Constitutional Law: A Project On Judicial Review and Judicial Restraint

JAMIA MILLIA ISLAMIA
CONSTITUTIONAL LAW
A PROJECT ON JUDICIAL REVIEW AND JUDICIAL
RESTRAINT
Yasir Ahmad
BALLB(HONS.) SELF FINANCE
20166136
ROLL NO. 70
SUBMITTED TO: Dr. Mohd. Asad Malik
[Type the abstract of the document here. The abstract is typically a short summary of the contents of
the document. Type the abstract of the document here. The abstract is typically a short summary of the
contents of the document.]
CONSTITUTIONAL LAW 2017
Table of Content
INTRODUCTION....................................................................................................................................... 4
(I) Judicial Review: Meaning and Definition:............................................................................................... 4
(II) Features of Judicial Review in India: ...................................................................................................... 5
(III) Critical Evaluation of Judicial Review: .................................................................................................. 7
(IV) Justification of Judicial Review: ............................................................................................................ 9
Judicial Review in India: Concept, Provisions, Amendments and Other Details ....................................... 11
Extensive Concept of Judicial Review in India: ......................................................................................... 11
Constitutional Provisions for Judicial Review: ........................................................................................... 13
Constitutional Amendments and the Use of Judicial Review: .................................................................... 15
Judicial Review under Private Law: ........................................................................................................... 17
Strategy of Judicial Review: ....................................................................................................................... 17
Writs: .......................................................................................................................................................... 18
Judicial Review and Contempt of Court: .................................................................................................... 19
Changing Trends in Judicial Review: ......................................................................................................... 20
JUDICIAL RESTRAINT............................................................................................................................ 22
Definition of Judicial Restraint ................................................................................................................... 22
Origin .......................................................................................................................................................... 22
What is Judicial Restraint ........................................................................................................................... 22
Judicial Activism ........................................................................................................................................ 23
Example of Judicial Restraint vs. Judicial Activism...................................................................................... 23
The Meaning of the Law vs. the Intent of the Law ..................................................................................... 24
Public Outcry in Judicial Restraint Example .............................................................................................. 24
Judicial Restraint in Land Contract............................................................................................................. 25
CONCLUSION ......................................................................................................................................... 27
JAMIA MILLIA ISLAMIA Page 2

ACKNOWLEDGEMENT
This project deals with judicial review and judicial restraint. I would like to show my gratitude to
our constitutional law subject teacher Dr, Mohd. Asad Malik for his constant guidance and
support.
I would also thank our Dean Ma’am for providing with such opportunities.
I owe it to the library and librarian of Law Faculty Library for providing us with the contents for
the research in this project.
I am also thankful all my friends for helping me out to make this project. I hope this project
serves its purpose and is worthwhile to all its readers.
Yasir Ahmad
20166136
Roll No. 70
B.A.,L.L.B(H.)
Self Finance

INTRODUCTION
Judicial Review
“Judicial Review refers to the power of the judiciary to interpret the constitution and to declare
any such law or order of the legislature and executive void, if it finds them in conflict the
Constitution of India.”
The Constitution of India is the supreme law of the land. The Supreme Court of India has the
supreme responsibility of interpreting and protecting it. It also acts as the guardian-protector of
the Fundamental Rights of the people. For this purpose, the Supreme Court exercises the power
of determining the constitutional validity of all laws.
It has the power to reject any law or any of its part which is found to be unconstitutional. This
power of the Supreme Court is called the Judicial Review power. State High Courts also exercise
this power but their judgements can be rejected or modified or upheld by the Supreme Court.
(I) Judicial Review: Meaning and Definition:

Judicial Review refers to the power of the judiciary to interpret the constitution and to declare
any such law or order of the legislature and executive void, if it finds them in conflict the
Constitution of India.
Judicial Review is the power of the Judiciary by which:
(i) The court reviews the laws and rules of the legislature and executive in cases that come before
them; in litigation cases.

