Dr.

RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY,

LUCKNOW

CONSTITUTIONAL LAW – II

FINAL DRAFT

‘Judicial review: a comparative analysis between India, and U.S.A’

Submitted to:- Submitted by:-

Ms. Ankita Yadav Shailesh kumar

Assistant Professor (Law) Roll no. 123 (B)

B.A. LL.B. (Hons.)- 4th sem

1
ACKNOWLEDGMENT

I would like to thank and express my gratitude towards my professor Ms.

Ankita Yadav for providing guidance in making this project. I would like to
express deep gratitude for providing useful information for completing this
project.

SHAILESH KUMAR

2
TENTATIVE CHAPTERISATION

Acknowledgement...........................................................................................................2

1. Introduction.......................................................................................................4

1.1 Meaning

1.2 Definition

1.3 Origin

2. Judicial Review in India........................................................................................5

3. Cases on Judicial Review in India...........................................................................8

4. Extent of Judicial Review in India.........................................................................10

4.1 Judicial review of political issues

4.2 The basic principles of judicial review of constitutional status

4.3 Judicial activism the expansion of judicial review

5. A Comparison of Judicial Review in India with that of U.S.A...................................13

6. Restrictions on the Right of Judicial Review............................................................14

7. A Word of Caution...................................................................................................16

8.Conclusion............................................................................................................19

Bibliography...........................................................................................................20

3
1.INTRODUCTION

Literally the notion of judicial review means the revision of the decree or sentence of an
inferior court by a superior court. Judicial review has a more technical significance in
pubic law, particularly in countries having a written constitution which are founded on
the concept of limited government. Judicial review in this case means that “Courts of
law have the power of testing the validity of legislative as well as other governmental
action with reference to the provisions of the constitution.”

The Supreme Court in Kartar Singh v. State of Punjab1, explained judicial review as it is not
only concerned with the merits of the decision but also of the decision-making process. It
intends to protect the individual against the misuse or abuse of the power by a wide range of
authorities. Judicial review is a protection to the individual and not at weapon.

Section 114, CPC, 1908 defines Judicial Review as a Means to look again main object of
granting a review of judgment in reconsideration of the same matter by the same judge under
certain conditions.
ORIGIN
The doctrine of judicial review has been originated and developed by the American
Supreme Court, although there is no express provision in the American Constitution
for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had
the power of judicial review. Chief Justice George Marshall delivering the judgment stated;

“ Certainly all those who have framed the written Constitution contemplate them as
forming the fundamental and paramount law of the nations, and consequently, the
theory of every such Government must be that an act of the legislature, repugnant to
the Constitution is void”.

There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between

the Constitution and the Acts passed by the legislature, the Courts follow the
Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts
declare void the acts of the legislature and the executive, if they are found in
violation of the provisions of the Constitution.

1
(1994) 3 SCC 569 (738)

4
2. JUDICIAL REVIEW IN INDIA

The constitution of India, in this respect, is more akin 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 of 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."

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 Articles 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

5
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.

Judicial review is a great weapon in the hands of judges. It comprises the power of
a court to hold unconstitutional and unenforceable any law or order based upon such
law or any other action by a public authority which is inconsistent or in conflict with
the basic law of the land. In fact, the study of constitutional law may be described as
a study of the doctrine of judicial review in action The courts have power to strike
down any law, if they believe it to be unconstitutional.

The judgment in I.R. Coelho v. State of Tamil Nadu2 has answered this question by
establishing the pre-eminence of judicial review of each and every part of the Constitution.
The Court has laid down a two-fold test: (a) whether an amendment or a law is violative of
any of the Fundamental Rights in Part III (b) if so, whether the violation found is
destructive of the basic structure of the Constitution. If the court finds that the
impugned enactment damages the basic structure of the Constitution, it shall be
declared void, notwithstanding the fictional immunity given to it by Article 31B.Thus,
the basic structure doctrine requires the State to justify the degree of invasion of
Fundamental Rights in every given case; and this is where the court's power of judicial
review comes in.

Under our Constitution, judicial review can conveniently be classified under three heads3: -

(1) Judicial review of Constitutional amendments.-This has been the subject-matter of

consideration in various cases by the Supreme Court; of them worth mentioning are:
Shankari Prasad case4, Sajjan Singh case5, Golak Nath case6, Kesavananda Bharati case7,
Minerva Mills case8, Sanjeev Coke case9 and Indira Gandhi case10. The test of validity of
Constitutional amendments is conforming to the basic features of the Constitution.

