SCOPE OF JUDICIAL REVIEW
(PAPER PRESENTED TO THE THIRD COMMONWEALTH & EMPIRE LAW CONFERENCE HELD IN SYDNEY (AUSTRALIA) FROM 25TH AUGUST TO 1ST SEPTEMBER 1965 BY A.K.BROHI)
What ought to be the scope of the power of `judicial review’, can be returned only after an examination of the concept of `judicial review’ as it has been evolved and applied in the English‑speaking world in the course of the last two hundred years or so. This would admittedly be an exercise in normative jurisprudence. The aim of the exercise would ‘be to ascertain the reasons that have been responsible for the evolution and application of the doctrine of `judicial review’ just to be able to set the limits within which its reach, in principle, ought to be confined.
The doctrine of `judicial review’, to begin with, was invoked primarily to discover the precise nature of the authorisation under which an organ or the agent of sovereign power had been charged to act with a view to determining whether or not, while professing so to act, it had transgressed the limits within which that power was really available to it. Broadly speaking, the doctrine of judicial review has reference to the power of Courts to enforce and apply the doctrine of ultra vires. The question in each case for the judicial power is: “Is the, power exercised by a public functionary, be that provision contained in the Fundamental or the ordinary law, within the scope of the authorisation conferred by a given provision of law? The Courts of law, by means of the exercise of power of judicial review, maintain the supremacy of law (be it fundamental or ordinary) and they achieve this by declining to give any legal effect to those acts and omissions complained of by aggrieved parties, which, in their judgment, are beyond the powers conferred by law.
The origins of the doctrine of judicial review have been traced back to he argument of Sir Edward Coke who, in Dr. Bonham’s case decided in 1610, had observed:
“And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void”
(English Reports: LXVII, p. 638 at 652).
This is an argument based on the necessity to select from conflicting rules of binding value the one which the Court believes to be right and proper to follow in the decision of a controversy presented to it for its adjudication.
It would be recalled that Dr. Bonham, who had been charged for having violated the statute, was adjudged by the Chief Justice of England to be `not guilty’ upon the premises of the reasoning reflected in the quotation cited above, viz., that the law in question was void. The implications of this case have been viewed by Kelly and Harbinson in a somewhat different setting. In their words:
“This case upon casual examination appears to be a seventeenth century application of the doctrine of judicial review. Actually, it may, not be so regarded. The modern American concept of judicial review has to do with the power of a Court to hold an act of a co‑equal legislative body invalid as repugnant to the Constitution. In Coke’s day, however, no clear‑cut idea of Parliament as being strictly a legislative body had yet emerged, nor had the later notion of the separation of powers any hold upon political thought of the time. Coke was thus upholding the validity of one set of Courts, those of the Common Law, as against another, the High Court of Parliament. Notwithstanding this, the case certainly contains the idea that the common law embodies the principles of natural law and natural right, and that it therefore can control the acts of an important agency of the Government.”
The learned authors go on to add:
“Coke became the principal legal authority in colonial America in the eighteenth century, in part because his Institutes and Commentaries on the Common Law were among the very few legal works accessiable to colonial lawyers; in part because many colonists studied law at the Inns of Court in London, where Coke’s ideas were still given wide currency, even though many of them were no longer generally recognized in English practice. Coke’s notion that the common law and Magna Carta reflected natural law and could, therefore, control acts of Parliament thus gained wide acceptance in America, even though the doctrine was generally rejected in England after 1700.” (See “American Constitution‑its Origin and Development” p. 46).
The leading cases in the system of United States jurisprudence that evolved and applied the doctrine of judicial review are Marbury v. Madison (1803) 2 Law. Ed. 60; M’Culloch v. Maryland (1819) 4 Law: Ed. 579 and Adkins v. Children’s Hospital (1923) 261 U. S. 525. The doctrine of judicial review, as enunciated and applied in these cases, is based on the acceptance by the judicial power of the truth of the following propositions:
(1) Constitution is law which is enforceable by Courts ;
(2) It is a law of higher obligation than the ordinary law;
(3) In the event of conflict between Constitution and ordinary law, it is for the Courts in the enjoyment of their interpretative function to resolve the conflict when by means of appropriate proceedings they are called upon to do so;
(4) When such a case is presented, the Court merely enforces the law of the superior obligation and in the process declares the ordinary law unconstitutional on the ground of its being repugnant to the law of higher obligation;
(5) Having regard to the fact that the Constitution of United States is reared on the foundation of the theory of separation of powers, a judicial interpretation of law by the Court, be it organic or ordinary, is final for the decision of the case presented to it for adjudication.
