Module VIII-Rule of Law and PostIndependent Judicial Development
Rule of Law, Judicial Review and
Activism in India
Rule of Law
The first proponents of the doctrine of the rule of law are believed to be
Greek philosophers including Aristotle, Plato, and Cicero.
 Plato in his book ‘Complete Works of Plato’ is found to have written that
the “collapse of the state is not far from where the law is made subjective
to the authorities but in the states where the law is considered as supreme
all the blessings of the god falls on such state and it flourishes through all
times.”
 Magna Carta (1215) It did not contain any direct reference to the rule of
law, it included the seeds of two important dimensions of the rule of law,
the primacy and the effectiveness of the law.
 English Bill of Rights: The Bill of Rights established the Parliament as the
main source of rights which should then be protected by the courts.
 In 1885, Professor A.V Dicey further developed this concept of ‘Rule of
Law’ by propounding three principles or postulates of the rule of law in his
book ‘An Introduction to Study of the Law of the Constitution’.

Rule of Law
1.
Supremacy of law: No person can be said to be above the law, even the
functions and actions of the executive organ of the state shall be within
the ambit of the law.

According to Dicey the absolute supremacy of the law, as opposed to the
arbitrary power of the government, is what constitutes the rule of law.
2. Equality before the law: Every man irrespective of his rank or position is
subject to the ordinary law and jurisdiction of the ordinary court and not to
any special court.
3. The predominance of Legal Spirit: He believed that the courts are the
enforcer of the rule of law and hence it should be free from impartiality and
external influence. The independence of the judiciary is therefore an
important pillar for the existence of rule of law.
Rule of Law

Three important values which emanate from the Rule of Law include;
1.
No arbitrary government
2.
Upholding individual liberty and
3.
Checks and balances or judicial review of the
administrative actions
Rule of Law in Ancient India
❖ Ancient system was based on Dharma and the rule of dharma is a wider connotation of
what we understand by the rule of law.
❖ That the King himself was subject to the law. The king’s right to govern was subject to the
fulfillment of duties.
❖ In the Mahabharata, it was laid down "A King who after having sworn that he shall protect
his subjects fails to protect them should be executed like a mad dog."
❖ "The people should execute a king who does not protect them but deprives them of their
property and assets. Such a king is not a king but misfortune.”
❖ Coming to the historical times of the Mauryan Empire, Kautilya describes the duties of a
king in the Arth-shastra thus: "In the happiness of his subjects lies the King’s happiness; in
their welfare his welfare; whatever pleases him he shall not consider as good, but whether
pleases his people he shall consider to good.”
❖ The fundamental duty of the Court was to do justice "without favor or fear".
Rule of Law in Medieval India
* The ideal of justice under Islam was one of the highest in the Middle ages. The
Prophet himself set the standards. He said in the Quran, “Justice is the balance of
God upon the earth in which things, when weighed, are not by a particle less or
more.”
* This high tradition reached its zenith under the first four Caliphs. The first Qadi was
appointed by the Caliph Umar who enunciated the principle that the law was
supreme and that the judge must never be subservient to the ruler. [It is reported
of him that he had once a personal lawsuit against a Jewish subject, and both of
them appeared before the Qadi who, on seeing the Caliph, rose in his seat out
of deference. "Umar considered this to be such an unpardonable weakness on
his part that he dismissed him from office.]
* It is reported by Badaoni that during the reign of Sultan Muhammad Tughlaq the
Qadi dismissed a libel suit filed by the Kind himself against Shaikhzada Jami, but
no harm was done to him.
Rule of Law in the Constitution of India
* The Preamble to the Constitution upholds the high ideals of
Justice, equality, liberty and fraternity.
* Article 13: The fundamental rights protected under Part III
impose restrictions on the law-making power of the legislature.
* Article 14-28
* Articles 32 and 226
History of Judicial Review

The concept of Judicial Review was recognised for the first time by Lord
Coke in Dr. Thomas Bonham v. College of Physicians (1610), he asserted
the supremacy of the common law in England he made the decision that
any law passed by parliament can be reviewed and declared void by the
courts if that is against the common law.

