Posted on: March 4, 2022 Posted by: admin Comments: 0

Author: Shubham Malviya, Research Scholar at Dr. RML National Law University, Lucknow


Armed with the power of judicial review, the superior courts worldwide have been frequently asked to resolve a range of issues, varying from the scope of freedom of expression and religious liberties, privacy, equality rights, property, trade and commerce, education, immigration, environmental protection and many more.

Constitutional Theory has by and large ignored the role that institutional structures plays in shaping battles over the meaning of the Constitution. The emphasis has been on evolving the correct interpretative theory that will limit the courts discretion. Judicial review should be judged empirically (i.e. by how it works) rather than by normative theories. Once the emphasis shifts from normative arguments to empirical arguments, a number of structural features of judicial review become important.

The policy formulation is the sole prerogative of the legislative and executive departments of the government. The judiciary just keeps a check that whether the legislative enactments and the executive actions are in consonance with the provisions of the constitution or other statutory laws. This reveals that neither the parliament (legislature) and cabinet (executive) nor the court can claim independently to be truly sovereign. The parliamentary form of government in India is thus a compromise of powers between different organs of the government. Indian constitutional system adopts the via media between the American system of judicial supremacy and the English system of parliamentary supremacy.

The Indian constitution does not envisage a rigid separation of powers. The respective powers of the three wings, viz. legislature, executive, and judiciary is well-defined with the object that each wing must function within the area prescribed by the constitution. The Supreme Court took all this into account in the judgement delivered in the case of State of Kerala v. A Lakshmi Kutty, stating that, “special responsibility devolves upon the judges to avoid an over activist approach and to ensure that they do not trespass within the spheres earmarked for the other two branches of the state”.

The Supreme Court is well aware of its limitations, and hence exercises self-restraint and caution over encroachment of the field exclusively reserved for the other two branches, i.e. the legislature and the executive. The Supreme Court in the case of P. Ramachandra Rao v. State of Karnataka, held that “The primary function of the judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation. But they cannot entrench upon in the field of legislation properly meant for the legislature. It is not difficult to perceive the dividing line between permissible legislation by judicial directives and enacting law – the field exclusively reserved for the legislature”.

In the majority of cases, the judiciary has called upon the executive to perform its obligations under the constitution and the other statutory laws. While this was and will continue to be desirable, it will be against the scheme and philosophy of the constitution if the judiciary oversteps into the shoes of legislature and the executive. While in cases related to labour policy (e.g. minimum wages, working conditions, etc.) and also in respect of issues related to environmental and ecological matters, judicial behaviour can be perceived to be proactive; judicial intervention in matters related to fiscal policy (political affairs, internal proceedings of the legislature, etc.) can be categorized as judicial overreach.

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