Introduction

Judicial review is the power of the court to review or scrutinize the actions of the legislative and the executive and the judicial actions. Judiciary has the power to interpret any law and order made by the legislature and executive and if it is found unconstitutional, then the judiciary can declare any law and order void. The power of the judiciary is to review the constitutional validity of law and an order passed by a legislature and executive known as “judicial review”. High courts and the Supreme Court both have the power of judicial review. Judicial review is part of the basic structure of our constitution. Judicial review is viewed as the power of the court to set up checks and balances between the legislature and executive.

Under the Indian Constitution, parliament is not supreme. We are following the rule of law, which means the constitution is the supreme law. This power is given to the court to examine the actions of the legislature, executive, and administrative arms of government and to ensure the constitutional validity of the law.

Judicial review has two functions;

Legitimate government action.
The protection of the constitution against the intrusion of the government.

History of judicial review

The concept of judicial review was first introduced in the United States Supreme Court. American Supreme Court has the power to review the law passed by Congress and executive orders.

In the case, Marbury v. MadisonPresident Adam belonged to the Federalist Party, which came to an end and President Jefferson came to power. On his last day, Adam appointed the judges of the Federalist Party. Jefferson was against this, so Madison, secretary of state, had not sent the appointment letter to judges. Marbury, one of the judges, filed the writ of mandamus in the Supreme Court. Court refused to entertain the plea and opposed the order of the legislature. Then the Congress and the US Supreme Court developed the concept of judicial review.

In India, judicial review was discussed for the first time in Emperor v. BurahIn this case, the Calcutta high court, as well as the Privy Council, adopted the concept of judicial review in the Indian courts.

Constitutional provisions for judicial review

The power of judicial review is given in the Constitution. The Constitutional provisions guarantee a judicial review. The Articles are:

Article 13(1) – All laws are in force before the commencement of the constitution is void if they abridge the fundamental rights.
Article 13(2) – The state shall not make laws which abridge the rights conferred by this part, and if any law made which contravenes this clause shall be void.
Article 13(3) –The law includes any ordinance, order, bye-law, regulation, and custom in India; force of law and the law in force includes laws passed by the legislature or competent authority in India which is pre-constitution and not repealed, any such law or any party shall not be operated.
Article 13(4)–This article shall not apply to any amendment of the Constitution made under Article 368.
Article 32 and 226 –A person can approach the High Court and Supreme Court to violate fundamental rights.
Article 251 and 254 –Conflict between the union and state laws, the state law shall be void.
Article 245–The legitimacy of legislation can be challenged in the court if the provision of law infringes fundamental rights.
Article 131-136–Court has the power to adjudicate disputes between individuals, individuals and state, state and state, state and union; the court is required to interpret provisions of the Constitution and interpretation given by the Supreme Court becomes the law of the land.
Article 372 (1) –Judicial review of the pre-constitutional legislation.

Grounds for judicial review

Constitutional Amendment

Review of the constitutional amendment done by the authority. All those amendments which are violating fundamental rights are declared void by the Supreme Court.

Administrative Actions

Illegality – The decision-makers have made decisions beyond their power or their acts and decisions are illegal. Their acts and decisions can be illegal if they fail to follow the law.
Irrationality –The authority should act properly. It should not be irrational and unreasonable. The court can raise the question if the decision that has been taken by an authority is unreasonable.
Procedural impropriety – This principle is a matter of procedure decision taken by decision-makers. This case should be decided and heard by people to whom it is delegated and not the other persons. The rules are:

Audi alteram partem.
Nemo judex in causa sua.

Public authorities should act fairly before decision-making. If they act unfairly, it would be an abuse of power.

Judicial pronouncement

Shankar Prasad v. Union of Indian in this case, the zamindars challenged the constitutional validity of the first amendment which is related to land reforms. The ground was a violation of fundamental rights under Article 13(2) of the Constitution. The court held that the amendment made under Article 368 is not a law under Article 13.

Golakh Nath & Ors v. the State of Punjab In this case, the constitutional validity of the 17^th amendment was challenged and it was heard by a special bench of 11 judges. The court held that Parliament under Article 368 has no power to abridge the Fundamental Rights. The court observed that Article 368 states the only procedure to be followed making amendments to the Constitution.

