The scope ofย the judicial review in examining the legislative functions of theย Legislature.
Issue of permissibility of legislative override
A bench of three learned Judges of thisย Court in the case ofย Asif Hameed and others v.ย State of Jammu and Kashmir and othersโ1989 Supp (2) SCC 364 : [1989] 3 SCR 19; observed thus:
โ17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. legislature and executive, the two facets of peopleโs will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.
18–ย Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case ofย Tropย v.ย Dullesย [356 US 86] observed as under:
โAll power is, in Madisonโs phrase, โof an encroaching natureโ. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint….
Rigorous observance of the differenceย between limits of power and wise exercise of power โ betweenย questions of authority and questions of prudence โ requires the mostย alert appreciation of this decisive but subtle relationship of twoย concepts that too easily coalesce. No less does it requireย a disciplined will to adhere to the difference. It isย not easy to stand aloof and allow want of wisdomย to prevail to disregard oneโs own strongly held viewย of what is wise in the conduct of affairs. Butย it is not the business of this Court to pronounceย policy. It must observe a fastidious regard for limitations onย its own power, and this precludes the courtโs givingย effect to its own notions of what is wise orย politic. That self-restraint is of the essence in theย observance of the judicial oath, for the Constitution has notย authorized the judges to sit in judgment on the wisdomย of what Congress and the executive branch do.โ
Legislative functions
19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an Appellate Authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.โ
68. It could thus be seen that the role ofย the judiciary is to ensure that the aforesaid two organsย of the State i.e. the Legislature and the Executiveย function within the constitutional limits. Judicial review is a powerfulย weapon to restrain unconstitutional exercise of power by the legislatureย and executive. The role of this Court is limited toย examine as to whether the Legislature or the Executive hasย acted within the powers and functions assigned under the Constitution.ย However, while doing so, the court must remain within itsย self-imposed limits.
69. Recently, this Court in the caseย ofย Binoy Viswam v. Union of India and others,ย tookย survey of the relevant judgments on the issue and observedย thus:
โ78. With this, we advert to the discussion on the grounds of judicial review that are available to adjudge the validity of a piece of legislation passed by the legislature. We have already mentioned that a particular law or a provision contained in a statute can be invalidated on two grounds, namely : (i) it is not within the competence of the legislature which passed the law, and/or (ii) it is in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other right/provision of the Constitution. These contours of the judicial review are spelled out in the clear terms in Rakesh Kohli [State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481] , and particularly in the following paragraphs : (SCC pp. 321-22 & 325-27, paras 16-17, 26-28 & 30)
โ16. The statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. The court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. Sans flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature is not declared bad.
17. This Court has repeatedly stated that legislative enactment can be struck down by court only on two grounds, namely (i) that the appropriate legislature does not have the competence to make the law, and (ii) that it does not (sic) take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. In McDowell and Co. [State of A.P. v. McDowell & Co., (1996) 3 SCC 709] while dealing with the challenge to an enactment based on Article 14, this Court stated in para 43 of the Report as follows : (SCC pp. 737-38)
โ43. โฆ A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz. (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. โฆ if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by sub-clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom.โ
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26.ย Inย Mohd. Hanif Quareshiย [Mohd. Hanif Quareshiย v.ย State of Bihar,ย AIRย 1958 SC 731] , the Constitution Bench further observed that thereย was always a presumption in favour of constitutionality of anย enactment and the burden is upon him, who attacks it, to show that there has been a clear violation ofย the constitutional principles. It is stated in para 15 of theย Report as under : (AIR pp. 740-41)
โ15. โฆ The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.โ
27. The above legal position has been reiterated by a Constitution Bench of this Court in Mahant Moti Das v. S.P. Sahi [Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942] .