The concept thereafter has truly come into force when it was expounded
in Marbury v. Madison by Marshall C.J., where he asserted, “it is
emphatically the province and duty of the judicial department to say
what the law is.” The power of the courts to invalidate a law made by the
Legislature in case it conflicts with the mandate of the Constitution
emanates from the other part of the juristic nature of the Constitution,
namely, that it is the ‘supreme law of the land.
Judicial Review-Meaning

According to Legal Dictionary “court's authority to examine an executive
or legislative act and to invalidate that act if it is contrary to constitutional
principles”.

It is a concept of Rule of Law and Supremacy of law is the essence of
Judicial Review.

It is the power to scrutinise the validity of a law made by the legislature or
the action of the executive.

Judicial Review is the check and balance mechanism to maintain the
separation of powers & functions.

In India Judicial Review based on three important dimensions, these are”
Judicial Review of Constitutional Amendments”, Judicial Review of
Legislative Actions and “Judicial Review of Administrative Actions”.
Why judicial Review?

It is to ensure that the authority does not abuse its power and that the individual receives
just and fair treatment.

To determine the constitutionality of legislative Acts.

It adjusts the constitution to the new conditions and needs of the time.

To uphold the supremacy of constitutional law.

To protect the fundamental rights of the citizens.

To maintain federal equilibrium between the Centre and the States.

Also to maintain equilibrium between the Legislative and administrative powers of the
Centre and the State.
Shankari Prasad v. Union of India (1951)

The question of whether fundamental rights can be amended under Art. 368 came for
consideration of the Supreme Court in Shankari Prasad v. Union of India (1951).

It was the first case on the validity of the Constitution (1st
curtailing the “Right to Property” was challenged.

Article 31A: Saving of laws providing for acquisition of estates, etc.-(1) Notwithstanding
anything in the foregoing provisions of this Part, no law providing for the acquisition by
the State of any estate or of any rights therein or for the extinguishment or modification of
any such rights shall be deemed to be void on the ground that it is inconsistent with, or
takes away or abridges any of the rights conferred by, any provisions of this Part:

Provided that where such law is a law made by the Legislature of a State, the provisions
of this article shall not apply thereto unless such law, having been reserved for the
consideration of the President, has received his assent.
Amendment) Act, 1951,
Shankari Prasad v. Union of India (1951)

Article 31B. Validation of certain Acts and Regulations.-Without prejudice to the generality
of the provisions contained in article 31A, none of the Acts and Regulations specified in the
Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to
have become void, on the ground that such Act, Regulation or provision is inconsistent
with, or takes away or abridges any of the rights conferred by, any provisions of this Part,
and notwithstanding any judgment, decree or order of any court or tribunal to the
contrary, each of the said Acts and Regulations shall, subject to the power of any
competent Legislature to repeal or amend it, continue in force.“

The argument against the validity of (1st Amendment) was that Art. 13 prohibits
enactment of a law infringing an abrogating the fundamental rights, that the word ‘law’ in
Art 13 would include” any law”, then a law amending the constitution and therefore, the
validity of such a law could be judged and scrutinized with reference to the fundamental
rights which it could not infringe.
Shankari Prasad v. Union of India (1951)

Issue: Whether the Constitution (First Amendment) Act, 1951, which was recently passed by
the present provisional Parliament and purports to insert, inter alia, articles 31A and 3lB in
the Constitution Of India is ultra vires and unconstitutional.
Judgement

There existed a conflict between Article 13 and Article 368 of the Indian constitution. On
one hand Article 368 gave legislature the power to amend the constitution at the same
time Article 13 (2) restricted the same.

Applying the doctrine of harmonious construction it was concluded that the word 'law' in
Article 13 (2) is for ordinary laws and not constitutional laws. Thereby limiting the extent of
'law' under Article 13 (2).

This also meant that the parliament had exclusive power under Article 368 to amend the
constitution including the fundamental rights under part III of the constitution.

The apex court validated Article 31 A&B and also upheld the validity of the agrarian land
reforms.the
Sajjan Singh v. Rajasthan(1965)

The Constitution (17th Amendment) Act 1964 was challenged.