After this case, in article 13 clause 4 was included by the 24^th amendment of 1971 which States that any amendment made under Article 368 is not a law under Article 13. Marginal note 368 has changed which state “power of Parliament and the procedure to amend the constitution”.

Kesavananda Bharati v. the State of Kerala, in this case, the 24th and 25th amendments were challenged. The court held that the legislature can amend the Constitution but cannot amend the basic structure of the constitution. The basic structure of the constitution is the supremacy of law, council, and democratic form of government, secularism, separation of power, and federalism.

Minerva Mills v. Union of India In this case, the court struck down clauses 4 and 5 of article 368 which were inserted by the 42^nd amendment. The court held that these clauses destroyed the basic structure of the Constitution. Judicial review has inserted the basic structure of the Constitution.

Conclusion

Judicial review has covered legislature action, executive action, and judicial decision. India has adopted judicial review from American Constitution. The Supreme Court can not apply for judicial review. It can be used when the question of rule of law is challenged in the High Court or either Supreme Court. The concept of judicial review is the basic structure of the Constitution and it has become part of the basic structure in the case of Minerva Mills v. Union of India. It is used as a check and balance to check the other two organs of government. Judicial review is not an extended power of the judiciary. Excess use of judicial power without checking validity may violate the separation of power.

The article has been written by Prachi Yadav, a 2^nd Year student from Mody University of Science and Technology, Laxmangarh, Rajasthan.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith, Jaipur.

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Equivalent Citation

1964 AIR 1882, 1964 SCR (8) 50

Bench

HIDAYATULLAH, M.

WANCHOO, K.N.

GUPTA, K.C. DAS

AYYANGNAR, N. RAJAGOPALA

Decided on

29 APRIL, 1964

Relevant Act/ Section

S. 69 OF INDIAN PARTNERSHIP ACT, 1932 (9 OF 1932)

S. 8(2) OF ARBITRATION ACT, 1940 (ACT 10 OF 1940)

Petitioner

JAGDISH CHANDRA GUPTA

Respondent

KAJARIA TRADERS (INDIA) LTD.

Facts

On 30 July 1955, the respondent Messrs. Kajaria Traders (India) Ltd. and Messrs. Foreign Import and Export Association (exclusively owned by the appellant Jagdish C. Gupta) entered into a partnership to export between January and June 1956, 10,000 plenty of manganese ore to Phillips Brothers (India) Ltd., New York. Each partner was to provide a particular quantity of manganese ore. The agreement has arbitration clauses. The corporation claimed that Jagdish Chander Gupta did not carry out his part of the partnership agreement. The corporation wrote to Jagdish Chander Gupta on February 28, 1959, that they had appointed an arbitrator and asked Jagdish Chander Gupta either to confirm Mr. Kolah’s appointment as the only arbitrator or to appoint his arbitrator. Jagdish Chander Gupta postpones consideration and on St Patrick’s Day, 1959, the corporate informed Jagdish Chander Gupta that as he had not assigned an arbitrator within 15 days, they were appointing Mr. Kolah as the only arbitrator. Jagdish Chander Gupta discovered this. And on March 28, 1959, the company filed a plea under s. 8 (2) of the Indian Arbitration Act, 1940 for the nomination of Mr. Kolah or any other person as arbitrator. Jagdish Chander Gupta appeared and demurred the petition.

Issues before High Court

Whether S. 8(2) of the Indian Arbitration Act was applicable in this agreement because it was not expressly provided in the Letter of Intent that the arbitrators were to be appointed by consent of the parties?
Whether S. 69(3) of the Indian Partnership Act, 1932 petition can be filed because the partnership was not registered?

Judgment by High Court

Mr. Jagdish Gupta firstly argued that if the appointment is not made within 15 days of notice, on the application of the party who has given the notice, and following the principle of Audi Alteram Partem, the court may appoint an arbitrator. The Bombay High Court bench consists of Justice Mudholkar and Justice Naik, who agreed on the first contention constructed by Mr. Jagdish.