To the law‑applying organs of the State is committed the duty of determining rights of citizens and enforcing liabilities and obligations sanctioned by law. In the absence of the binding constitutional mandate to the contrary, judicial power has no option but to determine whether a non‑sovereign Legislature has competently enacted the law and has done so consistently with the. terms of its own authorisation that can be spelt out from the relevant constitutional provision under which it was charged with the duty of legislating..
In the context of American constitutional history, the power of judicial review had a great deal to do with the desire of the Courts to uphold the supremacy of the Constitution, and Justice Holmes made this very point when he remarked:
“I do not think United States would come to an end if we (that is the Judges of the United States Supreme Court) lost our power to declare acts of Congress void. I do think, however, that the Union would be imperilled if we could not make that declaration as to the laws of the several States.” (See his “Collected Papers” pp. 295=296).
That, then, is the political justification par excellence for the exercise of power of judicial review a power which is not expressly granted by the American Constitution to the Courts but is something indulged in by them and acquiesced in by the people of the United States.
The American Courts, however, have extended the doctrine of judicial review beyond the frontiers suggested by a mere desire that the several States, the Congress, the President, and the Court itself‑each of them keeps itself within its own allotted sphere and does not over‑step the powers conferred upon it by the Charter that created it. In the language of Justice Learned Hand, over and above the exercise of this power, the Court virtually acts as a `communal monitor’, a third legislative chamber, in that, in effect and in substance, it feels itself free to legislate under the Fifth, the Fourteenth Amendments and the “Commerce Clause” etc., upon controversial subjects. The Court, in these matters, sets out to determine not merely the limits of power within which the organs and agents set up by the `people’ are called upon to function, but also proceeds to control the just exercise of those powers under the aegis of “due process” clause. Speaking in 1942 on the 250th anniversary of the Supreme Judicial Court at Boston, he observed in defence of the former function:
“The Constitution is primarily an instrument to distribute political power, and so far it is, it is bard to escape the necessity of some tribunal with authority to declare when the prescribed distribution has been disturbed. Otherwise those who hold the powers will be likely, in the end, to dominate and absorb everything else except as astute executives may, from time to time, check them by capturing and holding popular favour . . . . . . I do not mean that the Court should approach constitutional questions as they approach statutes, and they have never done so when they knew their business; constitutions can only map out the outline roughly‑, inevitably leaving much to be filled in. The scope of the interstate commerce power of the Congress is an ever‑present instance. It is impossible to avoid all such occasions but it was a daring expedient to meet them with Judges, deliberately put beyond the reach of popular pressure. And yet granted the necessity of some authority, probably independent Judges were the most likely to do the job well.”
It is to independent judiciary then that the high, responsible and august task of interpreting the Constitution must necessarily be assigned, if the Constitution at all is to work. Having shown the necessary function of the Courts in America as the arbiter of the distribution of power of Government, Justice Learned Hand turns to that distinctive feature of the American Constitution that makes room for the proclamation of those `stately admonitions’ couched as general principles‑that are designed to ensure just exercise of those powers. Falling in this category arc the due process clause and its like and in discussing them the pitfalls and dangers that beset the way of those who are charged with the duty of applying and enforcing these principles are adequately recognised. In his words:
“Those stately admonitions . . . . are the precipitates of old, unhappy, far‑off things, and battles long ago originally cast as universals to enlarge the scope of the victory, to give it authority, to reassure the very victors themselves that they have been champions in something more momentous than a passing struggle. Thrown large upon the screen of the future as eternal varieties, they are emptied of the vital occasions which gave them birth and become moral abjurations, the more imperious because inscrutable, but with only that content which each generation must put into them anew in the light of its own experience. If an independent judiciary seeks to fill them from its own bosom, in the end it ceases to be independent. And its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and conditions of men, nor will its answers be theirs; it must be content to stand aside from these fateful battles. There are two ways in which the; Judges may forfeit their independence if they do not abstain. If they are intransigent but honest, they will be curbed; but a worse fate will befall them if they learn to trim their sails to the prevailing winds. A society whose Judges have taught it to expect complaisance will exact complaisance; and complaisance under the pretence of interpretation is rottenness. If Judges are to kill this thing they love, let them do it, not like cowards with a kiss, but like brave men with a sword.”