Amendment of article 31A.-In article 31A of the Constitution,-(i) in clause (1), after the
existing proviso, the following proviso shall be inserted, namely:-

Provided further that where any law makes any provision for the acquisition by the State
of any estate and where any land comprised therein is held by a person under his
personal cultivation, it shall not be lawful for the State to acquire any portion of such land
as is within the ceiling limit applicable to him under any law for the time being in force or
any building or structure standing thereon or appurtenant thereto, unless the law relating
to the acquisition of such land, building or structure, provides for payment of
compensation at a rate which shall not be less than the market value thereof.

Inserted another 44 acts to the 9th schedule.
Sajjan Singh v. Rajasthan(1965)
Issues

Whether a modification to a fundamental right within Article 368 qualify as
"law" as per Article 13 (2)?

Can a fundamental right in part III of the Constitution be amended by
Parliament in any way within Article 368?

Does an adjustment to a fundamental right within article 368 limit the High
Courts’ authority under article 226?
Sajjan Singh v. Rajasthan(1965)

Article 368(1): “Notwithstanding anything in this Constitution, Parliament
may in the exercise of its constituent power amend by way of addition,
variation or repeal any provision of this Constitution in accordance with
the procedure laid down in this article.“

Article 13(2): The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the contravention, be
void.

The court reiterated the judgement in Shankari Prasad.
Golak Nath vs. State of Punjab(1967)

Golak Nath vs. State of Punjab(1967),
amendment was raised.
the same question regarding constitutional

In this case the inclusion of the Punjab Security of Land Tenures Act, 1953 in the Ninth
schedule was challenged on the ground that the Seventeenth Amendment by which it
was so included as well as the First and the Fourth Amendments abridged the
fundamental rights were unconstitutional.
Issues

Whether in the exercise of the power of amendment the fundamental structure of the
Constitution may be changed or even destroyed or whether the power is restricted to
making modification within the framework of the original instrument for its better
effectuation?

Whether the amendment of fundamental rights is covered by the proviso to Art. 368?
Golak Nath vs. State of Punjab(1967)

To what extent can Part III be amended?

Whether the impugned Act could be sustained under the provisions of the Constitution without
the aid of Arts. 31A and 31B of the Schedule?

The Supreme Court overruled the decision of Shankari Prasad and Sajjan singh’s case.

Chief Justice Koka Subba Rao had first invoked the doctrine of prospective overruling.

The Supreme Court observed that “The term ‘law’ within the meaning of Art. 13(2) included
every kind of law, “statutory as well as constitutional law” and hence a constitutional
amendment which contravened Art. 13(2) will be declared void.

Post this judgement the Parliament passed the 24th Amendment act, 1971 and added Article
13(4) and Article 368 (3).
Keshavananda Bharti vs. State of Kerala(1973)

Keshavananda Bharti vs. State of Kerala(1973) which is also known as the
“Fundamental Rights Case”.

In this case, the petitioner had challenged the validity of the Kerala Land
Reforms Act 1963. But during the pendency of the petition, the Kerala Act
was amended in 1971 and was placed in the Ninth Schedule by the
Twenty-Ninth Amendment Act.

The petitioner challenged the validity of the Twenty Fourth, Twenty-Fifth,
and Twenty Ninth Amendments to the Constitution and also the question
involved was as to what extent of the amending power conferred by Art.
368 of the Constitution?.
Keshavananda Bharti vs. State of Kerala(1973)

The 24th Amendment) inserted A. 13(4) and 368(3) to the constitution.

25th Amendment inserted;

Article 31(2)(a):-"(2) No property shall be compulsorily acquired or requisitioned save for a
public purpose and save by authority of a law which provides for acquisition or
requisitioning of the property for an amount which may be fixed by such law or which
may be determined in accordance with such principles and given in such manner as
may be specified in such law;

and no such law shall be called in question in any court on the ground that the amount
so fixed or determined is not adequate or that the whole or any part of such amount is to
be given otherwise than in cash;

Provided that in making any law providing for the compulsory acquisition of any property
of an educational institution established and administered by a minority, referred to in
clause (1) of article 30, the State shall ensure that the amount fixed by or determined
under such law for the acquisition of such property is such as would not restrict or
abrogate the right guaranteed under that clause.";