(ii) The court determines the constitutional validity of the laws and rules of the government; and
(iii) The court rejects that law or any of its part which is found to be unconstitutional or against
the Constitution.
(II) Features of Judicial Review in India:

1. Judicial Review Power is used by both the Supreme Court and High Courts:
Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final
power to determine the constitutional validity of any law is in the hands of the Supreme Court of
India.
2. Judicial Review of both Central and State Laws:
Judicial Review can be conducted in respect of all Central and State laws, the orders and
ordinances of the executives and constitutional amendments.
3. A Limitations:
Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of
the Constitution.
4. It covers laws and not political issues:
Judicial Review applies only to the questions of law. It cannot be exercised in respect of political
issues.
5. Judicial Review is not automatic:

The Supreme Court does not use the power of judicial review of its own. It can use it only when
any law or rule is specifically challenged before it or when during the course of hearing a case
the validity of any law is challenged before it.
6. Decisions’ in Judicial Review Cases:
The Supreme Court can decide:
(i) The law is constitutionally valid. In this case the law continues to operate as before, or
(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from the
date of the judgment.
(iii) Only some parts or a part of the law is invalid.
In this case only invalid parts or part becomes non-operative and other parts continue to remain
in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot
operate without it, then the whole of the law gets rejected.
7. Judicial Review Decision gets implemented from the date of Judgement:
When a law gets rejected as unconstitutional it ceases to operate from the date of the judgment.
All activities performed on the basis of the law before the date of the judgment declaring it
invalid, continue to remain valid.
8. Principle of Procedure established by Law:
Judicial Review in India is governed by the principle: ‘Procedure Established by Law’. Under it
the court conducts one test, i.e., whether the law has been made in accordance with the powers

granted by the Constitution to the law-making body and follows the prescribed procedure or not.
It gets rejected when it is held to be violative of procedure established by law.
9. Clarification of Provisions which a rejected law violates:
While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the
constitution which it violates. The court has to clearly establish the invalidity of the concerned
law or any of its part.
(III) Critical Evaluation of Judicial Review:

Points of criticism:
1. Undemocratic:
The critics describe Judicial Review as an undemocratic system. It empowers the court to decide
the fate of the laws passed by the legislature, which represent the sovereign, will of the people.
2. Lack of Clarity:
The Constitution of India does not clearly describe the system of Judicial Review. It rests upon
the basis of several articles of the Constitution.
3. Source of from Administrative Problems:
When a law is struck down by the Supreme Court as unconstitutional, the decision becomes
effective from the date on which the judgment is delivered. Now a law can face Judicial Review
only when a question of its constitutionality arises in any case being heard by the Supreme
Court.

Such a case can come before the Supreme Court after 5 or 10 or more years after the
enforcement of that law. As such when the Court rejects it as unconstitutional, it creates
administrative problems. A Judicial Review decision can create more problems than it solves.
4. Reactionary:
Several critics regard the Judicial Review system as a reactionary system. They hold that while
determining the constitutional validity of a law, the Supreme Court often adopts a legalistic and
conservative approach. It can reject progressive laws enacted by the legislature.
5. Delaying System:
Judicial Review is a source of delay and inefficiency. The people in general and the law-
enforcing agencies in particular sometimes decide to go slow or keep their fingers crossed in
respect of the implementation of a law. They prefer to wait and let the Supreme Court first
decide its constitutional validity in a case that may come before it at any time.
6. Tends to make the Parliament less responsible:
The critics further argue that the Judicial Review can make the Parliament irresponsible as it can
decide to depend upon the Supreme Court for determining the constitutionality/ reasonableness
of a law passed by it.
7. Fear of Judicial Tyranny:
A bench (3 or 5 or 9 judges) of the Supreme Court hears a judicial review case. It gives a
decision by a simple majority. Very often, the fate of a law is determined by the majority of a
single judge. In this way a single judge’s reasoning can determine the fate of a law which had
been passed by a majority of the elected representatives of the sovereign people.

