The importance and significance of Fundamental Rights

The provided question gives us an opportunity to discuss the intervention of judiciary or scope of judicial intervention in policy matters. This is the question on which this essay revolves. It is also imperative to know that dealing with the provided question requires a clear understanding of separation of powers amongst the three organs, i.e. the legislature, the judiciary and the executive. It is important in that context to know as to how the judiciary gets the authority to strike down matters of policy as unconstitutional. Plenary powers of the supreme court also becomes important in that regard which provides the supreme court the authority to grant a special leave to any matter enshrined in Art 136 of the Indian Constitution.

What is important is to have a clear understanding of the provisions of Art 13 of the Indian constitution, which gives wide powers to the court to invalidate any pre-constitution law that goes contrary to the fundamental rights and also prohibits the incumbent government to make any law that infringes upon the fundamental rights of the citizens; it being void ab initio. The function of judicial review as a ‘basic feature’ of the constitution makes it clear that the constitution views the judiciary protector of fundamental rights and also as a guardian which ensures the protection of the fundamental rights of the citizens

Judicial review refers mainly to the powers of the court to expound the provisions of the constitution and consequently test every law made by the legislature against such principles to find any anomalies. Thus any administrative action or law that may be inconsistent with the constitutional provision may be struck down as being contrary to the fundamentals of the constitution. The basis of this action is that a system having its foundation in a written constitution cannot be effective unless there exists an independent and impartial arbiter of constitutional issues necessary to restrain the state organs from taking actions inconsistent with the constitution. [1] The courts thus act as the final interpreter and guardian of the supremacy of the constitution; keeping all authorities within the confines of their constitutionally mandated powers.

However, this wasn’t always true for the Indian judiciary’s approach towards the question before; the judiciary as a whole had only a duty to declare and not make law, i.e. maintaining the already propounded law and not pronouncing any new law. However, with a change in outlook, the traditionalist approach came under the scanner again and was discarded. This was consistent with views of notaries such as Lord Denning, Lord Diplock and Lord Devlin, all saying that the role of common law is to evolve in accordance with the changing needs of the society. [2] This gave rise to two schools of thought, the liberal and the literal approach to interpretation of a written constitution. It is pertinent to note though, that the approach of the judiciary towards the constitution has been rather liberal since it is the fundamental law of the land from which the others emanate and must consistent with.

There are specific provisions giving plenary powers to the (higher) judiciary under Articles 13, 32, 143, 226 and 246 to review any law or administrative action deemed to be inconsistent with part III of the constitution. The apex court in the State of MadrasARPITA2010-11-18T18:22:00

There is some inconsistency with respect to this footnoting. Please check. [3] case categorically stated that ‘although the court attaches great weight to legislative judgment, it cannot desert its own duty to determine the constitutionality of an impugned statute’. This is in very clear terms the acceptance of the principle of judicial review by the apex court. The constitution has endowed the judiciary with the responsibility of ensuring that the legislature and the executive don’t go astray in the enjoyment of its own immense powers. Especially for this purpose, the language of the constitution, ‘directions or orders or writs in the nature of", bestows a measure of legislative exercise and the power to evolve rules in the absence of any statutory provision. [4] 

Moreover, to ensure that such powers of the courts and the corresponding guarantees [5] to the citizens are not flayed by the legislature, they were placed in Part III of the constitution, i.e. as a fundamental right, thus placing it on a higher pedestal. A difference ought to be made out here between the provisions of the Indian Constitution and the American Constitution. Under the latter, it was never intended that the judicial interpretation given to the constitution be binding upon the law of the land and neither the legislature nor the executive, both of which have a distinct right to interpret the constitution independently. In the words of Justice Marshal himself, the architect of judicial review in America, judicial interpretation would only have ‘such force as logic and persuasiveness might give it’. [6] 

Every judgment of the Supreme Court of India has binding authority and is to be treated as a law of the land on the same pedestal as a statute passed by the legislature. Vide Articles 142 and 144, every authority has to act in aid of the orders of the apex court and such orders or decrees are enforceable throughout the national boundaries. This is evidence enough to suggest that the framers of the constitution intended to handover such powers to the judiciary as to ensure the endurance and execution of the supreme law, i.e. the Indian constitution. Subsequent to this, in the matter of L. Chandra Kumar v. Union of India, [7] judicial review was held to be part of the basic structure of the constitution, thus further running down the powers of the legislature to abridge it.

One of the major criticisms of judicial review has been that the legislature can at a later stage pass a law that nullifies the effect of the judgment. It has also happened in the past, the most widely reported instance being the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This was done specifically to nullify the judgment of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano. [8] 

But such incidents may not occur everytime as it has been laid down by the court that ‘it is not open to the legislature under the scheme of the constitution to set-aside the decision of court’. [9] It’s been adjudged that before the legislature can validate an unconstitutional statute, it must remove the cause of ineffectiveness or illegality. [10] It is not adequate just to declare the decision of the court to be non-binding; amounting to reversing the judgment, a power which the legislature does not possess. [11] 

The Division of powers crisis

There has been severe criticism of judicial review that it destroys the division of powers between the judiciary, legislature and the executive. The ground for this argument is in the fact that each of the organs have been allotted separate fields of operation and infringing into each others’ area of operation isn’t what is permitted under the scheme of the constitution; judiciary’s role is only to enforce law and not make it.