(b) after clause (2A), the following clause shall be inserted, namely:-"(2B) Nothing in subclause (f) of clause (1) of article 19 shall affect any such law as is referred to in clause
(2).".
Keshavananda Bharti vs. State of Kerala(1973)

Article 31C: Saving of laws giving effect to certain directive principles.Notwithstanding anything contained in article 13, no law giving effect to
the policy of the State towards securing the principles specified in clause
(b) or clause (c) of article 39 shall be deemed to be void on the ground
that it is inconsistent with, or takes away or abridges any of the rights
conferred by article 14, article 19 or article 31;

and no law containing a declaration that it is for giving effect to such
policy shall be called in question in any court on the ground that it does
not give effect to such policy:

Provided that where such law is made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having
been reserved for the consideration of the President, has received his
assent.".
Keshavananda Bharti vs. State of Kerala(1973)

The 29 th Amendment act placed The Kerala Land Reforms (Amendment) Act, 1969
(Kerala Act 35 of 1969) and The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act
25 of 1971 to the 9th schedule.

S M Sikiri, CJI, the fundamental rights guaranteed under Part III of the Constitution of India
cannot be abrogated, however in the interest of the public a reasonable abridgment of
those rights could be effected.

He also said, the expression ‘amendment of this Constitution,’ in Article 368, means any
addition or change in any of the provisions of the Constitution within the broad contours
of the preamble, made in order to carry out the basic objectives of the Constitution.

The Supreme Court held that” Under Art. 368 Parliament can amend the fundamental
rights but cannot take or abridge the Basic Structure of the Constitution”.

The Supreme Court upheld the Land Reform Acts and the Amendment Acts that had
been challenged. The only provision that was struck down was that portion of the
Constitution (25th Amendment) Act, which denied the possibility of judicial review.
Keshavananda Bharti vs. State of Kerala(1973)

According to Justice H.R. Khanna, democracy is a basic feature of the
Constitution and includes free and fair elections- Justice K.K Mathew agreed to it

Justice K.K. Mathew held that the power of judicial review is an essential feature.

Justice Y.V. Chandrachud listed four basic features sovereign democratic republic
status, equality of status and opportunity of an individual, secularism and freedom
of conscience and religion and the rule of law.

Chief Justice A.N. Ray said the principle of separation of powers forms the basic
structure

Justice Beg-supremacy of the Constitution and separation of powers
Basic Structure
1.
Supremacy of the Constitution.
2.
Rule of law.
3.
1.
The 'essence' of other Fundamental Rights in
Part III.
The principle of Separation of Powers.
2.
The concept of social and economic justice-to
build a welfare State; Part IV in toto.
4.
The objectives specified in the Preamble
to the Constitution.
3.
The balance between Fundamental Rights and
Directive Principles.
5.
Judicial review; Arts.32 and 226.
4.
The Parliamentary system of government.
6.
Federalism.
5.
The principle of free and fair elections.
7.
Secularism.
6.
Limitations upon the amending power conferred
by Art.368.
8.
The sovereign, democratic, republican
structure.
7.
Independence of the Judiciary.
8.
Effective access to justice.
9.
Freedom and dignity of the individual.
9.
Powers of the Supreme Court under Arts.32, 136,
141, 142.
10.
Unity and integrity of the Nation.
10.
11.
The principle of equality, not every
feature of equality, but the essence of
equal justice.
Legislation seeking to nullify the awards made
in exercise of the
11.
judicial power of the State by Arbitration
Tribunals constituted under an Act.
Basic Structure
Judgement
Basic Structure
Indira Gandhi Vs Raj Narain
Democracy, Free and fair elections, rule of
law and equality
Minerva Mills v. Union of India
Judicial review of Parliamentary
enactments, and the limitation of
Parliamentary power to amend the
Constitution
S.P. Sampath Kumar v. Union of India
Judicial review
S.R. Bommai v. Union of India
Secularism and federalism
I.R. Coelho v. State of Tamil Nadu
Freedoms under Article 19
Supreme Court Advocates-on-Record
Association and Another v. Union of India
Judicial independence
Indira Nehru Gandhi vs. Raj Narayan(AIR 1975 SC 865)

In , Indira Nehru Gandhi vs. Raj Narayan(AIR 1975 SC 865): Indira Gandhi’s
election was held as void on grounds of electoral malpractice by
Allahabad HC. After obtaining a stay on the order from SC, Gandhi
government introduced an amendment to the Constitution. The
Constitution (39th Amendment Act )removed the authority of the Supreme
Court to adjudicate petitions regarding elections of the President, Vice
President, Prime Minister and Speaker of the Lok Sabha. Instead, a body
constituted by Parliament would be vested with the power to resolve such
election disputes.