The `due process clause’ contained in the Fifth and the Fourteenth Amendments of the Constitution of United States has been construed by the Courts of that country as requiring that the fundamental rules of judicial procedure should be respected. So viewed it is the concept of `natural law’ and as is its foster child `the principle of natural justice’ which is being introduced as a decisive norm if not a license to the Court in considering regulatory legislation “to roam” as it was said in Adamson v. Coliforntia “at large in the broad expenses of policy and morals, and to trespass, all too freely on the legislative domain of the States as well as the Federal Government (See 332 U. S. 46 (1947)). But the `due process’ thus conceived, according to Frankfurter, J. is not to be had as a resort to the revival of `natural law’ The faculties of the due process clause may be indefinite and vague but the mode of their ascertainment is not self‑willed. In each case `due process of law’ requires an evaluation based on the disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, or the detached consideration of conflicting claims, on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and change in a progressive society. It is these sorts of judicial dicta which make it impossible to depict the reach of due process clause. It has not go, any well defined frontiers and its scope is not capable of being defined it terms of any ascertainable principle.
Before 1868 when the Fourteenth Amendment became a part of the American Constitution, by and large, the due process clause of the Fifth Amendment was interpreted to mean some sort of a clog upon the federal power: it was construed by the Supreme Court as guaranteeing certain procedural safeguards to persons before they could be deprived of their `life, liberty and property’. An examination of the case‑law on this subject would amply demonstrate that the due process clause upto that time, at any rate, was of significance primarily in criminal cases and the substantive conception of the due process clause, although it appears to hay; influenced the minds of some of the Judges of the Court had not, as then, attained any firm recognition it the way it did subsequent to 1876.
Various reasons have been assigned by the constitutional historians of United States to account for the way in which the Supreme Court of Unites; States began steadily to lend its support to the substantive conception of the due process clause. It is important to bear some of the outstanding facts of American constitutional history in mind while the case‑law of that country, is invoked for understanding the principle upon which the progressive interpretation of its Constitution has proceeded. In the back‑ground of these decisions lies the steady mounting impact of 170 years of economic and political forces that have shaped the course of judicial interpretation of these two Amendments. And the considerations that have ultimately prevailed with the Supreme Court are now frankly being acknowledged by the apologists of its decisions, on this count, to be due less to the logic of strict adherence to judicial interpretation of the constitutional document and due more to the pressure of political and economic conditions of the American Social History.
The growth of the conception of substantive due process has been explained by appeal to several factors. And some of these, according to Kelly and Harbinson, are:
“First, the whole spirit of the times was against extensive state regulation of the new economic life in America. American industry seemed to be doing very well indeed for itself without the necessity of any governmental interference. Most of America was profiting in one way or another by the tremendous rise in industrial Wealth and productive power. True, a few industries and a few men associated with them were amassing fortunes beyond the comprehension of the average person, but the great majority of Americans saw no wrong in the acquisition of wealth: they asked only an equal opportunity to use their own imagination, skill, business sense, and good fortune to enrich themselves. Most Americans despised any suggestion of paternalism in government. The modern idea of the service state had not yet arisen . . . . . .
“American industry had always been in politics to some degree. After 1850, however, industry and the rail‑roads went into state politics to an extent hitherto unknown. They put forward their own attorneys as candidates for office ; they donated funds to political parties; they backed this or that faction in the state Legislature. Sometimes less scrupulous industrial leaders resorted to bribery. The eighties and nineties saw a new low in the moral level of the American State Legislature . . . . The judiciary could hardly be expected’ to remain immune to the `big business’ conception of the role of Government in society . . . . . Thus, it is not surprising that the attitude of Supreme Court, as well as that of the Federal and State judiciaries in general, began to reflect the economic and social attitudes of big business. Judges of this background might be expected to interpret the Constitution in the light of the laissez‑faire economic philosophy and to regard the Constitution and the judiciary as bulwarks of property. They did not disappoint these expectations”.