But the division bench contradicts the 2nd point. Justice Mudholkar believed that the application cannot be filed under s. 69(3) of the Indian Partnership Act, 1932, while Justice Naik has a different opinion. Then the case went to Justice KT Desai who agreed with Justice Naik’s view. And the court held that the application was held to be competent.

Contentions before Supreme Court

After the Bombay High Court Judgement, the appeal was filed in which it was contended that the High Court wrongly interpreted the grounds under S. 69(3) of the Indian Partnership Act, 1932.

Judgment by Supreme Court

The Supreme Court held that the words ‘other proceeding’ in S. 69(3) of the partnership act must receive their meaning and must be unaffected by words’ claim of set-off. Therefore, the appeal is allowed to rescind the decision of the Bombay High Court.

Conclusion

The judgment answers the question of whether an unregistered firm can initiate arbitration proceedings negatively. Despite the arbitration clause, the arbitration proceedings were barred in this case. Hence, to function like a well-oiled machine, the firm must get registered.

The case analysis has been done by Megha Patel, a 2^nd year Law Student at the Mody University of Science and Technology, Laxmangarh, Rajasthan.

The case analysis has been edited by Shubham Yadav, a 4th-year student at Banasthali Vidpyapith, Jaipur.

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Citation

(2003) 6 SCC 265

Decided On

9^th May 2003

Case Number

Civil Appeal No. 13337 of 1995

Bench

Bench: Shivraj V. Patil & K.G. Balakrishnan J.J.

Relevant Section

Section 32(2), 32(3) & 72 of Indian Partnership Act, 1932

Facts

The plaintiff filed two suits against the respondent. Respondent number 1 in both the suits is a partnership firm engaged in engineering works. Respondent numbers 2 to 4 are its partners. The first suit was filed to recover the amount of Rs. 59, 775.95/- with interest. The plaintiff alleged that a loan of Rs. 40,000/- was sanctioned in favor of the respondent on 5^th December 1974, for expansion of industry of the respondent. The loan was to be repaid after 9 months in installments. The respondent had also executed the requisite documents in favor of the plaintiff bank. Respondent number 2 & 3 in their written statement admitted that the respondent had borrowed Rs. 40,000/- from the appellant. The two respondents subsequently retired without giving any notice of this development to the appellant bank. The respondent defaulted on the payment of the loan. Trial Court held that respondents number 2 & 3 would not be liable for the suit claim & High Court upheld the decision of the Trial Court.

Another suit filed by the appellant against the respondents in Karnataka High Court alleged that the respondents were given an overdraft facility by the appellant bank; the respondent availed the facility & committed default in paying the same. Respondents raised similar contention as in the previous suit that the partnership was dissolved & respondent number 4 took entire liability. The contention was accepted by the Trial Court against respondents number 1 & 3 was passed. The plea was rejected by the High Court in which the appellant prayed that Decree shall be passed against all the respondents as all have joint & several liabilities. Hence, the plaintiff moved an appeal to the Hon’ble Supreme Court for the same.

Issue before the Court

Whether the retiring partner would be liable to pay for the liability incurred during partnership?

Whether respondents giving notice to the appellant bank regarding dissolution of the firm would absolve the retiring partner from dues?

Judgment

The appellant contended that all the respondents should be held jointly liable as they executed various documents to the said & had admitted its execution, the dissolution of the partnership firm will not affect their liability to discharge of the suit claim & inter se arrangements between the partners of the firm will not be binding on the appellant bank & as per clause 3 of Section 32 of the Act respondent number 2 & 3 cannot escape from the liability concerning the suit claim made by the appellant. In response, the respondent said as a prior notice was sent to the appellant bank about the dissolution of the firm & they did not raise any objection therefore, respondents numbers 2 & 3 are not liable for any under the suit as per clause 2 of Section 32 of the Act.