8. Reversal of its own decisions by the Supreme Court:
It is on record that on several occasions the Supreme Court reversed its earlier decisions. The
judgment in the Golaknath case reversed the earlier judgments and the judgment in the
Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment
was held valid, then invalid and then again valid. Such reversals reflect the element of
subjectivity in the judgments.
On all these grounds the critics strongly criticise the system of Judicial Review as it operates in
India.
(IV) Justification of Judicial Review:

A very large number of the supporters of Judicial Review do not accept the arguments of the
critics. They argue that Judicial Review is an essential and very useful system for Indian liberal
democratic and federal system. It has been playing an important and desired role in the
protection and development of the Constitution.
(1) Judicial Review is essential for maintaining the supremacy of the Constitution.
(2) It is essential for checking the possible misuse of power by the legislature and executive.
(3) Judicial Review is a device for protecting the rights of the people.
(4) No one can deny the importance of judiciary as an umpire, or as an arbiter between the centre
and states for maintaining the federal balance.
(5) The grant of Judicial Review power to the judiciary is also essential for strengthening the
position of judiciary. It is also essential for securing the independence of judiciary.

(6) The power of Judicial Review has helped the Supreme Court of India in exercising its
constitutional duties.
(7) The possibility of abuse of is power of by the Judiciary is very less because several checks
have been in existence:
(a) Lack of a clear statement of this power in any article of the Constitution.
(b) Judicial Review is not possible on some laws. The Parliament can place laws aimed at
securing socio-economic reforms in the 9th Schedule of the Constitution. This makes these
immune from Judicial Review.
(c) The scope of Judicial Review stand limited to only legal and constitutional cases.
(d) The Supreme Court is itself bound by the Constitution of India and the Parliament can amend
the Constitution.
(e) The grant of specific fundamental rights to the also limits the scope of Judicial Review.
(f) The Parliament can pass laws and amendments for overriding the hurdles created by Judicial
Review.
These limitations can prevent a possible misuse of Judicial Review power by the Courts.
A formidable fact which justifies the presence and continuance of the Judicial Review has been
the judiciousness with which it is being used by the Supreme Court and High Courts for carrying
out their constitutional obligations. These have used it with restraint and without creating
hindrances in the way of essential socio-economic reforms.

Judicial Review in India: Concept, Provisions, Amendments and Other

Details
The power of judiciary to review and determine the validity of a law or an order may be
described as the powers of Judicial Review’.
It means that the constitution is the supreme law of the land and any law inconsistent therewith is
void through judicial review.
It is the power exerted by the courts of a country to examine the actions of the legislatures,
executive and administrative arms of government and to ensure that such actions conform to the
provisions of the nation’s Constitution. Judicial review has two important functions, like, of
legitimizing government action and the protection of constitution against any undue
encroachment by the government.
Extensive Concept of Judicial Review in India:

The Supreme Court has been vested with the power of judicial review. It means that the Supreme
Court may review its own Judgement order. Judicial review can be defined as the competence of
a court of law to declare the constitutionality or otherwise of a legislative enactment.
Being the guardian of the Fundamental Rights and arbiter of the constitutional conflicts between
the Union and the States with respect to the division of powers between them, the Supreme Court
enjoys the competence to exercise the power of reviewing legislative enactments both of
Parliament and the State’s legislatures.

The power of the court to declare legislative enactments invalid is expressively provided by the
Constitution under Article 13, which declares that every law in force, or every future law
inconsistent with or in derogation of the Fundamental Rights, shall be void. Other Articles of the
Constitution (131-136) have also expressively vested in the Supreme Court the power of
reviewing legislative enactments of the Union and the States.
The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the Constitution
(1976), in several ways. But some of these changes have been repealed by the 43rd Amendment
Act, 1977. But there are several other provisions which were introduced by the 42nd Amendment
Act 1976 not repealed so far.
These are:
(i) Arts. 323 A-B. The intent of these two new Articles was to take away the jurisdiction of the
Supreme Court under Art. 32 over orders and decisions of Administrative Tribunals. These
Articles could, however, be implemented only by legislation. Art. 323A has been implemented
by the Administrative Tribunals Act, 1985 (ii) Arts. 368 (4)-(5). These two Clauses were inserted
in Art. 368 with a view to preventing the Supreme Court to invalidate any Constitutional
Amendment Act on the theory of ‘basic features’ of the Constitution.
These Clauses have been emasculated by the Supreme Court itself, striking them down on the
ground that they are violative in the two ‘basic features’ of the Constitution:
(a) the limited nature of the amending power under Art. 368 and
(b) judicial review in the Minerva Mills case.