28. In Hamdard Dawakhana v. Union of India [Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : 1960 Cri LJ 735] , inter alia, while referring to the earlier two decisions, namely, Bengal Immunity Co. Ltd. [Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661] and Mahant Moti Das [Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942] , it was observed in para 8 of the Report as follows : (Hamdard Dawakhana case [Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : 1960 Cri LJ 735] , AIR p. 559)
โ8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedyโฆ.โ
In Hamdard Dawakhana [Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : 1960 Cri LJ 735] , the Court also followed the statement of law in Mahant Moti Das [Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942] and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India [Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833 : AIR 1951 SC 41 : 1950 SCR 869] and State of Bombay v. F.N. Balsara [State of Bombay v. F.N. Balsara, 1951 SCC 860 : AIR 1951 SC 318 : (1951) 52 Cri LJ 1361] and reiterated the principle that presumption was always in favour of constitutionality of an enactment.
***
30. A well-known principle that in the field of taxation, the legislature enjoys a greater latitude for classification, has been noted by this Court in a long line of cases. Some of these decisions are Steelworth Ltd. v. State of Assam [Steelworth Ltd. v. State of Assam, 1962 Supp (2) SCR 589] , Gopal Narain v. State of U.P. [Gopal Narain v. State of U.P., AIR 1964 SC 370] , Ganga Sugar Corpn. Ltd. v. State of U.P. [Ganga Sugar Corpn. Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980 SCC (Tax) 90] , R.K. Garg v. Union of India [R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] and State of W.B. v. E.I.T.A. India Ltd. [State of W.B. v. E.I.T.A. India Ltd., (2003) 5 SCC 239] โ
(emphasis in original)
79. Again, in Ashoka Kumar Thakur v. Union of India [Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 : 3 SCEC 35] , this Court made the following pertinent observations : (SCC p. 524, para 219)
โ219. A legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review. A legislation could also be challenged as unreasonable if it violates the principles of equality adumbrated in our Constitution or it unreasonably restricts the fundamental rights under Article 19 of the Constitution. A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan v. Union of India [State of Rajasthan v. Union of India, (1977) 3 SCC 592] said : (SCC p. 660, para 149)
โ149. โฆ if a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities.โ
Therefore, the plea of the petitioner that the legislation itself was intended to please a section of the community as part of the vote catching mechanism is not a legally acceptable plea and it is only to be rejected.โ
80. Furthermore, it also needs to be specifically noted that this Court emphasised that apart from the aforesaid two grounds no third ground is available to invalidate any piece of legislation. In this behalf it would be apposite to reproduce the following observations from State of A.P. v. McDowell & Co. [State of A.P. v. McDowell & Co., (1996) 3 SCC 709] , which is a judgment rendered by a three-Judge Bench of this Court : (SCC pp. 737-38, para 43)
โ43. โฆ A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz. (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonablenessโconcepts inspired by the decisions of United States Supreme Court. Even in USA, these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by sub-clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary [ An expression used widely and rather indiscriminately โ an expression of inherently imprecise import. The extensive use of this expression in India reminds one of what Frankfurter, J. said in Hattie Mae Tiller v. Atlantic Coast Line Railroad Co., 87 L Ed 610 : 318 US 54 (1943):โThe phrase begins life as a literary expression; its felicity leads to its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideasโ, said the learned Judge.] or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz. (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality, and (iii) procedural impropriety (see Council of Civil Service Unions v. Minister for the Civil Service [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] which decision has been accepted by this Court as well). The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for the Home Deptt., ex p Brind [R. v. Secy. of State for the Home Deptt., ex p Brind, (1991) 1 AC 696 : (1991) 2 WLR 588 : (1991) 1 All ER 720 (HL)] , AC at pp. 766-67 and 762.) It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled.โ
81. Another aspect in this context, which needs to be emphasised, is that a legislation cannot be declared unconstitutional on the ground that it is โarbitraryโ inasmuch as examining as to whether a particular Act is arbitrary or not implies a value judgment and the courts do not examine the wisdom of legislative choices and, therefore, cannot undertake this exercise. This was so recognised in a recent judgment of this Court Rajbala v. State of Haryana [Rajbala v. State of Haryana, (2016) 2 SCC 445] wherein this Court held as under : (SCC p. 481, paras 64-65)
โ64.ย Fromย the above extract fromย McDowell & Co. caseย [State of A.P.ย v.ย McDowell & Co.,ย (1996) 3 SCC 709] itย is clear that the courts in this country do notย undertake the task of declaring a piece of legislation unconstitutionalย on the ground that the legislation is โarbitraryโ since suchย an exercise implies a value judgment and courts do notย examine the wisdom of legislative choices unless the legislation isย otherwise violative of some specific provision of the Constitution. Toย undertake such an examination would amount to virtually importing theย doctrine of โsubstantive due processโ employed by the American Supremeย Court at an earlier point of time while examining theย constitutionality of Indian legislation. As pointed out in the aboveย extract, even in United States the doctrine is currently ofย doubtful legitimacy. This Court long back inย A.S. Krishnaย v.ย State of Madrasย [A.S. Krishnaย v.ย State ofย Madras, AIR 1957 SC 297 : 1957 Cri LJ 409] declaredย that the doctrine of due process has no application underย the Indian Constitution. As pointed out by Frankfurter, J., arbitrarinessย became a mantra.
