Recently, in a number of different common law jurisdictions, there has been significant tension while considering the separation of powers between the judicial and the executive organs of the State. This tension has been visible and been the subject of vigorous debate and consideration.
For example, in the United Kingdom, the “Miller case” [R (on the application of Miller) vs. The Prime Minister] was a flashpoint vis-à-vis the powers of judicial review over parliamentary affairs.
Post the Miller case, the process of judicial review has been subjected to intense scrutiny and assessment in the UK. On July 31, 2020, during the pandemic, the UK government constituted a panel of legal and academic experts to examine the scope of judicial review. The outcomes of this panel may have significant and far-reaching repercussions even in other jurisdictions, especially India.
The UK Judicial Review panel
In an unprecedented move, the UK government constituted an independent panel to determine ‘whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government’. The panel has been tasked to consider and provide its findings on the following issues:
1. Terms of Judicial Review as a written law.
2. Applicability of Judicial Review on certain executive decisions.
3. Grounds and remedies available in claims brought against the government.
4. Any further procedural reforms including timings and the appeal process.
In other words, this essentially constitutes a political evaluation of the judicial review process. In order to understand the intention of the UK Parliament, one needs to appreciate the series of events leading up to this decision, none more so important than the UK Supreme Court’s judgment in the Miller case, where it intervened in the decision of the Prime Minister to prorogue Parliament.
The Miller case
In R (on the application of Miller) v. The Prime Minister, the UK Supreme Court was called to determine whether it could adjudicate and, if so, declare as unlawful the advice given by the Prime Minister to the Queen for Parliament to be prorogued. It had been alleged that the prorogation was suspiciously timed to align with the Brexit proceedings, permitting the government to bypass the Parliamentary approval required to give effect to the withdrawal agreement.
The UK Supreme Court, guided by the principles of Parliamentary sovereignty and accountability, was of the view that prerogative powers of the Crown, which includes the power to prorogue, is subject to Parliament enacted law and hence not unlimited. Thus the vires of prorogation was held to be dependent on whether such exercise of prerogative powers by the government is within the bounds of the constitutional principle of sovereignty of Parliament and responsible government.
Recognising its duties under the Constitution, the UK Supreme Court held that the extent of exercise of power to prorogue is justiciable and by doing so, it is not frustrating the separation of powers, but merely performing the function assigned to it.
It was further held that prorogation constitutes a colourable exercise of the prerogative powers as it restrains the Parliament from performing its constitutional obligations, and there is no reasonable justification for such intrusion in the fundamentals of democracy. The Parliament, consisting of democratically elected representatives of the people, has the right to participate in such crucial decisions.
Reforms in Judicial Review
In India, the Constitutional Amendment for the establishment of the National Judicial Appointments Commission (NJAC) saw the legislature and executive jointly pitted against the judiciary. This in 2015, resulted in the famous Supreme Court judgement striking down the NJAC in favour of the Collegium system. This case is an example of the need for a detailed dialogue of the judicial review powers available in India.
As the UK looks to reassess the scope of judicial review, India cannot be immune to such reviews and reconsiderations. There is no doubt that such an appraisal of the judicial review process in India is highly improbable, as the Constitution of India under Article 50 obligates the maintenance of the independence of judiciary. Nevertheless, it is equally true that such an exercise would provide the long sought clarity on the extent to which the judiciary can interfere into political territory, as seen with the NJAC case.
At present, the UK panel is due to submit its report towards the end of the year. No doubt, the legal fraternity in India will consider carefully the recommendations of the UK panel to establish how the framework in India could be improved for the benefit of the executive, legislature and the judiciary as well as the ordinary citizens of India.
The authors are Advocates at Chennai-based law firm Ganesan and Manuraj Legal LLP.