The court was very reluctant and cautious to exercise its power of Judicial Review, during the
first decade, when the Supreme Court declared invalid only one of total 694 Acts passed by the
Parliament.
During the second decade the court asserted its authority without any hesitation which is
reflected in the famous Golak Nath case and Kesavananda Barti case. In these cases the Supreme
Court assumed the role of constitution making.
Indian Judiciary has been able to overcome the restriction that was put on it by the 42nd
amendment, with the help of the 43rd and 44th amendments. Now the redeeming quality of
Indian judiciary is that no future governments could clip its wings or dilute its right of Judicial
Review. In fact, now the ‘Judicial Review’ is considered to be the basic feature of our
Constitution.
Constitutional Provisions for Judicial Review:

The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution. Parliament is
not supreme under the Constitution of India. Its powers are limited in a manner that the power is
divided between centre and states.
Moreover the Supreme Court enjoys a position which entrusts it with the power of reviewing the
legislative enactments both of Parliament and the State Legislatures. This grants the court a
powerful instrument of judicial review under the constitution.
Both the political theory and text of the Constitution has granted the judiciary the power of
judicial review of legislation. The Constitutional Provisions which guarantee judicial review of
legislation are Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitution legislation.
Article 13 declares that any law which contravenes any of the provisions of the part of Funda-
mental Rights shall be void.
Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the
Supreme and High Courts.
Article 251 and 254 states that in case of inconsistency between union and state laws, the state
law shall be void.
Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to the State
List.
Article 245 states that the powers of both Parliament and State legislatures are subject to the
provisions of the constitution.
The legitimacy of any legislation can be challenged in the court of law on the grounds that the
legislature is not competent enough to pass a law on that particular subject matter; the law is
repugnant to the provisions of the constitutions; or the law infringes one of the fundamental
rights.
Articles 131-136 entrusts the court with the power to adjudicate disputes between individuals,
between individuals and the state, between the states and the union; but the court may be
required to interpret the provisions of the constitution and the interpretation given by the
Supreme Court becomes the law honoured by all courts of the land.

There is no express provision in our constitution empowering the courts to invalidate laws, but
the constitution has imposed definite limitations upon each of the organs, the transgression of
which would make the law void. The court is entrusted with the task of deciding whether any of
the constitutional limitations has been transgressed or not.
Constitutional Amendments and the Use of Judicial Review:

Until 1967, the Supreme Court upheld that the Amendment Acts were not ordinary laws and
could not be struck down by the application of Article 13 (2).
It was in the famous Golak Nath Vs. the state of Punjab case in 1967, where the validity of three
constitutional amendments (1st, 4th and 17th) was challenged, that the Supreme Court reversed
its earlier decision and uphold the provision under article 368 which put a check on the
Parliament’s propensity to abridge the fundamental Rights under chapter III of the Constitution.
In the Kesavananda Bharti Vs. State of Kerala case in 1973, the constitutional validity of the
twenty-fourth, twenty fifth and twenty ninth amendments was challenged wherein the court held
that even though the Parliament is entitled to amend any provision of the constitution it should
not tamper with the essential features of the constitution; and that Article 31c is void since it
takes away invaluable fundamental rights.
The court balances the felt ‘necessities of the time’ and ‘constitutional fundamentals’ when
scrutinizing the validity of any law. H.M. Seervai has enumerated some of the canyons,
maxims and norms followed by the court:

1. There is a presumption in favour of constitutionality, and a law will riot be declared tin
constitutional unless the case is so clear as to be free from doubt; and the onus to prove that it’s
unconstitutional lies upon the person who challenges it.
2. Where the validity of a stature is questioned and there are two interpretations, one of which
would make the law valid, and the other void, the former must be preferred and the validity of
the law will be upheld.
3. The court will not decide constitutional questions if a case is capable of being decided on other
grounds.
4. The court will not decide a larger constitutional question than is required by the case before it.
5. The court will not hear an objection as to the constitutionality of a law by a person whose
rights are not affected by it.
6. Ordinarily, courts should not pronounce on the validity of an Act or part of an Act which has
not been brought into force, because till then the question of validity would be merely academic.
7. In a later case, the Minerva Mill case, the Supreme Court went a step ahead. The 42nd
Constitutional Amendment of 1976 among other things had added a clause to Article 368 placing
a constitutional amendment beyond judicial review. The court held that this was against the
doctrine of judicial review, the basic feature of the Constitution.