2
(1999) 7 SCC 580
3
Justice Syed Shah Mohammed Quadri, Judicial Review of Adminstrative Action, (2001) 6 SCC (Jour) 1.
4
Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
5
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
6
Golak Nath v. State of Punjab, AIR 1967 SC 1643
7
Kesavananda Bharati v. Union of India, AIR 1973 SC 1461
8
Minerva Mills v. Union of India, AIR 1980 SC 1789
9
Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147

6
(2) Judicial review of legislation of Parliament, State Legislatures as well as
subordinate legislation.-Judicial review in this category is in respect of legislative
competence and violation of fundamental rights or any other Constitutional or legislative
limitations;

It is necessary to distinguish between ‘judicial review’ and ‘judicial control’. The term
judicial review has a restrictive connotation as compared to the term judicial control. Judicial
review is ‘supervisory’, rather than ‘corrective’, in nature. Judicial review is denoted by the
writ system which functions in India under Arts. 32 and 226 of the Constitution. Judicial
control, on the other hand, is a broader term. It denotes a much broader concept and includes
judicial review within itself. Judicial control comprises of all methods through which a
person can seek relief against the Administration through the medium of the courts,
such as, appeal, writs, declaration, injunction, damages statutory remedies against the
Administration11.

Therefore judicial review is a fundamental principle of law that every power must be
exercised within the four corners of law and within the legal limits. Exercise of
administrative power is not an exception to that basic rule. The doctrines by which those
limits are ascertained and enforced form the very marrow of administrative law. Unfettered
discretion cannot exist where the rule of law reigns. Again, all power is capable of abuse, and
that the power to prevent the abuse is the acid test of effective judicial review.12

Under the traditional theory, courts of law used to control existence and extend of
prerogative power but not the manner of exercise thereof. That position was, however,
considerably modified after the decision in Council of Civil Service Unions v. Minister for
Civil Service13, wherein it was emphasized that the reviewability of discretionary power
must depend upon the subject-matter and not upon its source. The extent and degree of
judicial review and justifiable area may vary from case to case14.

10
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
11
M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the Subject
containing
case-law reference (Indian & Foreign), 6th Ed., Wadhwa and Company Nagpur, New Delhi, 2007, p. 1779.
12
Wade, Administrative Law, (1994), pp. 39-41
13
(1984) 3 All ER 935: (1984) 3 WLR 1174: (1985) AC 374.
14
Craig, Administrative Law, (1993), p. 291.

7
At the same time, however, the power of judicial review is not unqualified or
unlimited. If the courts were to assume jurisdiction to review administrative acts which
are ‘unfair’ in their opinion (on merits), the courts would assume jurisdiction to do the very
thing which is to be done by administration. If judicial review were to trespass on the
merits of the exercise of administrative power, it would put its own legitimacy at risk.

It is submitted that the following observations of Frankfurter, I. In Trop v. Dulles15 lay

down correct legal position:

“All power is, in Madison’s Phrase ‘of an encroaching nature’. Judicial Power is not
immune against this human weakness. It also must be on guard against encroaching
beyond its proper bounds, and not the less so since the only restraint upon it is self
restraint.”

3. CASES ON JUDICIAL REVIEW IN INDIA

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.

In Shankari Prasad vs. Union of India16 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."

15
(1985) 35 US 86.
16
AIR 1951 SC 458

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In Sajan Singh's case17, the authority 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 Punjab18 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.

(1) Article 368 only provides a procedure to be followed regarding amendment of the
constitution.

(2) Article 368 does not contain the actual power to amend the constitution.

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

(4) 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.

(5) 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.

17
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
18
AIR 1967 SC 1643

9
(6) 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.

(7) 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 case19 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.

4. EXTENT OF JUDICIAL REVIEW IN INDIA

From 1950 to 1975, the Indian Supreme Court ruled that more than one hundred federal and
state case Laws, constituted unconstitutional. The judiciary in the constitutional system, made
a very important position. Indian Supreme court on a series of allegations of violation of
basic human rights under the Constitution of India conducted a judicial review of cases. The
Supreme Court's position is that any attempt to amend the Constitution related to impact of
civil rights legislation or regulations are subject to subject to judicial review. India has also
restricted judicial review of executive and legislative powers to play a role. Judicial review
of legislation from the early review extends to all acts of government or
administration. It can be said that in addition to specific case, the Court exercise their
restraint of judicial power, judicial review has almost no borders.

19
(1980) 3 SCC 625

10
4.1 Judicial review of political issues: In the early practice of judicial review, Supreme
Court of India was that if the case involved political issues, does not apply to judicial
review. But then this position has changed slowly, in Keshavananda Bharathi case, the
Court noted that "involves tampering with the Constitution judicial review of cases may
involve political issues, but only the court has the power to judge cases. interpret the
Constitution's powers should be attributed to the State jurisdiction ".

