The courts perform a constitutional function of examining the validity of the actions of legislature not because they claim supremacy over the legislature, observed Justice B. Siva Sankara Rao of Hyderabad High Court.
Courts review actions of legislature because they are vested with that power, he stated in his verdict setting aside Congress MLAs’ suspension delivered two days ago. In fact, the HC’s power of judicial review is wider than that of the Supreme Court from the wordings of articles 32 and 226 of Indian constitution, he remarked.
He recalled the Supreme Court’s verdict in L. Chandra Kumar vs Union of India which said that the judicial review of legislature and administrative action is part of the Constitution’s basic structure. The doctrine of judicial review was, in fact, authoritatively added to the list of basic features of the Constitution by the apex court in the case of Minerva Mills.
Justice B. Siva Sankara Rao explained that the pro-active approach of Indian courts was applauded by courts in England, Australia and South Africa. The so-called activism of Indian courts is progressive and purposive interpretation of law. It is meant to serve the need of the hour and public interest, he observed.
Rules made by the legislature for exercising its powers under Article 194(3) of the Constitution must be subject to the fundamental rights of the citizens, he stated. Even if the proceedings inside the House are in violation of other articles like 14, 19 and 21, the courts have power of judicial review as all these articles commence with the word ‘subject to the provisions of the Constitution’, the judge explained in the verdict. A resolution of the Assembly as per rule 2 (1) (s) is a motion for the purpose of discussing a matter of public interest. It should be in the form of a special recommendation or declaration of opinion of the Assembly, the judge explained.
In Congress MLAs’ expulsion case, the resolution of March (which was uploaded on Assembly website on March 24) did not explain what discussion was undertaken or what motion was moved, he stated.