It is this elasticity of approach with which the judicial power in the United States has looked upon its own duty of interpreting the constitution, and the law, which is the point of chief concern with the critics of the power of judicial review of legislation. It is for these reasons that Justice Learned Hand cautions us against the propriety of the power of judicial review furthering its frontiers under the guise of securing `just administrations of public power.
In the Constitutions of India and Pakistan the due process clause of the United States Constitution is not implicated in terms, but the formulation of fundamental rights contained therein, particularly those fundamental rights which are guaranteed by the Constitutions of the two countries, subject to reasonable restrictions, has virtually brought the application of due process clause very much in the focus. The freedom of speech and expression under both of these Constitutions is guaranteed, subject to reasonable restrictions imposed by law, in the interest of the security of the State, friendly relations with the foreign States, public order, decency and morality or in relation to contempt of Court, defamation or incitement to an offence. Similarly, a citizen’s right to assemble peacefully and without arms is guaranteed, subject to reasonable restrictions imposed by law, in the interest of public order; and the right to form associations or unions is also guaranteed, subject to reasonable restrictions imposed by law in the interest of morality or public order. Similarly, a citizen’s right to move freely throughout the country, and to reside and settle in. any part thereof, is guaranteed subject to any reasonable restrictions imposed by law in the public interest. So also freedom to acquire land and dispose of property is available (a) subject to the right of the State to acquire property for public purpose, provided the law relating to such acquisition makes provision for adequate compensation, and (b) subject to any reasonable restrictions imposed by law in public interest: Similarly, citizen’s have the qualified right to enter upon any lawful profession or occupation. These qualifications have reference to the power of the State to regulate trade or business by a licensing system and the carrying on by the Federal or a Provincial Government or by a corporation controlled by any such government of any trade, business, industry or service, to the exclusion, complete or partial, of other persons. Similarly the right to profess, practise and propagate any religion is guaranteed subject to law, public order, morality etc. etc.
The foregoing enumeration of qualified rights and liberties is in the nature of an attempt to balance the interest of individual liberty, on the one hand, and the necessity of imposing some manner of regulatory control, in the interest of society, on the other. What is guaranteed is this: not freedom in the abstract but what may in the felicitous phrase of Justice Cordozo be called `ordered’ liberty.
In actual working, the Constitutions of India and Pakistan, in relation to these qualified liberties, then, exhibit in substance and in effect the guarantee of the due process clause contained in the Fifth and the Fourteenth Amendments of the United States Constitution as interpreted by the Supreme Court. In the case of Ram Singh v. State of Delhi A I R 1951 S C 270 at p. 276 Bose, J. in a minute of dissent, while commenting on the grammar of Indian Article 19 which deals with these qualified rights, observes:
“In every phase, it is the rights that are fundamental, not the limitations; and it is the duty of this Court and of all Courts in the land to guard and defend these rights, jealously. It is our duty and privilege to see that rights which were intended to be fundamental are kept fundamental and to see that neither Parliament nor the Executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms, and in the case of the Executive, to see further that it does not travel beyond the powers conferred by Parliament. We are here to preserve intact for the people of India the freedoms which they have learned through the years to cherish, to the very fullest extent of the guarantee, and to ensure that they are not whittled away or brought to nought either by Parliamentary legislation or by executive action.”
In the system of English jurisprudence there are no rights and liberties guaranteed by express word of the Constitution if only because the English Constitution is an unwritten one. But this is no draw‑back; it is a cardinal principle of the law of English Constitution that the subject may say or do what he pleases, he may move anywhere he likes and form association and act in concert with his fellow men, provided he does not transgress the substantive law or do acts which invade the legal rights of others. Similarly, the authorities charged with the duty of maintaining public order or performing any governmental duty cannot do anything to the prejudice of these individual rights unless they can show that they were authorised to do that act by some rule of common law or by some provision made by a statute (See Entick v. Carrington).