Judicial Review under Private Law:

There are remedies against the actions of the executive under private law. A suit can be filed
under section 9 of the Code of Civil Procedure. The suit can be for damages from the
government or other public authority when right is violated and an injury is suffered. It can also
be for a declaration of the illegality of the administrative action.
A suit can be filed for issuing injunction against the act that threatens the rights of persons. These
remedies can, however, be specifically excluded by a statute under which the administration acts.
In such cases the statute will provide alternative remedies.
If it does not, or if the alternative remedies provided are not adequate or sufficient the aggrieved
person will have a right to file a suit. When the alternative remedies are effective the citizen will
have the right only to resort to those remedies and not the remedy under the Code of Civil
Procedure. These rules are laid down through judicial decisions.
Strategy of Judicial Review:

The strategy of judicial review can be divided broadly into public law review and private law
review. Under the Constitution, legislative and administrative actions can be reviewed by courts
under Articles 32, 136, 226 and 227. Such review is called public law review. Article 32
guarantees the right to move the Supreme Court if any fundamental right can be reviewed under
this provision.

Writs:
Article 226 can be, and is more often, used for reviewing the action of administration. One can
say that there is an increase of litigation in this respect. The High Court can issue directions,
orders or writs in the nature of habeas corpus mandamus, prohibition, quo-warranto, and
certiorari for the enforcement of fundamental rights or for any other purpose.
Habeas corpus is a write issued by the court to bring before the court a person from illegal
custody. The court will examine the legality of detention and release the person if detention is
found illegal.
Mandamus is issued to a public authority to do an act which under law, it is obliged to do or to
forbear from doing.
Prohibition is a write to prevent a court or tribune! from doing something in excess of its author-
ity. High Court has power to issue an order of prohibition to the executive authority prohibiting it
from acting without jurisdiction.
Certiorari is a write issued to a judicial or quasi-judicial authority to correct its order. This writ is
issued on specified grounds like violation of natural justice; excess, abuse or lack of jurisdiction;
fraud; and error of law apparent on the face of the record.
Quo-warranto is a writ issued to a person who authorisedly occupies a public office to step down
from that office. High courts and the Supreme Court have the power to issue not only these writs
but also appropriate directions and orders.

Judicial Review and Contempt of Court:

It is mandatory that an administrative officer or authority should obey the directions of a court
and execute the decisions of the court. What action can be court take if they do not do this? The
court has neither the sword not the purse like the executive. It has a potential power.
It has the power to take action of contempt of court. Those who violate or disobey the decisions
of the courts are proceeded against under this power. They can be punished and sent to jail.
Obviously the contempt power is the only weapon in the hand of judiciary to see that their
decisions are executed.
Locus standi is the first limitation on judicial review. This means that only a person aggrieved by
an administrative action or by an unjust provision of law shall have the right to move the court
for redressal. Under this traditional rule a third party who is not affected by the action cannot
move the court.
Another limitation is that before a person moves the High Courts and the Supreme Court invok-
ing their extraordinary jurisdiction, he should have exhausted all alternative remedies. For
example, these may be a hierarchy of authorities provided in legislation to look-into the
grievances of the affected party. The aggrieved person should first approach these authorities for
a remedy before invoking extraordinary jurisdiction of the courts.
However, the alternative remedies should be equally efficacious and effective as the remedies
available from the courts are. If they are not, the jurisdiction can be invoked. In cases of manifest
injustice and the violation of procedural fairness, alternative remedy is not a bar.

