Judicial review maintains constitutionalism
Dr Vijay Srivastava and Devender Goel
Although it enjoys the similar currency globally, judicial review is exercised differently in different political sets-up. In countries like United States of America (US), England, India and Nepal the doctrine of judicial review finds a significant place.
While laying down the doctrine, Chief Justice Marshal of US Supreme Court in the landmark judgement of Marbury v. Madison (1803) held that it is the duty of judicial department to say what law is. In saying so, he acknowledged the principle of ‘Jura Matrix.’ Importantly, after reading the observation of Chief Justice Marshal, what becomes clear is that the Constitution is supreme in the US and judiciary holds the ultimate power to interpret the laws of the land.
Similarly, in the United Kingdom (UK), where the Constitution is unwritten and parliament is sovereign, the courts have been conferred with power to interpret the laws. In Germany, the Constitutional Court is empowered to strike down not only ordinary laws but also Constitutional amendments for being incompatible with basic features of the Constitution. Interestingly, the concept enjoys similar currency in Nepal as well.
In the Federal Democratic Republic of Nepal, there has been a tussle between parliament and Supreme Court. While deciding on a writ petition, the top court dissolved the Constituent Assembly on May 28, 2012 to put an end to frequent extensions of (life of) the assembly.
It’s a sacrosanct principle embodied under the Constitutions which gives room for the judicial department to act freely for maintaining Constitutionalism in the state. It has been hailed as the basic structure of the Constitution in India. In this way, the doctrine becomes the most potent weapon in the hands of the judiciary for quickening the pulse of rule of law.
In contrast, the conception of judicial review is supported by the principles of ‘Rule of law’ which has been observed as is one of the proud heritages of eastern (Sanskrit) philosophy.
Its horizon further broadens when it comes to acknowledge that the notion does not allow the other wings of government to enact any piece of legislation in contravention to the rights conferred by the Constitution. Nor, does it permit the executives or administrative authorities to offend the principles of natural justice. In this regard, Article 1 of Constitution of Nepal envisages that all the laws inconsistent to the Constitution shall, to the extent of such inconsistency, be void.
The drafters of Nepali Constitution have clarified with all words that the 2015 Constitution is the fundamental law of the land which cannot be abrogated with any other laws of legislature. So, in way or the other, this Article establishes the fact that Constitution is supreme in Nepal—like India but unlike England where parliament is supreme.
Judicial review is a procedure established in Britain where the courts have been conferred power to supervise the exercise of public power. The credit for expounding this theory goes to Professor AV Dicey who was reluctant to recognise a separate system of administrative courts to review the decisions of public bodies.
The constitutional theory of judicial review has long been dominated by the ‘Doctrine of Ultravires’, wherein a decision of public authority can only be set aside if it exceeds the powers granted to it by the parliament. The concept has a close nexus with the object clause of memorandum of any incorporations (companies) established under Company legislations.
In the US, the doctrine of judicial review has been accepted wholeheartedly even though the doctrine of separation of powers has been acknowledged (by the drafters of the American Constitution). It may be noted that the legislative powers have been vested in the Congress, the executive powers in the President and the judicial power rests with the Supreme Court and the courts subordinate thereto. Under the power of judicial review, the Supreme Court can set aside any order passed or action taken by an administrative authority or agency if it’s inconsistent with ‘due process’ clause of the Constitution.
The major step at this venture was taken by the US top court in the popular case of Marbury v. Madison in 1803. Chief Justice Marshall observed that the Constitution of US is the ‘Supreme law of the land’ and it is inherent the duty of the court to declare what the law is.
Similarly, the Constitution of India acknowledges the doctrine of judicial review through several Articles namely, 13, 32, 131 to 136, 143, 226 and 246. The concept in India does not necessarily depend upon a single Article. Nor its ambit is restricted to the spheres of fundamental rights. It extends to entire length and breadth of the Constitution.
So, in this way, the expression of judicial review is firmly rooted in India, and has the express sanction of the Constitution. As per the mandate of Article 13, any law which contravenes with any of the provisions contained under the chapter of “Fundamental Rights” shall be void.
The charter has also left scope for judicial scrutiny of pre-constitution legislations. More so, Article 32 and 226 confer the Supreme Court and High Courts, respectively, to stand at the capacity of protector of fundamental rights.
Like the US, the highest court in India in the leading case of Kesavananda Bharati v. State of Kerala (AIR 1973) held that the judicial review is not only an integral part of the Constitution but also a basic structure of the Constitution, which cannot be abolished or whittled down even by an amendment of the Constitution.
Like the Indian Constitution, the Constitution of Nepal too imposes a mandatory obligation on the state not to enact any law which could harm the spirits of the Constitution. Also, Article 46 empowers the Supreme Court and High Court under Articles 133 and 144, respectively, to implement the fundamental rights guaranteed to citizens under part-III of the charter.
At this background, it bears relevance to mention the grounds of judicial scrutiny.
The judicial review of any administrative action can be exercised on four grounds, i.e., illegality, irrationality, procedural impropriety and proportionality. These grounds of judicial review were laid down by Lord Diplock in Council of Civil Services Union v. Minister of Civil Services (1984). However, the yardstick judgement on this principle (of judicial review) was pronounced back in 1948 in the Wednesbury case.
There is a common perception that the judiciary in India, Nepal or US has been playing a constructive role over the years. It has moved a step ahead in right direction to cement the walls of Constitutional democracy in the Republics of India, Nepal or US. In doing so, the Court has unfolded a new beginning that the judiciary has power to interpret the laws and it’s pledged to irrigate the concerns of Constitutionalism.
It would be just to conclude that sovereignty is located neither in parliaments of Nepal, India, US or England nor in the judiciary but in the Constitution itself.
Dr Srivastava is Assistant Professor of Comparative Law at Uttaranchal University, Dehradun and Mr Goel is student of LL.M (Constitutional Law) at Faculty of Law College Dehradun, Uttaranchal University.
Published on March 8, 2018
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