Amendments were also made to the Representation of Peoples Acts of
1951 and 1974 and placed in the Ninth Schedule along with the Election
Laws Amendment Act, of 1975.

Khanna .J. struck down the clause on the ground that “it violated the free
and fair elections which was an essential postulate of democracy which in
turn was a basic structure of the constitution”
Minerva Mills vs. Union of India(1980)

In Minerva Mills vs. Union of India(1980), the petition was filed in the Supreme Court challenging
the taking over of the management of the mill under the Silk Textile Undertaking (Nationalisation)
Act, 1974, and an order made under S. 18-A of the Industrial (Development and Regulation) Act,
1951.

The petition challenged the constitutional validity of clauses (4) and (5) of Art. 368 were introduced
by Sec.55 of the Constitution (42nd Amendment) Act 1976.

Amendment of article 368.- In article 368 of the Constitution, after clause (3), the following clauses
shall be inserted, namely:-“

A 368 (4): No amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article whether before or after the commencement of
section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in
any court on any ground.

A 368(5): For the removal of doubts, it is hereby declared that there shall be no limitation whatever
on the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.".
Minerva Mills vs. Union of India(1975),
Issues

Whether insertion made to Article 31C and Article 368 through sections 4 and 55 of the 42nd Amendment Act,
1976 hamper the basic structure doctrine?

Whether the Directive Principle of the State policy has primacy over the Fundamental right to the Indian
Constitution?
Judgement

Chief Justice Y.V. Chandrachud, delivering the majority judgement (4:1) held section 4 & 55 of the 42nd
Amendment Act to be unconstitutional as they imposed a grave threat on the basic structure (Judicial Review)
of the Indian Constitution.

By the exclusion of judicial review the amending power of Parliament would stand enlarged contrary to the
decision of this Court in Kesavananda Bharati’s case. This would, undoubtedly, damage the basic structure of
the Constitution because there are two essential features of the basic structure which would be violated,
namely, the limited amending power of the Parliament and the power of judicial review with a view to
examining whether any authority under the Constitution has exceeded the limits of its powers.

The goals set out by the Directive Principles must be achieved without abrogating the means provided by the
Fundamental Rights. The majority held the amendment to Article 31C unconstitutional as it destroyed the
harmony and balance between fundamental rights and directive principles, an essential or basic feature of the
Constitution.
I.R. Coelho (dead) by L.Rs. Vs. State of Tamil Nadu &
Others (2007)

The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the
Janmam Act) vested certain land including forest land in the Janmam Estate in the State
of Tamil Nadu. The Act was struck down in Balmadies Plantations Ltd. Vs. State of
Tamilnadu, [(1972) 2 SCC 133] because the acquisition of forest land was not found to be
a measure of agrarian reforms under Art.31 (A) of the Constitution. Similarly, Section 2 (c)
of the West Bengal Land Holding Revenue Act, 1979 was struck down as arbitrary and
unconstitutional.

The 34th amendment and 66th amendment to the Constitution inserted these two acts
in 9th Schedule in its entirety. These insertions were challenged before five judges Bench
on the ground that portions, which were struck down could not be validly inserted in 9th
Schedule.

The constitution Bench referred the matter to a 9 judge bench.
I.R. Coelho (dead) by L.Rs. Vs. State of Tamil Nadu & Others (2007)
Issue

The fundamental question is whether on and after 24th April 1973 when basic structure
doctrine was propounded, it is permissible for the parliament under Art.31-B to immunise
legislations from fundamental rights by inserting them to the 9th Schedule, and if so, what
is the effect of the power of judicial review of the Court.
Judgement

The Supreme Court held that if the validity of any 9th Schedule law has already been
upheld by this Court, it would not be open to challenge such law again on the principles
declared by this judgment.