Hon’ble Supreme Court held that the appellant had every right to proceed against all the defendants present in the suit, Court also said that no public notice was given about the retirement of respondents number 2 & 3 from the partnership firm as envisaged under Section 32(3) of the Act. Court pointed out at one of the contentions made that the “dissolution of firm will not affect the respondents from liability retiring partners” by the appellant. Like the fact the appellant was aware of the dissolution of the partnership firm, as per section 32(2) of the Act, the liability of the retiring partner as against a third party would be discharged only if there was an agreement made by the retiring partners, the bank being the third party in this case & partners of the reconstituted firm, this was absent from the case expressly or impliedly.

Conclusion

Perhaps it is self-evident from the case that the creditor’s right normally will not be prejudiced by an agreement transferring an acquired liability from one partner to another in a partnership firm unless the creditor is made a party to the agreement. Otherwise, the agreement (regarding him) will be strictly res inter alias acta (transacted between other parties).

The case analysis has been done by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.

The case analysis has been edited by Shubham Yadav, from Banasthali Vidyapith, Jaipur.

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Case Number

Criminal Appeal No. 300 of 1975

Equivalent Citation

1975 AIR SC 2473, 1975 SCC 2 829.

Bench

V.R Krishna Iyer, A.C Gupta, JJ.

Decided on

October 10, 1975

Relevant Act/ Section

The Immoral Traffic (Prevention) Act, 1956

Brief Facts and Procedural History

The location is the Isias Bar, which is located at 15, Free School Street in Calcutta. A midnight invitation to have a good time with sylphs is extended by a hall of enchantment. The entrance price is a pittance of Rs 15 per person, and there is energizing booze served inside. To the exhilarating tune of band music, scantily clad female flesh of sweet seventeen or thereabouts fly about. The stage is busy with many men and women moving from one room to other. Many bars or restaurants provide a suitable platform for the operation of brothels. Similarly in this case, when the men indulge in promiscuous sex, police and excise officers entered the scene. When the Act entered into effect, a prosecution was brought against numerous people under Section 7, and two people, the proprietor, and manager of the Isias Bar were found guilty and sentenced.

Procedural History

An appeal to the High Court was largely unsuccessful, while the State’s appeal was somewhat successful. The conviction was amended to some extent by the High Court, and the Supreme Court had to continue on the assumption that the accused had been found guilty of offenses under Sections 7(2)(a) and 3(1) but acquitted under Section 7(2)(b). The more pertinent element of the present appeal was that an order was made under Section 18(1) when read with Section 18(2) directed the occupiers of the portion of Premises Nos. 15 and 15.A, Isias Bar or the Free School Street to be evicted therefrom within a period of seven days from the date of that order and restore possession thereof to the owner landlord. The Supreme Court had given special leave to challenge this eviction order under Section 18(2), read with Section 18(1). (1).

Issues before the Court

The scope of the concerned arguments was limited to the right to evict the tenant of the guilty premises after conviction for Sections 3(1) and 7(2)(b) offenses, in addition to the term imposed.

Ratio of the Case

In Sub-Divisional Magistrate v. Ram Kali, AIR 1968 SC 1, this Court ruled that Section 18(1) applies to one class while Section 18(2) applies to another. Section 18(1) is a one-time method for shutting down obnoxious prostitution establishments without having to go through the lengthy process of criminal prosecution.

It’s a quick-reacting defense mechanism designed to put out the flames and promote immediate moral sanitation in locations like shrines, schools, hostels, and hospitals, all of which are socially vulnerable. Section 18(2), on the other hand, only applies to anyone who has been convicted of crimes under Sections 3 or 7. Thus the place is found to be engaged in prostitution trial. It follows to reason that if the goal of removing the business vice from that location is to be accomplished, the occupier must be ejected. In this scenario, this is exactly what has been done. Section 18(2) applies to all locations where prostitution activity has taken place, not only those within 200 yards of the offending distance.

Decision of the Court

The Supreme Court dismissed the appeal, affirming the Magistrate’s power to order eviction when a conviction under Section 3 or Section 7 occurs, confident that public power vested in a public functionary for the public good will be exercised whenever the conditions for doing so exist, achieving a broad social goal of moral clean-up of public places.

This case analysis is done by Vanshika Samir.

The editor of this post is Shreya Litoria.

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This article is written by Vishrut Gupta, a law student from Lloyd Law College. The article aims to explain to the readers about the Mercy Petition which acts as a lifeguard provision for a guilty person.