The Court's position in the later case in a series of further specific, as in S. R. Bommai case,
the court decision that "The state Governor, the President formed the basis of his political
views may be based on judgments, it is not appropriate for judicial review. If Justice
will fall into a complex political disputes, which the court should be avoided. So , the court
can not forbid the President to exercise the powers conferred on him by the Constitution,
unless the evil abuse of power, but the court also noted that" judicial review although it
cannot review the President's subjective judgments, but the president may review the basis on
which to make decisions.”

From these precedents it can be seen that the Indian courts in dealing with the basic legal and
political position of the judiciary in finding significant matters involving politics should be
careful to play its role of judicial review, and some restraint in handling cases, to avoid use of
judicial jeopardize the constitutional review powers the legislative and executive powers, but
the judiciary but also to minimize the abuse of presidential power judicial review and
supervision should be ultra vires the right balance.

4.2 The basic principles of judicial review of constitutional status: In 1973, the Supreme
Court in the landmark Keshavananda Bharathi v. State of Kerala20 case presented the basic
principles of judicial review. Legislature can amend the constitution, but cannot change the
basic principles of the Constitution. If the violation of basic constitutional principles,
constitutes unconstitutional is generally believed that the basic principles of the
Constitution of India has the following five basic points:

the supremacy of the Constitution, republican and democratic form of government, secular
constitution, legislative, administrative and judicial separation of powers and federalism.
These basic principles are throughout the Preamble to the Constitution of India and
the entire framework of the Constitution. The Constitution is built on the basic

20
AIR 1973 SC 1461

11
principles citizens on the basis of freedom and dignity, the Indian Constitution, the Law
may not deprive citizens of any form of freedom and dignity. The basic principle of the
Constitution is only a matter of principle, not exhaustive revision of the constitution limits the
power of all cases.

In the subsequent series of cases, the court of judicial review is further recognized as
one of the basic principles of the Constitution. The Court in some cases held that
judicial review is a constitutional fundamental and essential feature. If the judicial
review is absolutely deprived of the Constitution had no vitality. The Court further
pointed out that if the Supreme Court ruled out legislation enjoy the constitutional right to
judicial review, and with no other alternative mechanisms for judicial review is in
violation of the basic principles of the Constitution, the Congress, the legislation goes
beyond the scope of legislative power.

In 1997 in, L. Chaiadra Kumar V Union of India21 case, the Constitutional Court more
clearly stated that "the Constitution and Articles 32 &226 were granted to the Supreme
Court and High Court judicial review of existing legislation is a constitutional right to
an integral and essential element judicial review itself constitutes one of the basic
principles of the Constitution. Indian Supreme Court precedent established by judicial
review the basic principles of the Constitution, this Constitution and the rule of law
in India's role cannot be ignored, for enhancing the legislative and executive powers of
judicial checks and balances play an important role. But given the absolute power of judicial
review, in fact distorted the balance of power theory, to some extent, led to the expansion of
judicial review and abuse of power.

4.3 Judicial activism the expansion of judicial review: After 80 years of the 20th century,
public demand for government administration in strict accordance with the Constitution
and laws, hoping to promote administrative reform through judicial growing louder and
louder, the judiciary is also required in response to the public judicial activism began to take
position. In the subsequent case of Menaka Gandhi22, the Supreme Court to promote the
implementation of the Constitution in terms of protection of citizens basic human rights, and
to seek India's laws in line with the global trend of legal protection of basic human
rights. The court of human rights protection thanks to a series of successful litigation

21
(1997) 3 SCC 261
22
AIR 1978 SC 597

12
procedural law reform, as introduced in the procedural law of social activities on litigation,
public interest litigation and other new design of the system, so that vulnerable groups in
society can more easily enter the judicial process.

Indian court has also sought, through judicial interpretation of constitutional provisions
to achieve its goals. 80 years in the 20th century and early 90s, the Indian court
would change its traditional law enforcement agencies as a simple nature of many of
its political decision to the Indian society, the enormous social and economic change.
While judicial activism has played an active court supervision of administrative and
legislative powers, the role of the effective exercise of judicial power, to some extent
contributed to the improvement of the rule of law in India.

But on the other hand, the Supreme Court's new role of judicial activism also has
been criticized, and many Critics accused him of breach of the principle of separation
of powers, especially the Supreme Court administrative action policies and guidelines
established by the widely criticized, is considered by more powers of the executive and
legislative areas. As a result, limit the power of judicial review has become India's new task
of constitutional law.