However, if a law is held to be violative of any rights in Part III is subsequently
incorporated in the Ninth Schedule after 24th April, 1973, such a violation/ infraction shall
be open to challenge on the ground that it destroys or damages the basic structure as
indicated in Article 21 read with Article 14, Article 19 and the principles underlying
thereunder.

Maneka Gandhi Judgement –Laws to be just, fair and reasonable
II. Judicial Review of Legislative Actions
Ordinary Laws (Centre/State)

Art. 245 and 246 of the Indian constitution give legislative powers to
Parliament and State Legislatures.

Art. 245 (1) provides “subject to the provisions of the constitution, the
parliament may make any laws for the whole and any part of the territory
of India and a State Legislature may make a law for the whole of the state
and any part thereof”.

The word “subject to the provisions of the constitution” imposes limitations
on the Parliament and State Legislature to make legislation. These words
are the essence of the Judicial Review of legislative actions in India.

Article 246: Subject matter of laws made by Parliament and by the
Legislatures of States
II. Judicial Review of Parliamentary and State
Legislative Actions
A.K Gopalan Vs State of Madras (AIR 1950 SC 27)

Section 14 of the Preventive Detention Act

Right to movement and personal liberty is curtailed.

Articles 13, 19, 21 and 22 involved.

Judiciary’s power to review the legislation

Reference to Procedure established by law and Due process
of Law
Judicial Review of Parliamentary and State
Legislative Actions

In, S. P. Sampat Kumar vs. Union of India(1986) the constitutional validity of
the Section 28 of the Administrative Tribunal Act,1985, was challenged on
the ground that the impugned Act by excluding the jurisdiction of the High
Court under Art. 226 and 227 in service matters had destroyed the judicial
review, an essential feature of the constitution.

Constitution (42nd Amendment) Act, 1976, inserted Articles 323-A and 323B to the Constitution, which authorized Parliament to provide by law for
the adjudication or trial by administrative tribunals of disputes and
complaints with respect to recruitment and conditions of service of
persons appointed to public services.

A. 323 A (2)(d) and A. 323 B (3) (d) of that Article envisaged exclusion of
the jurisdiction of all courts, except the jurisdiction of the Supreme Court
under Art. 136 with respect to the disputes or complaints referred to in cl.
S. P. Sampat Kumar vs. Union of India(1986)

The Supreme Court held that though the Act has excluded the judicial
review exercised by the High Courts in service matters, but it has not
excluded it wholly as the jurisdiction of the Supreme Court under Art. 32
and 136.

Further held that” a law passed under Art. 323-A providing for the
exclusion of the jurisdiction of the High Courts must provide an effective
alternative institutional mechanism of authority of judicial review. The
judicial review which is an essential features of the constitution can be
taken away from the particular area only if an alternative effective
institutional mechanism or authority is provided, an essential feature of
the constitution.”

L. Chandra Kumar Vs UoI (1997)
Shreya Singhal v. Union of India, (2013)

Shreya Singhal v. Union of India, (2013) 12 S.C.C. 73: Police arrested two women for posting
allegedly offensive and objectionable comments on Facebook about the correctness of
shutting down the city of Mumbai after the death of a political leader.

Section 66A. Punishment for sending offensive messages through communication service,
etc.--Any person who sends, by means of a computer resource or a communication
device,

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill
will, persistently by making use of such computer resource or a communication device;

(c) any electronic mail or electronic mail message for the purpose of causing annoyance
or inconvenience or to deceive or to mislead the addressee or recipient about the origin
of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with
fine.
Shreya Singhal v. Union of India, (2013)

Explanation.--For the purposes of this section, terms "electronic mail" and
"electronic mail message" means a message or information created or
transmitted or received on a computer, computer system, computer
resource or communication device including attachments in text, image,
audio, video and any other electronic record, which may be transmitted
with the message.]

Whether Section 66A of ITA violated the right to freedom of expression
guaranteed under Article 19(1)(a) of the Constitution of India.