A rule has been evolved to avoid repeated adjudication on the same matter between the same
parties. If the case is finally disposed of on merits the same issue cannot be re-agitated by any of
the parties filing another case. This limitation is called res judicata.
Changing Trends in Judicial Review:

Recently there is a rising trends in judicial activism in the land. The doors of the judiciary are
kept open for redressing the grievances of persons who cannot ordinarily have access to justice.
The strict observance of the traditional rule of locus standi will do injustice to certain persons
who do not have the money, knowledge and facilities of approaching court.
In such cases if a public spirited person comes forward on their behalf courts relax the rules an
adjudicate over the matter. Thus, in the matter of socially and economically backward groups or
persons who are not aware of their rights or not capable of pursuing their case in a court, the
complex and rigorous procedural formalities are not insisted upon. At this level there are cases
when press reports were taken as write petitions and reliefs granted. Letters addressed to the
courts were also ‘treated as petitions.
Judicial review is one of the important techniques by which the courts examine the actions of the
legislature, the executive and the other governmental agencies and decide whether or not these
actions are valid and within the limits set by the Constitution.

Therefore, with the power of judicial review the courts act as a custodian of the fundamental
rights. The Indian Judiciary, given the federal structure of the Constitution, also settles conflicts
of jurisdiction in legislation between the centre and the states. With the growing functions of the
modern state judicial intervention in the process of making administrative decisions and
executive them has also increased.

JUDICIAL RESTRAINT
The term judicial restraint refers to a belief that judges should limit the use of their power to
strike down laws, or to declare them unfair or unconstitutional, unless there is a clear conflict
with the Constitution. This concept relies heavily on the uniform adherence to case law, which
encompasses decisions rendered by other judges on prior, similar cases. To explore this concept,
consider the following judicial restraintdefinition.
Definition of Judicial Restraint

Noun
1. A judicial deference to the intent of legislation, strict interpretation of the Constitution, and
strict jurisdictional interpretation of the law.
Origin
1810 First referral to a policy of judicial restraint in America
What is Judicial Restraint

Where there are laws, there are often many and varied ways to interpret them. This sometimes
comes of a lack of understanding of the intent and planning of the legislative body at the time of
the law’s creation, and other times from interpretation based on a judge’s personal views on the
matter. There are two camps when it comes to interpreting and enforcing the laws of the land –
judicial restraint, which promotes strict, and narrow interpretation; and judicial activism, which
involves decisions based on personal and/or political considerations.
While judicial restraint calls for judges to hesitate when confronted with a question of whether or
not a law should be struck down, unless it is obviously unconstitutional, even the interpretation
of what is “obviously unconstitutional” is often debated. Judges who believe in judicial restraint
place a great deal of weight on using the wording of the law and Constitution, rather than what
they believe the legislators intended during their construction, to guide their interpretation. This
is also known as “strict constructionism.”
Judicially-restrained judges also respect the principle of stare decisis, which promotes consistent,
predictable rulings on similar cases, through binding precedent. This means that the decisions
handed down by higher court judges, such as appellate and supreme court judges, must be
respected in deciding similar cases or issues.

Judicial Activism
Followers of judicial activism believe that the Constitution and laws of the land should be
interpreted with the needs and values of modern society in mind. Judges under the judicial
activism theory may use their authority to correct what they perceive to be legal injustices, as
they mold and redirect laws, and create social policy. These actions are most notable in the
protection of civil rights, and of issues considered to be of public and individual morality.
Exercise of this power may overrule prior judgments, laws, or acts of Congress.
This is a serious concern for those who believe in judicial restraint, for the obvious reason that it
allows a judge to bypass or overturn laws and policies created by Congress. This has the effect,
in the minds of many, of damaging the nation’s rule of law, and even the democratic process.
Example of Judicial Restraint vs. Judicial Activism

In the 1950s, schools in the American South remained segregated by race, with black children
being confined to a handful of schools that were, in many cases, far from their homes. A group
of 13 parents, with the help of the American Civil Liberties Union (“ACLU”), filed a class action
lawsuit on behalf of their 20 children, calling for desegregation of schools.
The U.S. Supreme Court heard the case of Brown v. Board of Education in 1954, after the state
court had ruled that the school district had rightly complied with precedent set by the Supreme
Court in the 1896 case of Plessy v. Ferguson, which ruled that public facilities must maintain
“separate but equal” accommodations for black and white people. While the theory of judicial
restraint would require the Court to maintain stare decisis, respecting the 1896 ruling, the
modern Court embraced judicial activism, choosing to promote the law in a way that was more
in line with contemporary social values.
In the case of Brown, the U.S. Supreme Court ruled unanimously to overturn the separate-but-
equalstandard, offering an updated interpretation of the civil rights afforded by the 13th and 14th
Amendments to the U.S. Constitution. In this example of judicial restraint, the Court ruled that
the 14th Amendment guarantees equal education in modern times, as it is an essential element of
every person’s public life, forming the basis of socialization, professional training, and
democratic citizenship.

