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Background of the Indian

Constitution
The Government of India Act, 1935, which is considered to be the foundation of
the Constitution of India, framed by the British Parliament, did not contain any
provision for judicial review although there was a Federal Court and High Court
established under it. Part IX of the Act deals with the Judicature and Chapter 1 deals
with the Federal Court. Chapter 2 deals with the High Court in British India.
Although section 204 grants original jurisdiction to the Federal Court, the said
original and exclusive jurisdiction was confined to disputes between units of the
Federation or between the Federation and any of the units. It did not provide an
authority to entertain suits brought by the subject against the administration. The
absence of this most important power, contained in most of the modern constitutions,
in the 1935 Act had presumably been due to the influence of the unwritten
constitution of England that made it reluctant to admit such a supervisory power of
judicial review for the courts in one of her colonies.
The Constitution of India contains specific provisions under Articles 32, 226 and
227 enabling the Supreme Court and the High Courts to grant any writs named
therein for the enforcement of the fundamental rights or for any other purpose. Indian
Constitution is one of the few constitutions in the world that had given the power of
judicial review to the higher courts by making specific provisions with so much of
clarity and in unambiguous and express terms. Even in the written Constitution of the
United States, where the power of judicial review of both executive and legislative
acts had grown to disproportionate dimensions, there is no express provision for the
power of judicial review of the higher courts. When compared to England and the
United States, in India the growth and development of judicial review as a
formidable constitutional doctrine was a natural consequence flowing from the
written Constitution with specific provisions of judicial review. In India the doctrine
has been accepted and approved as one of the basic features of the Constitution1

1 Keshananda Bharti v. State ofKera1a, A.l.R. 1973 S.C. 461.

How far the framers of the Constitution have envisaged the scope and ambit of this
power, when they engraved it in the Constitution, is not evident from the discussions
and debate in the Constituent Assembly. But, it has to be noted that the developments
on this line in the public law in U.S., that has already established the institution of
judicial review as a powerful tool to control maladministration and abuse of public
power, must not have missed the attention of our constitution makers, who had
scanned the other constitutions of the world to follow and included their better
features in the Indian Constitution. Therefore, it is hard to believe that the Indian
constitution makers did not envisage the possible future conflicts between judiciary
and the other two limbs of the State in a growing pluralistic democracy like India.
It is surprising that when some other Articles which are comparatively of lesser
importance had attracted elaborate debates in the Constituent Assembly, Articles 226,
227 and 32 have drawn only very little attention in the debates despite their vast
potential for judicial supremacy over the other two organs of the state in future. It
may be presumed that the framers of the constitution have not either applied their
mind so deep as to forecast possible or eventual conflicts between the judiciary and
the other two organs of the state, or that the constitution makers themselves wanted
and envisaged the judiciary to be the final arbiter of all disputes of whatever nature
arising in the Republic. It is worthwhile to note the observation of the Parliamentary
Joint Committee in their report in this connection. They observed
The success of a constitution depends, indeed far more upon the manner and sprit in which
it is worked than upon its formal provisions. It is impossible to foresee, so strange and
perplexing are the conditions of the problem, the exact lines which constitutional
developments will eventually follow, and it is, therefore, more desirable that those upon
whom responsibility will rest should have all reasonable scope for working out there own
salvation by the method of trial and error2

2 Joint Committee on Indian Constitutional Reforms, Vol. l (Part l), Report, Para
22. c.f C.L. Anand, Constitutional Law and History of Government oflndia,
University Book Agency, Allahabad (1990), p. XXXIV