The Court further held that the law fails to establish a clear proximate
relation to the protection of public order. According to the Court, the
commission of an offense under Section 66A is complete by sending a
message for the purpose of causing annoyance or insult. As a result, the law
does not make distinction between mass dissemination and dissemination
to only one person without requiring the message to have a clear tendency
of disrupting public order.
Judicial Review of Parliamentary and State Legislative Actions

Supreme Court Advocates on Record Association and Anr vs Union Of
India on 16 October, 2015 (NJAC Judgement)- In a landmark judgment,
the Supreme Court struck down the 99thConstitutional Amendment for
being ultra vires the basic structure of the Constitution.

In this group of petitions, validity of the Constitution (Ninety-Ninth
Amendment) Act, 2014 and the National Judicial Appointment
Commission Act, 2014 (hereinafter referred to as `the Act’) has been
challenged.
The 99th Amendment was intended to replace the “collegium” system with
National Judicial Appointment Commission. (CJI, 2 Senior most Judges,
Law Minister and 2 Eminent Jurists to be nominated by CJI, PM and Leader
of opposition in Lok Sabha).
4:1 Majority held the act as unconstitutional. Justice Chelameshwar gave
a dissenting opinion.


III. Judicial Review of Administrative Actions
The grounds for review of administrative actions are;
1.
Lack of Jurisdiction, excessive Jurisdiction or abuse of Jurisdiction
2.
Improper purpose
3.
Failure to exercise discretion or excess or abuse of discretion
4.
Excessive Delegation
5.
Non-conformity with the parent statute or any other plenary law
6.
Manifestly arbitrary and unreasonable
7.
Substantive ultra vires and procedural ultra vires.
8.
Unconstitutionality, Irrationality, Improper procedure
Ajai Hasia vs. Khalid Mujib(1981)

In, Ajai Hasia vs. Khalid Mujib(1981) admissions to Regional Engineering College, J& K was
challenged by the petitioner on the ground that it was violative of Article 14.

The admission process of the college was challenged as it was arbitrary in nature. The
management allocated more weightage to oral viva than the written test and
accordingly, seats were allotted.

The petitioner who scored high marks in the written test was denied admission.

Petitioner approached SC under article 32.
Issues

Whether the Regional Engineering College is a state as defined in Article 12?

Whether the Selection Procedure was violative of Article 14 of the Constitution?
Ajai Hasia vs. Khalid Mujib(1981)

By referring to R.D Shetty vs. International Airport Authority, Bhagawati J held that society
was an agency of Government as the government had deep control over its functioning
as its composition was determined by the representatives of the government. The
Memorandum of Association of Society and the Rules Act of the Society clearly indicates
that the college was owned, controlled and managed by the Government and hence a
State under Article 12 of the Constitution under “Other authorities.”

It was also held that the allocation of 1/3 percentage of total marks for oral interviews is
arbitrary.

However, the court declined to quash the admission procedure in view of the lapse of 18
months when the students have completed almost 3 semesters.
Air India vs. Nargesh Meerza(1981)

Air India vs. Nargesh Meerza(1981) in this case Regulations 46 and 47 of the
Air India Employees Service Regulations was challenged on the ground
that it created gender discrimination at work place.

The impugned rule provided for the termination of service of an air hostess
on marriage or pregnancy or upon attaining the age of 35 years which
ever is earlier. Whereas the retirement age for males were 58 years.

Many petitions were filed before the Bombay HC questioning the validity of
regulations 46 and 47 of Air India Employee’s Service Regulations, stating it
to be ultra vires of Articles 14,15,16 and 21 of the Indian Constitution.

The Supreme Court transferred all the petitions from the Bombay HC to itself
for a joint hearing under Article 139A.
Air India vs. Nargesh Meerza(1981)

Whether Regulation 46 & 47 are violative of Articles 14,15, 16 of the
Constitution of India and thus ultra vires in whole or part?

Whether discretionary powers as enumerated under Regulation 47 can be
deemed as being excessive delegation?

The court held the clauses regarding retirement and pregnancy as
unconstitutional and thus ordered for them to be struck down.

