The philosophy of judicial review is rooted in the principle that the constitution is the fundamental law, governmental organs must not do anything which is inconsistent with the provisions of the constitution and the theory of limited government. Thus, the judicial review makes the constitution legalistic.
In other words, judicial review means the judiciary can declare a law or legislation as unconstitutional if it is beyond the competence of the legislature according to the distribution of powers or if it’s in contravention of the fundamental rights or any of the mandatory provisions of the constitution. In Nepal’s context, Article 1 expressly secures constitutional supremacy and declares that any law inconsistent to the constitution would be void to that extent. The judicial review is thus the interposition of judicial restraint on the legislative as well as executive organs of the government.
In this context, Dr Bhimarjun Acharya’s book The Concept of Judicial Review provides a concise introduction to the concept of Judicial Review, constitutional arrangements relating to judicial review in Nepal, case laws pronounced by the sufficiently superior courts of Nepal, India, the United States (US), the United Kingdom (UK) and others. The book brings together a collection of six chapters which provide a critical investigation into the key issues, principles, concepts, comparative frameworks, judicial decisions, recent trends in judicial review, global precedents and Nepal’s constitutional as well as judicial position in safeguarding the rights and interests of the people.
The book delves deep into the concept, doctrine and practices of Judicial Review and tries to find answers to why Courts judicially examine the legislations and actions of the governments in a particular situation. The conceptual underpinnings are refreshing because they come through landmark judgments which are based on real life and they have secured the rights and interests of the people.
A 34-page long “Abstract” to the book by the author, a celebrated constitutional law commentator, is like an icing on the cake. Acharya, whose recurring theme has been the search for provisions and practices of judicial review in Nepal, India, the UK and the US among other countries, provides an incisive and in-depth analysis of the judicial interpretation for watering democratic/fundamental freedoms and constitutionalism.
In the first chapter, Dr Acharya, a distinguished lawyer, introduces the concept of Judicial Review (JR). The JR is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by an authority. On page 2, he writes, the system of JR can be classified into two types, namely, the judicial review of administrative action and the judicial review of the legislative acts.
The doctrine of judicial review has, in its long course of practice, been assessed as or shifted into the system or to an institution. Supremacy of the constitution and fundamental rights are upheld by it. In fact, there can be no living or a genuine constitution without judicial review.
Judicial review simply is a type of court proceeding in which the judge reviews the lawfulness of the decision or action made by a public body.
He writes: “In Nepal, the Constitution of Kingdom of Nepal, 1990, had ensured the system of Judicial Review as a basic structure of the constitution and it was not amendable part of the constitution.” The recently promulgated Constitution of Nepal has continued the provision of JR through its Article 133. Likewise, the High Courts enjoy the power of JR through Article 144 of the Constitution.
The crux of the system of JR fundamentally lies in the independence of the judiciary. It is said that judicial independence is maintained by the system of JR and that it becomes one of the fundamental components of constitutionalism and that of the rule of law.
Article 133 of the Constitution gives unlimited grounds of locus standi. “Any Nepali can file a writ petition in the Supreme Court (SC) seeking order to declare the legislative acts and administrative actions void to the extent of inconsistency with the constitution,” writes Dr Acharya on page 6. Explaining the significance of the concept of JR, he argues (on page 8) that “there will be no constitution without fundamental rights, no fundamental rights without judicial review and no judicial review without competent, impartial, responsible and independent judiciary.”
In addition to the concepts of JR, he has also discussed the fundamental rights and the directive principles too in the first chapter.
Dr Bhimarjun Acharya not only discusses Nepal’s perspective on judicial review but also devotes a good deal of section for international precedents.
In the second chapter, he discusses the concept of JR. He has cited international precedents that played a stellar role in the consolidation of the concept of JR. Lord Diplock of the House of Lords in Council of Civil Services Union (CCSU) v Minister for the Civil Services (1985) had laid down three grounds of JR: Illegality, irrationality and procedural impropriety.
The JR of legislative enactments is one of the peculiar features of constitutions of the United States, India, Nepal and so forth. There cannot be any JR of legislation in England where the parliament is supreme and it does not have any constitutional fetters on the powers of legislation.
