JUDICIAL REVIEW: AN AUTOMATIC CONSEQUENCE OF REFLEXIVE CONSTITUITIONALISM?

Aishwarya Ayushmaan
210002 Constitutionalism connotes a culture whereby the constitutional text is accorded supremacy in regulating the political sphere Believers in this feature of the constitution therefore desire a certain degree of stability and fixity in the constitution. However, with changing times, the values which govern a society and their interpretation change thereby posing a threat to the constitution; that of becoming irrelevant and obsolete if it were to remain fixed. This is why the concept of Reflexive constitutionalism assumes importance. What remains to be seen is how this can be achieved; either solely through acts of the legislature or through judicial activism as well. This essay examines whether judicial review is a natural and necessary instrument to keep the constitution in tandem with the changing political values and principles. It also analyses some recent judgements where judicial review has been instrumental in keeping the constitution reflexive.

I. REFLEXIVE CONSTITUTIONALISM AND JUDICIAL REVIEW

Judicial review is the doctrine under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. 1 Judicial Review, though not expressly mentioned in the constitution is now accepted as part of the basic structure of the constitution which cannot be altered through amendments, thanks to landmark cases like Golak Nath v. State of Punjab2 and Keshavananda Bharati v. State of Kerala3.4 Reflexive constitutionalism implies that the constitution should be reflective of and adaptive to the changes in society.5 This requires that the constitution must change where necessary however imperceptibly. It is understandable that this responsibility lies on the legislature, the original framers of the constitution and our elected representatives. However, does the constitutional framework allow the judiciary to take up this role is the matter of contention here. Louglin argues that the ultimate goal of the modernizing constitutional movement lies in the acceptance that the judiciary is the supreme guardian of the meaning of the constitution.6 A similar implication can be derived from the Dworkins theory which believes that judges in constitutional cases are not just agents of the constitutional framers whose role is restricted to carrying out the political decisions made by the legislature.7 They are in fact, partners with the framers in an
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M.P. Singh, Inconclusive Overview of Judicial Activism in India in B D Dua et al (eds.), Indian Judiciary and Politics :The Changing Landscape (Manohar Publishers, 2008) 2 Golak Nath v. State of Punjab, AIR 1967 SC 1643 3 Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461 4 M.P. Singh, Supra note 2 5 McLoughlin, Foundations of Public Law, (OUP, 2010) pp 275-311 6 Id. 7 Waluchow, Will, Constitutionalism, Stanford Encyclopaedia of Philosophy, (Fall 2008 edition) Edward N. Zalta (ed.) available at http://plato.stanford.edu/entries/constitutionalism

ongoing political project, and thus have to be involved in some kind of moral decision making.8 By this logic then, judicial review seems justified as an automatic consequence of reflexive constitutionalism. However, if the above line of reasoning is accepted then it raises a number of questions. For instance, it is oft argued that if freedom is given to the ordinary judges to interpret constitutional limits and highly contestable moral theories of the constitution, then it could lead to unbridled judicial activism threatening both the stability and legitimacy of the constitution.9 This can be said so because each of these decisions would be based on the judges own limited expertise, integrity, objectivity and their moral inclination.10Further, judicial review could be looked at as an attempt of the judiciary to rationalize the purely political decisions of judges pursuing, consciously or not, their own political ideologies. Democracy dictates that the elected representatives of the people form policies for the people. If then they are sidelined to give way to the opinion of few elitist, unelected judges with highly debatable moral opinions, it could be considered as an affront to democracy.11 It could lead to suppression of the women, minority racial groups, poor, and so on whose interests may not be adequately recognized and protected by the dominant, mainstream ideologies to which judges generally have an affinity.12 Yet, despite the above critiques, it has time and again been seen that where the elected representatives fail to understand the change in the value system of the society or are apprehensive about challenging the existing norms due to electoral concerns, the court steps in to deliver judgements to yield consequences which would not have been possible had it been left to the legislature. Herein comes the concept of judicial activism which could said to be an extension of judicial review.13 Thus, whereas in Francis Coralie v. Delhi 14the judiciary expanded the ambit of right to life, in a series of other cases it started recognising a list of other rights such as the right to a clean environment, drinking water, livelihood, medical care and so on- something which the legislature failed to.15 Thus, the power of judicial review exercised by courts, if not a natural consequence becomes necessary in order to keep the constitution in tandem with the existing value system and needs of the society-something which is essential for a reflexive constitution.

