciary overstepped its limits?

A: Raju Ramachandran: We see a mood of self-congratulation. Justice Bhandari referred to judicial creativity and innovation. Judicial creativity is an aspect of judicial competence. There are two major instances when judiciary overstepped its limits: 1. Keshavananda Bharati case was the highest form of judicial activism, when unelected Judges gave themselves the power to strike down amendments if they affected basic features. 2. The Advocates-on-
Record case when Judges rewrote the Constitution and created a collegium.

Justice Srikrishna: The flexible doctrine of separation of powers that was embodied in the Constitution only permitted marginal incursions, and no organ of the State could usurp the essential functions of another organ of the State. In a Modern state the organs of the State had interdependent functions, and so the functions could not be cribbed and cabined. Hence distinction had been drawn between essential functions and non-essential functions, and essential functions were permitted to be discharged only to those organs who have been granted that power by the Constitution.

He provided a justification for this sort of judicial action by positing an emergent situations doctrine contending that legitimate judicial action is the function of acting as a check on the functioning of the other organs, and is a preventive measure that prevents administrators and legislators from converting the State into a despotic regime. Thus Kesavananda is justified because this was an exercise of emergency power to prevent the conversion of India into a dictatorship. That this kind of activism in emergent situations was absolutely necessary and legitimate.

Q: Is creative interpretation a form of judicial usurpation?

A: Soli: Take freedom of press. How did you get it? Take right of privacy. Again a creative interpretation. The judgment creating freedom of the press, did not lead to amendment of the Constitution.

Q: Can writ petitions be dismissed on the doctrine of exhaustion of alternative remedies?

A: Soli: As citizens have fundamental rights, the SC has a duty to give them appropriate relief under Art.32. Tendency to dismiss WPs must be checked. Art. 32 is a Constitutional remedy. Judges cannot impose limitations. Ambedkar had called it as “heart and soul of the Constitution”.

Q: Is Judicial Activism necessary?

Justice Srikrishna: It is like an emergency exit. It is absolutely necessary. Critical of SC’s 2005 intervention in Jharkhand assembly debate: Parliament can do the same with regard to Judiciary. Constitutional pedigree of judicial review cannot be doubted. Judicial Activism is its felicitous name; it is pursuit of ends with no regard to means. ADM Jabalpur case was one when the Court must have acted, but it didn’t.

Gopal Subramanium: Judiciary can act as a catalysis for social change: both to provoke the legislature and the executive to act, but judicial action must fall within the province of judicially manageable standards (though it was significantly remarked from the floor and Subramanium agreed that it was Judges themselves who would finally decide what judicially manageable standards were).

This judicial role of catalysing social is permissible if it is conceptualised as a mechanism wherein finally there is a substitution of the judicial laid down scheme with a better scheme by legislature. If legislature and executive just sat back and did nothing and were completely ineffective, then the judiciary, if the subject-matter concerned came within the judicially manageable corpus of rights, could take an activist role. Barring judicial interventions in the absence of judicially manageable standards and where judges had little knowledge of the subject-matter before them, the judiciary had got it right.

Q: Is Article 21 overused?

A: Justice Srikrishna: Is it a repository of all rights? There is no Fundamental Right which cannot be inexorably linked to Right to Life. Part III cannot be knocked out by Article 21. There was no such intention in the Constituent assembly Debates. Article 142 is not an independent power.

Q: Why has the Executive not notified Article 21A guaranteeing Right to Education. The Supreme Court put no limit, but Parliament trimmed the concept in Article 21A.

A: Justice Srikrishna: The uncharitable view is that Parliament wanted to cut down the Supreme court’s proposition.

Q: Is there a General Will as opposed to the Will of All? The General Will may be in consonance with the majority, but includes the interest of the future generation, whereas the Will of All refers to the interest of a transient majority, and aims to maximise consumption.

A: Sudeep Malik: In the university students election case, the Lyngdoh Report and the Supreme Court sided with the General Will.
Justice Srikrishna: The doctrine of General Will is a dangerous political doctrine.
Gopal Subramanian: The concept of General Will is very amorphous, extremely dangerous.
Sumeet Malik: General Will cannot be discovered by everyone. Mobs cannot discover the General Will. It is either Judiciary or Legislature which can discover it.
Justice Srikrishna: Articles 32 and 226 have not changed over the years. If I were in 1952, and to interpret the General Will, would these articles have remained as they are? Social values are shifting sands. There are all kinds of fancy theories.

Q: Could the Judiciary have intervened to determine the fetus life in a recent case?

A: Justice Srikrishna: Judge has no qualification to judge it medically. Parliament is supposed to have applied its mind while making the law. Judges can’t act in areas beyond their competence.

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  • I don’t know whether this has been mentioned on this blog earlier; but there is an interesting debate brewing on the “democratic foundations of judicial review”. see prof. fallon’s recent Harv. L. Rev. article – he is on the ‘side’ of judicial review. on the other side is waldron. fallon has ceded a lot of ground in his latest article – even he concedes than judicial review must occur in very limited circumstances.

    india seems to be stuck in “activism v. restraint” debate; while the real academic debate has shifted a bit further away to the existence of review itself.

    maybe a theoretical justification for activism will then be difficult to find. is the argument “executive does not act” a sufficient one on its own without any theoretical backing? would like to know your take on whether ‘practical problem-solving’ is enough to outweigh huge theoretical problems.

  • The question is whether given the “anti-democratic” nature of review powers, should the exercise of review be limited. it is in that context that the debate is interesting – in the us even the “pro-review” authors like waldron seem to be conceding that review must be in limited circumstances.

    is the existence of article 13 enough to justify extraordinary judicial activism?