Introduction

According to the Cambridge dictionary, ‘mercy’ literally means- the act of forgiving someone more specifically when you have some authority. But, as the word enters the periphery of the legal world, it carries a different meaning altogether. When the punishment of a convict is remitted, it is done through a ‘mercy petition’. A mercy petition is an application filed by an accused or a convicted person to the president of the supreme authority requesting to remit/ reduce the death sentence. It is done usually in the case where a miscarriage of justice or suspicious conviction is done. This concept of mercy petition is followed in many countries such as India, the US, UK, Canada, etc. Different countries have distinct authorities to cater this mercy petition as per the provisions of their constitution but mostly it is addressed to the president of a country. In the US and India, mercy petitions are subject to the discretion of the president. If the whole sentence is canceled, it is known as ‘pardon’ and if it is remitted partly after or before sentence, it is known as ‘clemency’ or ‘mercy’.

Legal Provisions

Article 21 of the constitution of India ensures that no person will be deprived of his right to life. Mercy petition following article 21 and article 14, which talks about the right to equality, clearly has some essence of the human sentiments and protects the basic human rights of every prisoner where the convictions are suspicious. Article 72 of the Constitution says that the President shall have the power to grant pardons and reprieves of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Similar power is given to the governors under Article 161 of the Constitution. The duration taken by the executive for disposal of mercy petition depends on the nature of the case and the gravity of the crime. It also depends upon the number of mercy petitions submitted to the court. The court, therefore, cannot set a time limit for disposal of even for mercy petitions. But, recently the Home Ministry has brought some essential changes in the laws on the mercy petition.

When Can a Mercy Petition be Filed?

Mercy petition is the penultimate step for a prisoner. A convicted person cannot directly file a mercy petition. There are several other provisions to provide justice and if they don’t work, the person opts for the last option i.e. the mercy petition. The procedure and the steps involved before filing a mercy petition are:

A punishment is usually given by a trial court and if there is a suspicion in the conviction or miscarriage of justice is observed, an appeal can directly be filed in the High Court seeking justice.
If High Court does not entertain and dismisses the plea, the convicted person can file a review petition directly in the Supreme Court to seek remission in the sentence. If he faces another rejection, a curative petition helps.
Curative petition was first introduced in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002). It works on the Latin maxim- “actus curiae neminem gravity” meaning that the court shall not be prejudice in its actions. The main objective is to prevent the abuse of power in due process and eliminating the miscarriage of justice. It is supported by Article 137 mentioned in the constitution of India.
If the curative petition also fails, the last resort of mercy petition opts which might help the convict or prisoner.

Layers Through Which the Mercy Petition Passes

The petition is filed and submitted by the prisoner or his relative to the governor or president depending upon the case. It is then received by the Secretariat of the President. The Secretariat sends it further to the Ministry of Home Affairs for their recommendation. The Home Ministry discusses it with the concerned state and checks the details such as the background of the criminal and the gravity of the crime. The Ministry after consulting with the state prepares a report with suggestions and sends it back to the President. The President after going through everything grants the pardon/remission or dismisses the plea depending upon the facts and need of the situation. This is a very time taking process and sometimes it takes years.

Powers of President

Pardon: To cancel the whole sentence and conviction of the prisoner.
Remission: The nature of the sentence remains the same with the reduction in the punishment like decreasing the number of years of rigorous punishment.
Respite: Certain special situations lead to the change in the punishment such as critical health issues to the prisoner.
Reprive: The execution is delayed for some time to provide the guilty person the time to prove his innocence.
Commute: The nature of the punishment is changed to decrease the harshness of punishment like converting the rigorous sentence into simple.