The Concept in the Constituent


Assembly
According to Dr B.R. Ambedkar, the founder of the Indian Constitution, the provisions for
judicial review and the writ jurisdiction, which guard the citizens against infringement of
their fundamental rights, is the soul and heart of the Constitution 3. The moving force behind
the Indian independent struggle was, like in many other countries, an urge for evolving a
constitutional bill of rights. This had finally crystallized into the fundamental rights enshrined
in Chapter III of the Constitution and their protective shield provided under Articles 32 and
226 of the Constitution. These extraordinary prerogative remedies are available on the
original side of the Supreme Court and High Courts. Considering the importance of these
provisions and their impact on personal liberty and other valuable rights available to the
citizens, there has been a forceful argument for extending the original jurisdiction of judicial
review to the subordinate courts also even during the Constituent Assembly debates 4.
Politically, the strong stand of the Indian National Congress for adopting the civil liberty
rights in the form of a constitutional bill of rights must have persuaded the Constituent
Assembly finally to incorporate specific provisions in the nature of judicial remedies in
theConstitution for protecting the fundamental and other valuable rights of the citizen5.
The whole trend of the debate on this aspect in the Constituent Assembly was in favour of
the British system of writ jurisdiction and judicial review. This must have happened due to
lndias long standing with England and the resultant colonial heritage, due to the influence of
English education on the national leadership, including Nehru and Ambedkar, and also due to
the sophistication of the English principle of rule of law. Owing to Indias association with
the Soviet Union and due to Nehrus commitment to democratic socialism, India Wanted to
bring about large socio-economic reforms in the form of land reforms and other radical steps.
Therefore, Nehru and some other members of the Constituent Assembly naturally wanted to
3 Constituent Assembly Debates, p. 953.
4 Argument of Mr. Naziruddin Ahmed, 7 Constituent Assembly Debates, p. 931
5 The Nehru Committee which gave its report on the fundamental rights in 1928,

safeguard the progressive and egalitarian constitution from a possible negative judicial
attitude that might prevent legitimate socio-economic reforms6
It appears the constitution makers did not want the American model of judicial review be
transplanted in India, under which the court could examine whether a law was just or fair 7.
Instead, they preferred the British model of judicial review which only seek to ascertain
whether the legislature and the executive act within their realm and limits and make sure that
they acted according to law. While speaking on the rights to property, Prime Minister Nehru
dealt with the role of judiciary thus.8
Within limits no judge and no Supreme Court can make itself a third chamber. No Supreme
Court and no judiciary can stand in judgment over the sovereign will of Parliament
representing the will of the entire community. If we go wronghere and there it can point it out,
but in the ultimate analysis, where the future of the community is concerned, no judiciary can
come in the way. And if it comes in the way, ultimately the whole Constitution is a creature of
Parliament.
The above statement clearly shows that India wanted to follow the British model of judicial
review with its restricted power of review of legislative actions and legislations. Every effort
was taken to make the Constitution specific and detailed so that the courts could not impose
further restriction on the legislature. Nehru made it clear that if despite such meticulous care
taken in avoiding invalidation of such property legislations by courts, the court did intervene;
they could get the Constitution amended, because the Constitution was the creature of
Parliament9. While making this assertion, it was doubtful whether Nehru and others in the
Constituent Assembly had foreseen the gradual empowerment of the Indian judiciary under
the specific constitutional provisions of judicial review by interpreting the said power as a
basic structure of the Constitution and, therefore, beyond the scope of amendment, and later

6 ame, S.P., Judicial Actii-'i.m in India, Oxford University Press, New Delhi
(2002), p.36.
7 1d., at p.37
8 9 Constituent Assembly Debates, p. 1197
9 9 Supra, n. 6 atp.37.

extending its arms even to Article 34 B of the Constitution and the IXth Schedule, which is
constitutionally insulated from judicial review.
Though, as discussed above, Nehru was against a bigger role being given to the judiciary, he
did envisage an appropriate limited role to it laying down, probably indirectly, the foundation
for the logic of the future development of the doctrine of judicial review in modern India.
Speaking in the Constituent Assembly Shri. Nehru 0pined10
But we must respect the judiciary, the Supreme Court and the other High Courts in the land.
As wise people, their duty it is to see that in a moment of passion, in a moment of excitement,
even the representatives of the people do not go wrong; they might. In the detached
atmosphere of the courts, they should see to it that nothing is done that might be against the
Constitution, that might be against the good of the country and against the community in the
larger sense of the term. Therefore, if such a thing occurs, they can function in the nature of a
third house, as a kind of third house of correction. So, it is important that with this limitation
the judiciary should function.
Dr Ambedkar had, on the contrary, a definite vision about the proactive role of the
judiciary. This is evident from his categorical statement on Article 32 which runs :
If I was asked to name any particular article in this Constitution as the most important- an
article without which this Constitution would be a nu11ity I could not refer to any other
article except this one. It is the very soul of the Constitution and the very heart of it and I am
glad that the House has realized its importance.
The above stand of Dr. Ambedkar, it appears to be influenced by the historical fact that Dr
Ambedkars fight was not only against foreign rule but also against the tyranny of the caste
Hindus and social injustice that the pre-British indigenous regimes had perpetratedlz. One
may think that he was bound to be skeptical of the legislative supremacy and wanted a
counter majoritarian safeguard such as judicial review11.
Dr. Ambedkar was more fascinated by the British system of constitutional legal remedies in
the form of specific prerogative writs and found them to be more efficacious and inalienable
10 9 Constituent Assembly Debates, pp. 1197-9s.
11 Ibid.

