The intervention of the Indian Supreme Court in a policy matter is a matter of concern. The court decided to intervene in the existing deadlock between the Central government and the farmers to establish a committee for settling the dispute. Not only it was heavily criticized by the many it also raised on separation of judiciary from legislature. The Constitution of India is based on the principle of separation of power and yet the interpreter of the Constitution did not took the doctrine seriously while putting a stay on three legislations even without hearing the parties on both sides. Whether such step can be labelled as judicial overreach or judicial activism, it is not hard to decide. With the Supreme Court overreaching in the matters of public policy and trying to resolve political gridlocks, there is a new emergence of disruption as far as the constitutional system of checks and balances in the country is concerned. Such an intervention can set a dangerous precedent where laws can be suspended without any legal reasoning or backing. The paper would look into the power of Judicial Review in India and compare the power of judicial review with that of USA and UK. Further it would also try to analyze whether such step was actually a violation of fundamental or not.
Background of the Protest
The Parliament have recently brought new reforms in the field of agriculture by introducing three laws namelythe Farmers’ Produce Trade and Commerce (Promotion and Facilitation), the Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services and the Essential Commodities (Amendment) Act. These three acts have been heavily criticized as now it would shift the power in the hands of private sector which was earlier in the hands the local market present in each area. The change in the criterion of the MSP was also debated majorly. But all the three bills received the assent of the President and have been turned into law. The major reason for bring such changes was due to the inclusion of better infrastructure, better crop growth and more facilities which could now be provided to them. The Supreme Court of India, in its order imposed an unprecedented stay over all the three laws and directed the state to formulate a committee of member to negotiate the bill at hand.
Judicial Review in India
Doctrine of Judicial Review can be defined as the supervising power of the Judiciary over the acts of the Legislature and the Executives in the country. Such power is exercised to protect the rights of the citizen and to maintain check and balance between the three organs of the state. Judicial review also has the power to look into the judicial precedents given by the lower courts. The doctrine is the based on the concept of Rule of law and separation of power.
India follows the concept of Rule of law whether the law is supreme. The doctrine of judicial review falls under the basic structure of the Indian Constitution without any express provision mentioning about the same. The power of judicial review is an integral part of the constitution which have earlier been mentioned in Government of India Act, 1855 and the Indian Council of India Act, 1861 but there was no specific mention of the term judicial review under the same. For the first time in the case of Emperor vs. Burah the concept of judicial review was put into light. The court decided in the favour of the aggrieved who had challenged the provisions of the law, stating that every individual have the right to challenge the constitutional validity of any legislation which has been enacted by the Governor General in case he acts in derogation of the power delegated to him by the Imperial Parliament.
Doctrines of Judicial Review:
Doctrine of Eclipse is the doctrine which is applied by the courts in the cases of pre constitution laws. Article 13(1) stipulates that all the laws made by the parliament before the constitution which is inconsistent with Part III is unenforceable. In the case of Bhikaji Narain Dharkras vs. State of M.P the court used the doctrine to prevent the violation of fundamental right of the other transport operators in the business.
Doctrine of Severability states that to the extent a law is violates the fundamental right it would be void only to that specific instant. The law as a whole would not be declared void but only some part of it would be severed. In the case of A.K Gopalan vs. State of Madras section 14 of the preventive detention act was partially stuck down as it violated article 14 of the Constitution.
Doctrine of Prospective Overruling states that the earlier judicial precedent which have been overruled would not apply retrospectively but the same would apply from the next cases filled before the court. It doesn’t not apply the precedent retrospectively, the doctrine was applied in the case of Golak Nath v State of Punjab where the court overruled the judgment of Sajjan Singh and Shankari Prasad.
Judicial Review in USA
The Constitution of USA is a written constitution, federal democratic feature based on rule of law. The judicial review provides checks and balance over the other organs. The major role of the judiciary is to prevent any abuse of power by the Parliament or the President in USA which can directly violate the Constitution. Although there is no express provision for judicial review but is mentioned under Article III and IV of the Constitution.
The power of judicial review was expressly declared in the landmark judgment of Marbury v Madison which declared the act of the Parliament unconstitutional. William Marbury filled a petition before the SC to compel the commission. The court went to determine whether
1) Whether Supreme Court of USA had the original jurisdiction to issue the writ?
2) Does Supreme Court have the power to review the act of the Congress?
Chief Justice Marshal with his innovative approach held that there is no jurisdiction to issue the writ of Mandamus, further the Congress cannot go beyond its own boundary to make laws and act arbitrary. Supreme Court has full power to determine the validity of any law made by the Parliament. Similarly in another case of McCulloch v Maryland there was a dispute whether the Federal law or the State law which would prevail? The state law imposed the tax on the Federal bank through its own legislation. It was held by the court that State cannot impose tax on Central Bank through state legislation. The doctrine of Immunity of Instrumentalities was formulated by the US Supreme Court. The court has the most important role to interpret the provisions of the Constitution and scrutinize the validity of the Constitution.
JUDICIAL REVIEW IN UK
In the case of Dr. Bonham v Cambridge University the doctrine of judicial review was discovered but this doctrine couldn’t come out of the box as in the later judgment of City London v Wood, Chief Justice stated that Parliament cannot do anything against the citizens of the country, although there can be chances of small mistakes but no violation of human rights. This case established the immunity for the Parliament. Doctrine of Parliamentary Sovereignty gave the immunity to the Parliament which could not be questioned by the courts. The two doctrine of Parliamentary Sovereignty and Legislative Supremacy are two facets of immunity.