5. A COMPARISON OF JUDICIAL REVIEW IN INDIA WITH THAT OF U.S.A

The scope of Judicial Review in India is somewhat circumscribed as compared to that

in the U.S.A. In India the fundamental rights are not so broadly corded as in the U.S.A and
limitations there on have been stated in the constitution itself and this task has not
been left to the courts. The constitution makers adopted this strategy as they felt that the
courts might find it difficult to work act the limitations on the fundamental rights and
the same better be laid down in the constitution itself. The constitution makers also felt
that the Judiciary should not be raised at the level of 'Super legislature', whatever the
justification for the methods logy adopted by the constitution makers, the inevitable
result of this has been to restrict the range of judicial review in India.

It must, however, be conceded that the American Supreme Court has consumed its
power to interpret the constitution liberally and has made so thorough a use of the
due process of law clause that it has become more than a more interpreter of law. It has, in
fact come to occupy the position of a maker of law and has been correctly described as a
'third chamber of the legislature, indeed, as a super legislature. Of course the U.S. Supreme

13
Court has assumed this position; it has not been specifically conferred upon it by the
constitution.

Like the American Supreme Court, the Supreme Court of India enjoys the power of
Judicial Review' and this power has been specifically recognized by the constitution.
However its authority in relation to 'judicial review of legislation is more restricted than that
of the American Supreme Court.

The framers of the Indian constitution took good care not to embody the due process
of law clause in the constitution. On the contrary, the Indian constitution refers it to
'procedure established by law'. It can invalidate laws if they violate provisions of the
constitution but not on the ground that they are bad laws. In other words the Indian Judiciary
including the Supreme Court is not a Third Chamber claiming the power to sit in judgement
on the policy embodied in the legislation passed by the legislature.

6. RESTRICTIONS ON THE RIGHT OF JUDICIAL REVIEW

1. A Court cannot take up a matter for judicial review sua moto. It has to wait till
the case is brought before it by the parties or through PIL.

2. The Court cannot enter into policy decisions of the government such as the economic
policy. Also matters involving political questions cannot be decided by the Court.
Only disputes inter parties can be decided by the Court.

3. The Constitution is the supreme law of the land and all state organs – Legislature and
Executive are bound by it. The Constitution has provided for separation of powers
between the Legislature, Executive and Judiciary and therefore each organ must act
within the limits prescribed for it. The Courts as interpreter of Constitution and arbiters of
legal disputes may declare any law made by Legislature or any act of the Executive
as unconstitutional if it violates the limits placed by Constitution. In doing so the
Courts have to give due regard to the powers and autonomy of the other organs. For
example Courts presume that Legislature acts are constitutional unless proved otherwise and
they interfere only in clear cases. But the cases are not always clear and therefore an
unending debate continues on the role of Courts in judging an act of the Legislature and
Executive as unconstitutional.

14
4. The main controversy is that whether amendment of the Constitution is subject to
judicial review. Art 13(4) which was added by the Constitution 24th Amendment Act,
1971 explicitly states that nothing in Art 13 shall apply to any amendment of this
Constitution made under Art 368. The same Amendment Act also added clause (3) to Art 368
which states that nothing in Art 13 shall apply to any amendment made under this
article.

In Golak Nath v. State of Punjab, the constitutional validity of Constitution (17th

Amendment) Act was challenged. The Supreme Court by 6:5 held that the word law
in Art 13(2) included amendments to the Constitution and consequently if an
amendment abridged or took away a Fundamental Right guaranteed by Part –III of the
Constitution, the amending Act itself was void and ultra vires.

To neutralize the effect of Golak Nath, 24th Amendment Act and 25th Amendment Act
(Art 31-C was added).

In Keshavananda Bharati v. State of Kerala, the constitutional validity of 24th and 25th
Amendment Act was challenged in the Supreme Court. The Supreme Court overruled the
Golak Nath’s case and it was unanimously held that the Constitution 24th Amendment
Act was valid. All the judges agreed that under the amended Art 368 all provisions of the
Constitution including those enshrining Fundamental Rights could be amended.

However, the majority of 7:6 being invalidated on the ground that it violates the
basic structure.

In I. R. Coelha v. State of Tamil Nadu, a nine Judge Constitution Bench held that any law
placed in the 9th Sch. after Apr 24, 1973 when Keshavananda Bharati’s judgment was
delivered will be open to challenge. The Court said that even though on Act is put in the 9 th
Sch. by a Constitution Amendment its provisions would be open to challenge on the ground
that they destroy or damage the basic structure.

Thus, the judiciary plays an important role as custodian of the rights of the citizens. In a
federal Constitution it has another important role of determining the limits of the powers of
the Centre and the States. It is therefore necessary that the Judiciary should be independent
and free from the influence of the Executive.

15
7. 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.

Ashok Hurra vs Rupa Bipin Zaveri23 In this particular case, 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.

23
AIR 1266 1997

16
In Arnit Das vs. State of Bihar24 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,

24
AIR 2001 3575

17
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.

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8. 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.

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