He devotes a good deal of portion on limitations of JR, writs and their application in the field of JR. The constitution of Nepal has explicitly mentioned the provisions of Public Interest Litigation (PIL), which is a very much advanced form of judicial activism and cannot be found in Austrian and American models. In the US, there appears to be a robust practice of PIL but the same has not explicitly been mentioned in their constitution.
In the third chapter, Dr Acharya sheds light on the evolution of JR. As a constitutional practice, the JR is usually considered to have begun with the assertion by John Marshall, Chief Justice of the United States, in Marbury v Madison (1803), of the power of the SC to invalidate laws enacted by the Congress. In this case, learned Justice Marshall had asserted that it’s up to the judicial department, which is entrusted with the power, to say what the law is. In saying so, he clarified that the judiciary is the ultimate authority to decide the constitutionality of any law and order of the state.
On page 125, he writes, France has had a Constitutional Council since 1958, which, though not a true court, can set aside unconstitutional statutes upon the petition by the President of republic or by the Prime Minister, the Chairman of either of the two legislative assemblies, or a parliamentary minority.
In the fourth chapter, he has discussed Nepal’s perspective on JR. In Nepali context, Chief Justice Hari Pradhan of the Pradhan Nyayalaya (apex court of the country which was established in 1940) in Bed Krishna Shrestha v Ms Secretary, Department of Industry, Commerce, Food Civil Supplies (2010 BS) ruled that the power of judicial review was vested in Pradhan Nayalaya. Interpreting Section 30 of the Pradhan Nayalaya Act (2008 BS) as a source of power of the extraordinary jurisdiction, the court held that power and obligation of the Pradhan Nayalaya, under Section 30, was to prevent unlawful action in case it infringed on the fundamental rights of people.
Thus the Bed Krishna Shrestha case in Nepal established that the apex court had the power of judicial review. In Mrigendra Shamsher Rana v Inspector General of Police (2011 BS), Chief Justice Hari Prasad Pradhan for the first time in the judicial history of Nepal issued a directive order to the government to initiate immediate amendment in Raj Kaj Act.
In BP Koirala v Prime Minister of Nepal Government (2013 BS), the Supreme Court (SC) held that it had the power to issue appropriate orders and writs for enforcing the rights of the people conferred under the prevailing laws.
The pronouncement of Pradhan Nyayalaya in Bed Krishna Shrestha v Ms Secretary, Department of Industry, Commerce, Food Civil Supplies (2010 BS) can be compared with the pronouncement of American Supreme Court in Marbury v Madison (1803) in which Chief Justice Marshall has claimed that the power of the JR is inherent power of the apex court, argues Dr Acharya.
In this chapter, he has discussed the essential features of Nepal’s current constitution as well as the erstwhile constitutions of 1948, 1951, 1959, 1962, 1990, and 2007. In addition, he has cited dozens of landmark judgments of the apex court of Nepal.
In the fifth chapter, he has discussed the paradigm shifts that have come over in verdicts to analyze the progress of JR in Nepal. In this section, he has incorporated a number of leading case laws pronounced by Nepal’s topmost court to uphold constitutionalism and rule of law.
Dr Acharya gives the title of “Epilogues” to the final (sixth) chapter, where he has discussed the system of JR and its practices in the US, UK, India, Nepal and other countries.
On page 359, Dr Acharya writes: “The Nepali model of judicial review also needs to be modified and reformed. We need to establish a special Constitutional Court, like in most European countries outside the regular judicial system. The concept of establishing a Constitutional Bench in the Supreme Court has not worked properly.” “It can be right to observe that there can be no real constitution in absence of the system of JR,” he further writes.
Reason to read
If there is one reason to read Dr Acharya’s timely exposition it is his endeavors to give conceptual clarity on the judicial review and its role in upholding fundamental freedoms, rule of law and constitutionalism.
He does not only discuss Nepal’s perspective on JR but also devotes a good deal of section for international precedents. His book should be a mandatory reading for lawyers, judicial officers, adjudicators, journalists covering legal affairs, teachers and students of various streams, including that of social sciences and law.
Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.