Although the scope of judicial review have been now relaxed due to the formation of European Convention of Human Rights, the scope become much larger. Even the enactment of Human Rights Act makes it mandatory for the courts to protect the rights of the individuals. UK has no written constitution which makes it even more difficult to keep a check on the powers which have been associated with a specific organ. People are the real source of power, hence the Parliament enjoys immunity and no act of the Parliament can be questioned by the courts.
Even if the parliament passes an unjust law it cannot be challenged before the courts. Hence UK does not have the power of judicial review and the Parliament is dominant. Although when a Parliament frames the legislation it is called as the Primary law and the laws which are delegated by the parliament to the executives with some guidance are termed as the Secondary legislation. These legislation of the executives are majorly administrative in nature and hence it can be subject to the judicial review. Primary legislation which are enacted by the Parliament cannot be reviewed by the Court.
Primary legislation are majorly dealing with the rules, regulations and the directives for the Ministers. Although in cases of rights of the European Union Community situation can be different but due to the Brexit, the interrelationship between UK and the European Union cannot be predicted. The formation of European Union have although increased the scope of review but now the ray of hope is very feeble. In case of Secondary Legislation the courts can review everything from executive to administrative function and also declare them ultra vires to the Constitution. The scope of judicial review is least in comparison to India and USA and the Parliament enjoys sovereignty.
Judicial review in farm laws and its co-relation with USA AND UK
The scope of judicial review is much wider in India as compared to UK and USA and the US Constitution have not specifically mentioned about judicial review but used a confusing terminologies for the same. The scope of judicial review in UK is very limited as it does not have a written Constitution but the Constitution of USA is mostly rigid due to the provisions but on the other hand the Constitution of India is rigid and flexible both hence the interference of the Judiciary in the matters of the Parliament is more as compared to the other countries. The Supreme Courts of USA and UK would not have the authority to pass the interim order.
Most importantly the aspect of pre and post constitutional laws under Article 13 is not mentioned under any other constitution and further such power extends not only to the constitutional amendments but also to legislative acts and administrative acts too. The US Constitution being a rigid constitutional amendment and can overview only the legislative and administrative acts. In UK no act of the Parliament can be challenged. The concept of judicial review is wider and more dynamic in the countries of USA and India where the courts can not only question the illegal and malafide acts of the executives but also determine whether any administrative acts can be challenged in case of ambiguity. All such ministerial acts can be easily challenged before the courts. But the courts would only look into the matter when there is a violation of fundamental right or the legislature have exceeded its power to make laws.
The decision of Indian Supreme court on the three farm laws would not have been possible by the other courts. In the case of UK, the courts cannot interfere at all with the laws which have been formulated by the parliament on the first place. In case of USA, the courts would have considered the issue only when there was a violation of rights or any major ambiguity in law or even in case the Parliament cannot delegate in certain instances. The power which the India court used can be done in the pretext of doing complete justice but the use of such powers have to be justified by the court which the court did not. The two grounds one relating to the fundamentality of the act and other related to the illegality of the act both were never dealt by the court in the first place. The order was a clear case of judicial overreach.
The power of judicial review is one of the most important asset given to the courts. But such power cannot curtail the Rule of law and violate the structure of separation of power. The Supreme Court’s decision of intervening in such negotiations is not a great pathway, it would have been wiser for the SC to hear the pleas that challenge the constitutionality of the laws and examine all the provisions of these laws to ascertain their constitutionality. The Supreme Court (SC) decision can set up a wrong precedent on the following grounds:
- Supreme Court is a constitutional court which interprets law, involving in the farm issue Supreme Court decided to perform an executive function which is outside the domain of it power. Further the decision of setting up a four-member committee and putting a stay on the bill even without hearing the petition is again a question of debate.
- The court decided to intervene not when there was a violation of human rights or miscarriage of justice rather the initiative was taken to control the nation-wide protest of the farmers which is again a duty of the executive branch.
- Setting up a committee to mediate the matter, the other sides where never heard by the court, there was no amicable selection of the mediator rather it was enforced upon by the Supreme Court. This Suo moto initiative in a democratic country raises eyebrows on the powers which can be exercised by the Indian Judiciary.
 Debayan Roy, Supreme Court stays implementation of three Farm Laws, forms 4-member committee to hold talks, Bar and Bench (Jan. 12, 2021), https://www.barandbench.com/news/litigation/supreme-court-stays-implementation-of-farm-laws
 Krishnadas Rajagopal, Supreme Court stays implementation of 3 controversial farm laws, The Hindu (Jan 12, 2021)https://www.thehindu.com/news/national/sc-suspends-implementation-of-three-farm-laws/article33557081.ece
 Sargam Jain, Judicial Review: A Comparative Analysis of India, USA & UK, IJLMH, Volume 1, Issue 2, https://www.ijlmh.com/wp-content/uploads/2019/03/Judicial-Review-A-Comparative-Analysis-of-India-USA-UK.pdf
 (1955) 2 SCR 589 (India).
 MP SINGH, V.N. SHUKLA’S CONSTITUTION OF INDIA 999 (11th ed.) 2008.
 (1877) 3 ILR 63 (Cal).
 (1950) SC 27 (India).
 AIR 1967 S.C. 1643 (India).
(1965) 1 S.C.R. 933 (India).
 AIR 1951 S.C. 455 (India).
 Marbury vs. Madison,5 U.S. 137, 12 (1803)
 McCulloch v. Maryland, 4 Wheaton 316, 32 (1819).
 Dr. Bonham vs. Cambridge University, 638 Eng. Rep. 638, 646, (1610).
 Nishtha Jaswal & Lakhwinder Singh, Judicial Activism in India, Bharati Law Review (Mar. 2017)
Author: Disha Mazumdar from HNLU, Raipur.