Judicial Review of Orders by President and Governor - Part I | Important Acts and Laws for Judiciary Exams PDF Download

What is Judicial Review?

• Judicial Review refers to the authority of the courts to review the actions of the legislative, executive, and administrative branches of the government.
• It involves assessing whether these actions are in accordance with the Constitution.
• If actions are found to be unconstitutional, they are deemed null and void.

Origin of Constitutional Judicial Review

• Constitutional Judicial Review is commonly traced back to the case of Marbury v. Madison (1803) in the United States.
• In this case, Chief Justice John Marshall asserted the Supreme Court's authority to invalidate unconstitutional legislation passed by Congress.

Role of Judiciary in Providing Guidelines

• The Constitution of India grants discretionary powers to Governors.
• At times, Governors may not exercise these powers judiciously.
• When Governors' actions are questioned, the judiciary steps in to provide essential guidelines.
• These guidelines ensure that discretionary powers are used in accordance with the law and the Constitution.

Examples of Judicial Intervention

• For instance, in cases where Governors exceed their authority, the judiciary has intervened to uphold the rule of law.
• By setting precedents and issuing judgments, the judiciary plays a crucial role in maintaining the balance of power among different branches of government.

Constitutional Provisions for Judicial Review of Orders by President and Governor

• Constitution of India grants authority to higher courts and the Supreme Court to review administrative actions and statutes to safeguard public rights and enforce fundamental rights.
• Article 246 and Schedule 7 of the Constitution delineate the division of powers between the State and Centre, especially in cases of conflicts.
• Judicial Review allows the judiciary to invalidate actions that contravene the Constitution, with its foundation in Article 13 of the Indian Constitution.
• Articles 32 and 226 empower the courts to ensure the enforcement of fundamental rights outlined in Part III of the Constitution.
• Protection of fundamental rights is crucial, and the Judiciary must possess the authority to prevent arbitrary violations, making Judicial Review a vital tool in this context.

Review of Governor's Rule

• The Supreme Court emphasized in the case of Nabam Rebia and Bamang Felix v. Deputy Speaker (2016) that the Governor's discretionary power is significantly restricted and is subject to Judicial Review. It was noted that even when exercising discretion, as stated in the Samsher Singh v. State of Punjab (1974) case by a seven-judge Bench, the Governor should act "in harmony with his Council of Ministers." 
• When it comes to appointing Chief Ministers, instances such as in Mahabir Prasad vs Prafulla Chandra (1969) have upheld the Governor's absolute power in this regard. The court has reiterated that the appointment of the Chief Minister falls solely within the Governor's discretion, as seen in Pratap Singh Raojirao vs Governor of Goa (1999), where the Governor enjoys immunity under Article 361 of the Constitution when making such decisions. 
• Regarding the dissolution of assemblies, the court, in cases like S.R. Bommai vs Union of India (1994) and Rameshwar Prasad vs. Union of India (2006), has affirmed that the dissolution of the Assembly can be subject to judicial review. If deemed malafide, the court has the authority to revive the Assembly before new elections are conducted. 
• In instances of the dissolution of ministries, as seen in Jagdambika Pal vs State of U.P. (1998), it was established that the Governor's discretion to dismiss the ministry should only be exercised when the Chief Minister fails to prove majority in the Assembly. The courts have upheld the Governor's right to withdraw pleasure in such cases. 
• The summoning and proroguing of State Assemblies, as per the case of K.A. Mathialagan vs The Governor (1973), are functions that the Governor cannot exercise at his discretion, excluding ministerial advice.
• Pardoning powers, governed by Article 161 of the Constitution, are not absolute and are guided by the advice of the Council of Ministers. The courts have affirmed this in cases like Epuru Sudhakar v. Govt. of A.P. (2006), where it was highlighted that the Governor's pardoning power is not beyond judicial review and must adhere to the principles of the Rule of Law.