if they are given constitutional coverage and protection. Therefore, during his debate on draft
Article 25 (Article 32) he argued":
These writs have been in existence in Great Britain for a number of years. Their nature and
the remedies that they provided are known to every lawyer and consequently we thought that
as it is impossible even for a man who has a most fertile imagination to invent something
new
that it was hardly possible to improve upon the writs from the British position, Dr. Ambedkar
might not have contemplated the improvement and development that the Indian judiciary had
given to these traditional writs in the Indian context, which had taken judicial review in India
far ahead of its stand in England. He could not have thought that a generation of activist
judges would carry the doctrine to its fullest extent in future and would convert the writs the
most effective weapon in the judicial armory to be used to establish a peopleoriented,
liberty-oriented jurisprudence in the public law in India. Many of the statements of Dr.
Ambedkar signify that he was an ardent supporter of the British system. He said12:
I prefer the British method of dealing with rights. The British method is a peculiar method,
a very real and a very sound method. British jurisprudence insists that there can be no right
unless the Constitution provides a remedy for it. It is the remedy that makes a right real. If
there is no remedy, there is no right at all, and I am, therefore, not prepared to burden the
Constitution with a number of pious declarations, which may sound as glittering generalities,
but, for which the Constitution makes no provision by way of a remedy. It is much better to be
limited in the scope of our rights and to make them real by enunciating remedies than to have
a lot of pious wishes embodied in the Constitution. I am very glad that this House has seen
that the remedies that we have provided constitute a fundamental part of this Constitution.
However, on going through the debates in the Constituent Assembly, the unarticulated
apprehension of Dr. Ambedkar on the Writ jurisdiction and the power of judicial review
under the Constitution framed on the basis of the British system, one may be confused as to
whether it is apprehension expressed or faith reposed that has turned out to be true. But it is
only conceivable that a Constituent Assembly consisting of representatives of various
interests and groups of the society at that time could not precisely contemplate and perceive
all the future developments that may occur in the legal and judicial systems in the nascent
12 1a., at pp. 953-954

democracy. Constituent Assembly had been guided by the basic principles and concepts
which other democratic countries have proved to be successful by then. However, it could be
seen from the ocean of case law in India in this jurisdiction that the concept of the
Constituent Assembly on judicial review and writ jurisdiction still holds good and has proved
that there can be no right unless the Constitution provides aremedy.

Initial approach of the Indian


Judiciary
Although the scope of this study is confined to the jurisdictional parameters of judicial review
under Article 226 of the Constitution in respect of academic decisions, before entering the
subject it is essential to have a glance of the general approach and attitude of the Supreme
Court of India towards the constitutional power of judicial review and its development in the
first decade of the Indian Supreme Court. It was made clear by the Supreme Court at the
outset that Article 32, though itself a fundamental right that enables the Supreme Court to
issue writs, is subject to a limitation that it could be invoked only as against infringement of a
fundamental right, and not for any other right or for any other purpose

13

But, at the same

time, it was held14 that Article 32 does not merely confer powers on the Supreme Court as
Article 226 does on the High Courts... as part of its general jurisdiction.
On the other hand Article 32 provides a guaranteed remedy for the enforcement of those
rights, and this remedial right is itself made a fundamental right by being included in Part
III... The jurisdiction thus conferred on the Supreme Court by Article 32 is not concurrent
with the one given to High Court under Article 226. The restraint with which the Supreme
Court had approached the exercise of the writ jurisdiction by the High Courts and the
enthusiasm that the High Courts have shown in enjoying its newly installed constitutional
prerogative in the first decade of independence is evident from the following observation that
the Apex Court was constrained to makels:
13 A.K. Gopalan v. Stare 0fMadras, A.l.R. l95O S.C. 27 at p. 32
14 Romesh Thappar v. The State 0fMadras, A.l.R. 1950 s.c. 124