The Meaning of the Law vs. the Intent of the Law
The matter of judicial activism and judicial restraint is based in the differences between
“meaning,” and “intent.” While the meaning of the Constitution, and of other laws, is derived
from the written word, or the letter of the law, this does not shed light on the intent of the people
who originally created such documents.
When trying to establish and enforce the intent of lawmakers, it is human nature for any one
person to interpret the written word according to his own experiences, values, and preferences.
Interestingly enough, both judicial activists and the judicially-restrained abhor this idea, that any
one jurist might use his personal feelings to rule on cases, or to interpret law.
Public Outcry in Judicial Restraint Example

In January, 2015, star member of the swim team at Stanford University, Brock Turner, dragged a
drunk woman behind a dumpster and violently raped her. Two other men, who happened by the
scene, stopped the rape, chasing Turner away, and getting the victim to medical care. Turner was
charged with a number of felony crimes, and tried in early 2016. Having been provided
hard evidence, and eye-witness testimony, the jury convicted Turner of:
1. Assault with intent to commit rape of an intoxicated woman
2. Sexually penetrating an intoxicated person with a foreign object
3. Sexually penetrating an unconscious person with a foreign object
The charges, which did not include the word “rape” by the letter of California law, were enough
to make the public cry foul, even before the judge handed down his sentence. Public outrage
flared when Judge Aaron Persky sentenced this white student athlete from a prominent white
family to just six months in jail.
Even as Turner’s father railed against even this sentence, which requires his son to register as
a sex offender for the rest of his life, millions of people questioned how the judge could render
such a light sentence for this horrific crime. As it turns out, Judge Persky had, according to
judicial restraint, followed the letter of California law.
When the prosecutor announced he had no plan to appeal the sentencing, the public reacted
strongly again. According to law, the prosecution can only challenge a sentence that is somehow
unlawful. The truth is, Judge Persky’s decision followed the law, as well as

the probation department’s sentencing recommendation, and so did not abuse his discretion in
rendering the extremely light sentence.
While there was nothing that the prosecution could legally do to change that fact, Judge Persky
was tried in the court of public opinion over the following weeks, as hundreds of thousands of
people called for his removal from the bench. In this example of judicial restraint guiding
sentencing, the people expressed their strong opinions that the punishment should have been
more in line with the emotional and social impact of the crime.
In light of the social uproar caused by the outcome of this case, which even caused a number of
prospective jurors to refuse to serve on a jury in Persky’s court, the Santa Clara County presiding
judge decided to remove him from criminal court hearings. Persky was reassigned to civil cases.
Those spearheading the recall movement planned to continue their efforts, noting that this was
not a permanent solution, as Persky would be allowed to transfer back to criminal court at any
time.
Judicial Restraint in Land Contract
When the Treaty of Paris ended the American Revolution, the colony of Georgia asserted
ownership of over 35 million acres of land in an Indian Reserve west of its territory. In 1795, the
Georgian legislature divided up this land, which would later become the states of Alabama and
Mississippi, into four tracts, and sold them to land developers.
This action, known as the Yazoo Land Act of 1795, was accomplished by the offering and
accepting of a number of bribes. When this became known, voters were scandalized, and voted
their leadership out in the next election. The new legislators repealed the Land Act, voting to
void the transactions completely.
Before the Land Act was repealed, Robert Fletcher purchased a tract of land from John Peck, one
of the original purchasers. Fletcher filed a civil lawsuit against Peck after the contracts were
invalidated, claiming Peck had sold him the land without holding clear title. The interesting thing
is, the two men were colluding in this legal action, hoping the Supreme Court would decide that
the Indians had not owned the land to begin with.
The Supreme Court did not cooperate, however, instead ruling that the state’s repeal of the law
was unconstitutional, in violation of the Contract Clause of the Constitution. The Court’s

opinion, written by Justice John Marshall, declared that the contract for sale was binding, and
could not be invalidated, even if it was entered into through deplorable and illegal means. In this
example of judicial restraint, the U.S. Supreme Court emphasized its authority to overturn state
laws, if they are in conflict with, or contrary to, the Constitution.