II. CONTEMPORARY EXAMPLES OF JUDICIAL REVIEW

Naz Foundation v. Union of India16 is one recent case which elucidates how judicial review is essential for reflexive constitutionalism. Section 377 of the Indian Penal Code, 1860 arbitrarily defined the order of nature and penalised all acts beyond this definition including consensual sexual intercourse between two adult homosexuals.17 Whereas, it was long established that this law was not only archaic but unfair and violative of the Right to life guaranteed by Article 21 of the constitution, the legislature, responsible for framing of the laws, failed to repeal it due to myriad political reasons. Consequently, it led to a number of homosexuals being unnecessarily harassed by the police. It became the onus of the judiciary
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Waluchow, supra note 7 Id. 10 Id. 11 Id. 12 Id. 13 M.P. Singh, supra note 1 14 Francis Coralie v. Delhi, AIR 1981 SC 746, 753 15 M.P Singh, supra note 1 16 Naz Foundation v. Union of India, 2009 (160) DLT 277 17 Id.

then, when the matter was brought before it, to review the contentious article and examine whether it was relevant in the present social context when matters of individual liberty and the right to privacy were being given the utmost importance. As expected, the court read down the section, thus putting an end to the archaic provision which had lost it social relevance, thereby upholding the principles of reflexive constitutionalism. In Nandini Sundar v. State of Chattisgarh18, when both the Central and State governments overlooked the principles of natural justice and made provisions within The Indian Police Act, 186119 and The Chhattisgarh Police Act, 200720 for the appointment of Special Police Officers, the Court stepped in to rule that the entire process was unconstitutional as it was violative of the Fundamental Rights and that the provisions should be removed. Here also the court effectively gauged the need of the society, something which was expected of its elected representatives. A very recent judgement elucidates how judicial review of administrative functions was carried out amidst rising concern about corruption in society. The Supreme Court in Centre for PIL vs. Union of India21 quashed the appointment of P J Thomas as Central Vigilance Commissioner, saying that the recommendation made by the high-powered appointment committee headed by the Prime Minister did not consider the relevant material and as such its advice "does not exist in law".22The committee had overlooked relevant material including the pending criminal case against Thomas. Thus, judicial review (extending to activism in this case) discouraged the practice of biased appointments catering to the current needs of the society. In Krishnagiri District Private vs. State of Tamil Nadu23 , the court exercised judicial review to discourage politically motivated amendments. The amendment brought by the AIADMK government to defer implementation of the Tamil Nadu Uniform System of School Education (Amendment) Act, 2011 on the ground that it was meant to promote the interests of the previous government was quashed by the Madras High Court. Thus, the judiciary has been instrumental in keeping the constitution adaptive to the needs of the society through the power of judicial review, as enumerated in the above examples.

III. CONCLUSION
It is important for the constitution to maintain its stability in order to remain the authoritative supreme law of the land. However, being a living document it is expected to change in consonance with the society.24 While I believe that this is primarily the role of the legislature, it cannot always carry out this role effectively due to its own constraints. Hence, judicial review becomes an effective tool in achieving this goal. Thus, judicial review may not be an automatic fall out of reflexive constitutionalism but it definitely is necessary for keeping it so and as long as it is exercised with reasonable restraint will continue to remain so. ***
18 19

Nandini Sundar vs State of Chhattisgarh, Writ Petition (Civil) No. 250 of 2007 (Unreported) The Indian Police Act, 1861. 20 The Chhattisgarh Police Act, 2007. 21 Centre for PIL vs. Union of India, Writ Petition (C) No. 348 OF 2010 (Unreported) 22 Id. 23 Krishnagiri District Private vs. State of Tamil Nadu , 2010 WLR 401 24 Waluchow, supra note 7