Directed the authorities to amend the regulation to be in line with Article
14.
Judicial Activism
* Judges like V R Krishna Iyer, P N Bhagwati, Chinnappa Reddy, and D A Desai
supported judicial activism and issued numerous decisions addressing people’s
fundamental rights.
* Judicial activism is guided by the following two theories:
i.
Theory of vacuum filling: According to this theory inactivity, laziness,
incompetence, indifference, indiscipline, lack of integrity, corruption, greed
and disrespect of law by the legislature and/or the executive create a power
vacuum.
ii.
Theory of Social Want: This theory affirms that when the current legislation fails to
address the problems of society and cannot provide alleviation, the judiciary
has to undertake the task of societal transformation to administer justice to the
aggrieved. “Thus, where legislature weakens, the judiciary corrects.
Judicial Activism And Shift From Locus
Standi To Public Interest Litigation
* Access to justice is a fundamental aspect of rule of law.
* The individuals fail to reach justice system due to various reasons including
lack of basic necessities, illiteracy, poverty, discrimination, privacy, poor
infrastructure of the justice system, etc.
* Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai and others [1976 (3)
SCC 832].
* Hussainara Khatoon vs. State of Bihar (1979)
* Sunil Batra Vs Delhi Administration (1979)-Letter from a prisoner converted
into a habeas corpus proceeding
Judicial Activism And Shift From Locus
Standi To Public Interest Litigation
* A new era of the PIL movement was heralded by Justice P.N. Bhagawati in
the case of S.P. Gupta vs. Union of India. In this case it was held that any
member of the public or social action group acting bonafide can invoke
the Writ Jurisdiction of the High Courts (under article 226) or the Supreme
Court (under Article 32) seeking redressal against violation of legal or
constitutional rights of persons who due to social or economic or any other
disability cannot approach the Court.
Judicial Activism and shift from locus standi to
Public Interest Litigation
* Access to justice is a fundamental aspect of rule of law.
* The individuals fail to reach justice system due to various
reasons including lack of basic necessities, illiteracy,
poverty, discrimination, privacy, poor infrastructure of
the justice system, etc.
* Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai
and others [1976 (3) SCC 832].
* Hussainara Khatoon vs. State of Bihar (1979)
Judicial Activism and shift from locus standi
to Public Interest Litigation
* A new era of the PIL movement was heralded by Justice P.N.
Bhagawati in the case of S.P. Gupta vs. Union of India. In this case it
was held that any member of the public or social action group
acting bonafide can invoke the Writ Jurisdiction of the High Courts
(under article 226) or the Supreme Court (under Article 32) seeking
redressal against violation of legal or constitutional rights of persons
who due to social or economic or any other disability cannot
approach the Court.
Judicial Activism –Important Judgements
1.
Vishakha Vs. State of Rajasthan- (1997)6
SCC 241
1.
Mohani Jain Vs. State of Karnataka-(1992) 3 SCC
666
2.
Kesavananda Bharati Vs. State of Kerala(1973)4 SCC 225
2.
PUCL Vs UoI (Starvation Death Case)
3.
Indira Gandhi Nehru Vs. Raj Narain -1975
Supp SCC 1
3.
Common Cause Vs. UoI-(2018) 5 SCC 1
4.
Shayara Bano Vs. UoI (2017) 9 SCC 1
4.
ADM Jabalpur Vs. Shivakant Shukla (Habeas
Corpus Case)- (1976)2 SCC 521
5.
Navtej Singh Johar Vs. UoI-(2018) 10 SCC 1
6.
Indian Young Lawyers Association Vs. State of
Kerala-2018 SCC Online SC 1690
7.
Joseph Shine Vs. UoI- (2019) 3 SCC 39
8.
Safe Abortion for all women including victims of
Marital Rape (SC judgement September 2022)
5.
Maneka Gandhi Vs. UoI-(1978) 1 SCC 248
6.
M.C Mehta Vs. UoI (Shriram Oleum Gas
Leak Case)-(1987) 1 SCC 395
7.
Mohd. Ahmed Khan Vs. Shah Bano Begum(1985) 2 SCC 556
8.
Mary Roy Vs. State of Kerala-(1986) 2 SCC
209
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