CONCLUSION
Judicial Review is the power of the Supreme Court or High Court to examine an
executive or legislative act and to invalidate that act if it is contrary to constitutional
principles. This power has been incorporated in the Constitution itself and cannot be done
away with since it is a basic feature. The researcher has analysed the ground of judicial
review. Though there is no clarity regarding the same through an analysis of case law the
researcher has attempted to arrive at certain accepted basis for such a review to take
place. In Council of Civil Services Union v Minister of Civil Service the grounds of
judicial review were stated to be jurisdictional error, irrationality, procedural impropriety,
proportionality and legitimate expectation. Jurisdictional errors are subject to review in
cases when there is a lack of jurisdiction, excess of jurisdiction or an abuse of
jurisdiction. If an administrative action appears to be irrational and satisfies the
Wednesbury Test that evolved after the case of Associated Provincial Picture House v.
Wednesbury then it can be reviewed. An action that is not in compliance with procedures
and which is not reasonable, goes beyond what is desirable can be reviewed. Lastly, if a
certain law leads to the birth of a legitimate expectation in the mind of a person which is
subsequently breached then the action leading to such a breach can be reviewed. Relevant
case laws have been used to shed light on how this concept has evolved and more
specifically they also provide clarity regarding in what circumstances such discretion can
be exercised. The research paper finally goes on to acknowledge that such a power can
be dangerous as no checks can be imposed upon it other than self imposed discipline.
Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the
exercise of their own power. It asserts that judges should hesitate to strike down laws
unless they are obviously unconstitutional. Judicially-restrained judges respect stare-
decisis, the principle of upholding established precedent handed down by past judges.

BIBLIOGRAPHY
The following books were used in the completion of this project:
 The Constitutional Law of India by Dr. J.N. Pandey

 Indian Constitutional Law by M.P. Jain
Also, the following websites were consulted for the relevant materials:
 SCCONLINE.COM
 LAWCTOPUS.COM

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JAMIA MILLIA ISLAMIA

SUBMITTED TO: Dr. Mohd. Asad Malik

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of determining the constitutional validity of all laws.

(I) Judicial Review: Meaning and Definition:

Judicial Review is the power of the Judiciary by which:

them; in litigation cases.

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(II) Features of Judicial Review in India:

2. Judicial Review of both Central and State Laws:

ordinances of the executives and constitutional amendments.

4. It covers laws and not political issues:

5. Judicial Review is not automatic:

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the validity of any law is challenged before it.

6. Decisions’ in Judicial Review Cases:

The Supreme Court can decide:

date of the judgment.

(iii) Only some parts or a part of the law is invalid.

7. Judicial Review Decision gets implemented from the date of Judgement:

invalid, continue to remain valid.

8. Principle of Procedure established by Law:

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It gets rejected when it is held to be violative of procedure established by law.

9. Clarification of Provisions which a rejected law violates:

law or any of its part.

(III) Critical Evaluation of Judicial Review:

the basis of several articles of the Constitution.

3. Source of from Administrative Problems:

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conservative approach. It can reject progressive laws enacted by the legislature.

6. Tends to make the Parliament less responsible:

of a law passed by it.

7. Fear of Judicial Tyranny:

been passed by a majority of the elected representatives of the sovereign people.

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8. Reversal of its own decisions by the Supreme Court:

subjectivity in the judgments.

(IV) Justification of Judicial Review:

protection and development of the Constitution.

and states for maintaining the federal balance.

position of judiciary. It is also essential for securing the independence of judiciary.

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have been in existence:

immune from Judicial Review.

hindrances in the way of essential socio-economic reforms.

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Judicial Review in India: Concept, Provisions, Amendments and Other

described as the powers of Judicial Review’.

void through judicial review.

encroachment by the government.

Extensive Concept of Judicial Review in India:

a court of law to declare the constitutionality or otherwise of a legislative enactment.

Parliament and the State’s legislatures.

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reviewing legislative enactments of the Union and the States.

Act 1976 not repealed so far.