Shabnam v. State of UP Classic Case

Shabnam, a postgraduate and holding the post of the government school teacher, along with Saleem, killed all the 7 members of her family including a 10 months-old infant. She was sentenced to death by the Amroha Court which was upheld by Allahabad High Court in 2013 and also the Supreme Court in 2015. While in jail, she gave birth to a child. She filed two mercy petitions citing the reason as for the care of her child, first to the then-governor Ram Naik and then president Pranab Mukherjee but both the petitions were rejected. It was being argued that the convict has the Right to Life under the provisions of Article 21 but the judge dismissed the plea by saying that the family members also had the same rights. The apex court laid down the following observations:

The accused must be provided with prior notice and the accused along with its lawyer must be present during the proceedings of the case.
The death warrant of the convict must prescribe the exact date and time of the execution instead of a range of dates.
There must be a reasonable gap between the date of issuing the warrant and the execution date of the sentence so that the convict gets a reasonable time to seek legal remedies and meet his family.
The convict should be given a copy of the warrant.
Legal aid must be given to the convict during these proceedings.

Mercy Petition: Boon or Bane

Mercy petitions are essentially required everywhere because it is one of those few provisions which ensure the convict a second chance and the right to live which is not only a fundamental right under article 21 of the Indian Constitution but also a human right that cannot be denied. It is acting as a boon in the judicial skeleton. It helps in eliminating the situation where the ignorance of the judiciary results in injustice to the convict leading him to go through trauma and ill-health. In cases where the miscarriage of justice is seen, a mercy petition cures the damage done. Sometimes, it is also said that the mercy plea after crossing several chains lands in the periphery of politics, and recommendations by the ministry are not genuine and the best for the prisoner thereby failing the purpose of the mercy. Time is another crucial aspect in the mercy petition’s disposal. But at the same time, the procedural discrepancies result to delay injustice. This can be seen in the Nirbhaya case where the convicts were hanged after 7 years. So, we can say that the mercy petition acts as both a boon and bane. There is an urgent need to formulate laws specifying the time limit to dispose of with the mercy petitions for quick justice because- “Justice delayed is justice denied”

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The High Court has observed that all satellite TV channels telecast advertisements that contain nudity for promoting condom sales that are ruining young mind. Such advertisements are intentionally breaking the Cable Television Network Rules, 1994 and the Cable Television Network Act, 1995. The HC said that such content affects younger minds. The court had ordered to remove the “vulgar” teaser of movie ‘Irandam Kuththu’ from all the social media platforms.

High Court has observed that some condom advertisements, telecast by satellite TV channels, look like porn films that is spoiling younger minds. The court said such advertisements portray women in a manner that violates norms of decency established by various laws.

The court made this decision after hearing a PIL, filed by KS Sagadevaraja seeking directions to the Centre and the state government to take action against cable operators and TV channels for airing “vulgar” and “obscene” content.

‘Vulgar’ ads violate laws

After 10 pm almost all TV satellite channels, telecast some ads which contain nudity for promoting the sale of condoms for the profit.

The court temporary order to restrain the satellite channels to telecast content with vulgarity and obscenity, and sough response on programmes’ censorship as prescribed under the Cinematography Act, 1952.

HC ordered removal of ‘Irandam Kuththu’ teaser

The court had ordered to remove the teaser of film ‘Irandam Kuththu’ from social media platforms on November 11. The court had observed that the teaser exhibited obscenity that would corrupt the minds of youngsters, which, in turn, would result in an increase of crimes against women and minors.

Reported By:-Pankaj Sharma

Introduction

History of judicial review

Constitutional provisions for judicial review

Grounds for judicial review

Judicial pronouncement

Conclusion

Equivalent Citation

Bench

Decided on

Relevant Act/ Section

Petitioner

Respondent

Facts

Issues before High Court

Judgment by High Court

Contentions before Supreme Court

Judgment by Supreme Court

Conclusion

Citation

Decided On

Case Number

Bench

Relevant Section

Facts

Issue before the Court

Judgment

Conclusion

Case Number

Equivalent Citation

Bench

Decided on

Relevant Act/ Section

Brief Facts and Procedural History

Procedural History

Issues before the Court

Ratio of the Case

Decision of the Court

Introduction

Legal Provisions

When Can a Mercy Petition be Filed?

Layers Through Which the Mercy Petition Passes

Powers of President

Shabnam v. State of UP Classic Case

Mercy Petition: Boon or Bane

‘Vulgar’ ads violate laws

HC ordered removal of ‘Irandam Kuththu’ teaser

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