The supporters of judicial review make a very valid point when they state that the only curb on the powers of the three organs is the constitutional mandate given to them and since the judiciary is vested with the powers of interpreting and safeguarding this document, it has utmost authority to curb any piece of legislation that it may feel goes against the tenets of the constitutional guarantees. It is further contested that the scheme of division of powers is very fluid in case of the Indian constitution. As Ruma Pal, J. puts it, there seems to be a certain parallelism of powers between the three organs and not a hierarchy of any sorts. Yet at the same time each action of the legislature and the executive has to pass the litmus test of being constitutionally valid. [12] 

However, there have been times when the Supreme Court has given up its supremacy in favour of this division principle and refused to involve itself with ‘matter of policy’ which the ‘legislature is best equipped to handle’. The most apt example of this was in ADM Jabalpur v. Shivkant Shukla [13] where the CJI went on record and categorically stated that ‘liberty is itself the gift of the law and may by the law be forfeited or abridged’. There has been similar approach of the Supreme Court in Narmada Bachao Andolan v. Union of India [14] wherein again the court has reiterated its earlier stand and adjudged that ‘it is now well settled that the Courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision’.

Special Leave Petition

Art 136 which deals with the authority of the apex court to grant a leave to any appeal from any judgment, decree, determination, or order passed or made by any court or tribunal within the Indian Territory; this right to appeal by special leave does not encompass within itself any right to appeal from the Armed Forces Tribunal. Another important aspect to note is that it contains a non-obstante clause, i.e. the powers under this provision are not affected by any other article within that respective chapter. Hence the powers are in nature, residuary. [15] 

This is not a right to the petitioner or appellant, it is completely within the power of the court to wither accept the appeal or reject it outright. The court itself has given caution to this provision and advised to be used only in the most extraordinary of the cases where the needs of justice demand interference. [16] Thus the early approach of the courts was to use it only in rare circumstances and in determination of substantial legal and constitutional questions. [17] 

Nevertheless, all of this changed and the discretion granted to the courts came to be used increasingly for redressing individual injustices. If it was apparent that a matter had not received the due attention and consideration and if the conscience of the court was offended by such injustice, it became a case fit for special leave. [18] Moreover, the appeal can be heard from ‘any’ court within India, i.e. the leave can be granted even from an order passed by the subordinate judiciary. [19] An extremely important observation to be made here pertains to the nature of order from which the leave is sought. The order or decree or direction need not be a ‘final’ order of the subordinate court. An appeal can also be granted from an ‘interim verdict’ as well; no bar upon such leave. Having said this, the court doesn’t in the usual course of its functioning grant a leave from an interim order; most cases are reverted back to the respective High Courts and from there an appeal might be heard. [20] 

The entire process to file for a special leave involves a two pronged process; granting the appeal and subsequently hearing it. In case the appeal is dismissed at the first stage, then in the opinion of the court it is not a matter pertinent enough to invoke the special leave provision. The dismissal of a leave petition doesn’t in any manner lay down a binding precedent for any court under Art 141. Hence, if the petitioner is granted a leave certificate by the high court, then through the normal course of appeal, he/she can approach the Supreme Court in a fresh appeal. However, in the practical working of the courts, if the appeal from the High Court contains the same subject matter as the special leave petition, then it is evident that again it is going to be summarily dismissed. It might be given a proper hearing; the earlier dismissal would definitely have some persuasive value for the bench hearing the fresh appeal.

In the question provided to us, it can be concluded that the NGO, Greenaries, has every right to move the High Court ARPITA2010-11-18T19:16:00

Read the question again. You are suppose to suggest the state and not the opposite party. on behalf of the aggrieved persons, therefore the petition itself is unassailable. There are many risks going for SLP. In the event that it is dismissed; such a scenario would have a high persuasive value for either the full bench of the High Court hearing the appeal or any other separate bench of the Supreme Court itself. This would not lead to good results for the interest of the State of West Bengal.

On the other hand, the other option is of going by the decision of the division bench of the High Court on grounds of competence might not be the best way forward. As has been discussed above, it is settled beyond any doubt that the judiciary has the power of judicial review. Any statute or administrative action that is deemed to be violative of the constitutional scheme is struck down as invalid. Many attempts to curb this particular privilege of the judiciary have been in vain. [21] The judiciary has a constitutionally awarded mandate to take such an action. Moreover, in environmental matters, as presently, specific remedies under the PTD as well as Article 21 exist. Consequently, the risk in trying to prove that the court acted outside of its jurisdiction is much more than the alternative route available.

Even though there exists the possibility that the leave petition might be rejected. Yet even in such state of affairs, the government still has the normal course of appeal through a High Court certificate. In the other alternative, there exists an almost certain possibility that the contention will be rejected summarily


You have majorly exceeded the word limit. You need to cut down on the words. Strike off the PIL section completely. That will help you.