DR. JAYA THAKUR v. UNION OF INDIA & ORS.
[2023] 10 S.C.R. 533 : 2023 INSC 616
Held: The challenge to the Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021 as well as to the Fundamental (Amendment) Rules, 2021 is rejected and the writ petitions are dismissed to that extent.
Asif Hameed and others v. State of Jammu and Kashmir and others 1989 Supp (2) SCC 364 : [1989] 3 SCR 19; Cauvery Water Disputes Tribunal, Re 1993 Supp (1) SCC 96 : [1991] 2 Suppl. SCR 497; S.R. Bhagwat and others v. State of Mysore (1995) 6 SCC 16 : [1995] 3 Suppl. SCR 545; Medical Council of India v. State of Kerala and Others, (2019) 13 SCC 185; Madras Bar Association v. Union of India and another (2022) 12 SCC 455 and Binoy Viswam v. Union of India and others (2017) 7 SCC 59 : [2017] 7 SCR 1 โ relied on.
Common Cause (A Registered Society) v. Union of India & Ors. 2021 SCC OnLine SC 687; Vineet Narain and others v. Union of India and another (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595; Prakash Singh and others v. Union of India and others (Prakash Singh-1) (2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473; Prakash Singh and others v. Union of India (Prakash Singh-2) (2019) 4 SCC 14; Prakash Singh and others v. Union of India and others (Prakash Singh-3) (2019) 4 SCC 1; Beghar Foundation through its Secretary and another v. Justice K.S. Puttaswamy (Retired) and others (2021) 3 SCC 1; Madras Bar Association v. Union of India and another (2014) 10 SCC 1 : [2014] 10 SCR 1; Rojer Mathew v. South Indian Bank Limited represented by its Chief Manager and others (2020) 6 SCC 1 : [2019] 16 SCR 1; V. Sasitharan & Ors. v. The Government of Tamil Nadu & Ors. 1995 SCC OnLine Mad 592; Shri Prithvi Cotton Mills Ltd. and another v. Broach Borough Municipality and others (1969) 2 SCC 283 : [1970] 1 SCR 388; Bhaktawar Trust and others v. M.D. Narayan and others (2003) 5 SCC 298 : [2003] 1 Suppl. SCR 1; Indian Aluminium Co. and others v. State of Kerala and others (1996) 7 SCC 637 : [1996] 2 SCR 23; Goa Foundation and another v. State of Goa and another (2016) 6 SCC 602 : [2016] 1 SCR 1025; K.S. Puttaswamy (Retired) and another (Aadhar) v. Union of India and another (2019) 1 SCC 1 : [2018] 8 SCR 1; Welfare Association, A.R.P., Maharashtra and another v. Ranjit P. Gohil and others (2003) 9 SCC 358 : [2003] 2 SCR 139; Anoop Baranwal v. Union of India 2023 SCC OnLine SC 216 and Madan Mohan Pathak and another v. Union of India and others (1978) 2 SCC 50 : [1978] 3 SCR 334 โ referred to.
