Proper Scope Of Judicial Review

PROPER SCOPE OF JUDICIAL REVIEW PROPER SCOPE OF JUDICIAL REVIEW BY A. K. BROHI PAPER PRESENTED TO THE THIRD COMMONWEALTH & EMPIRE LAW CONFERENCE HELD IN SYDNEY (AUSTRALIA) FROM 25TH AUGUST TO 1ST SEPTEMBER 1965 The answer to the question: What ought to be the scope of the power of `judicial review', can be returned only after an examination of the concept of `judicial review' as it has been evolved and applied in the English‑speaking world in the course of the last two hundred years or so. This would admittedly be an exercise in normative jurisprudence. The aim of the exercise would 'be to ascertain the reasons that have been responsible for the evolution and application of the doctrine of `judicial review' just to be able to set the limits within which its reach, in principle, ought to be confined. The doctrine of `judicial review', to begin with, was invoked primarily to discover the precise nature of the authorisation under which an organ or the agent of sovereign power had been charged to act with a view to determining whether or not, while professing so to act, it had transgressed the limits within which that power was really available to it. Broadly speaking, the doctrine of judicial review has reference to the power of Courts to enforce and apply the doctrine of ultra vires. The question in each case for the judicial power is: "Is the, power exercised by a public functionary, be that provision contained in the undamental or the ordinary law, within the scope of the authorisation conferred by a given provision of law? The Courts of law, by means of the exercise of power of judicial review, maintain the supremacy of law (be it fundamental or ordinary) and they achieve this by declining to give any legal effect to those acts and omissions complained of by aggrieved parties, which, in their judgment, are beyond the powers con ferred by law. The origins of the doctrine of judicial review have been traced back to he argument of Sir Edward Coke who, in Dr. Bonham's case decided in 1610, had observed: "And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void" (English Reports: LXVII, p. 638 at 652). This is an argument based on the necessity to select from conflicting rules of binding value the one which the Court believes to be right and proper to follow in the decision of a controversy presented to it for its adjudication. It would be recalled that Dr. Bonham, who had been charged for having violated the statute, was adjudged by the Chief Justice of England to be `not guilty' upon the premises of the reasoning reflected in the quotation cited above, viz., that the law in question was void. The implications of this case have been viewed by Kelly and Harbinson in a somewhat different setting. In their words: "This case upon casual examination appears to be a seventeenth century application of the doctrine of judicial review. Actually, it may, not be so regarded. The modern American concept of judicial review has to do with the power of a Court to hold an act of a co‑equal legislative body invalid as repugnant to the Consti tution. In Coke's day, however, no clear‑cut idea of Parliament as being strictly a legislative body had yet emerged, nor had the later notion of the separation of powers any hold upon political thought of the time. Coke was thus upholding the validity of one set of Courts, those of the Common Law, as against another, the High Court of Parliament. Notwithstanding this, the case certainly contains the idea that the common law embodies the principles of natural law and natural right, and that it therefore can control the acts of an important agency of the Government." The learned authors go on to add: "Coke became the principal legal authority in colonial America in the eighteenth century, in part because his Institutes and Commentaries on the Common Law were among the very few legal works accessi able to colonial lawyers; in part because many colonists studied law at the Inns of Court in London, where Coke's ideas were still given wide currency, even though many of them were no longer generally recognized in English practice. Coke's notion that the common law and Magna Carta reflected natural law and could, therefore, control acts of Parliament thus gained wide acceptance in America, even though the doctrine was generally rejected in England after 1700." (See "American Constitution‑its Origin and Development" p. 46). LEADING CASES The leading cases in the system of United States jurisprudence that evolved and applied the doctrine of judicial review are Marbury v. Madison (1803) 2 Law. Ed. 60; M'Culloch v. Maryland (1819) 4 Law: Ed. 579 and Adkins v. Children's Hospital (1923) 261 U. S. 525. The doctrine of judicial review, as enunciated and applied in these cases, is based on the acceptance by the judicial power of the truth of the following propositions: (1) Constitution is law which is enforceable by Courts ; (2) It is a law of higher obligation than the ordinary law; (3) In the event of conflict between Constitution and ordinary law, it is for the Courts in the enjoyment of their interpretative function to resolve the conflict when by means of appropriate proceedings they are called upon to do so; (4) When such a case is presented, the Court merely enforces the law of the superior obligation and in the process declares the ordinary law unconstitutional on the ground of its being repugnant to the law of higher obligation; (5) Having regard to the fact that the Constitution of United States is reared on the foundation of the theory of separation of powers, a judicial interpretation of law by the Court, be it organic or ordinary, is final for the decision of the case presented to it for adjudication. To the law‑applying organs of the State is committed the duty of deter mining rights of citizens and enforcing liabilities and obligations sanctioned by law. In the absence of the binding constitutional mandate to the contrary, judicial power has no option but to determine whether a non‑sovereign Legislature has competently enacted the law and has done so consistently with the. terms of its own authorisation that can be spelt out from the relevant constitutional provision under which it was charged with the duty of legislating.. In the context of American constitutional history, the power of judicial review had a great deal to do with the desire of the Courts to uphold the supremacy of the Constitution, and Justice Holmes made this very point when he remarked: "I do not think United States would come to an end if we (that is the Judges of the United States Supreme Court) lost our power to declare acts of Congress void. I do think, however, that the Union would be imperilled if we could not make that declaration as to the laws of the several States." (See his "Collected Papers" pp. 295=296). That, then, is the political justification par excellence for the exercise of power of judicial review a power which is not expressly granted by the American Constitution to the Courts but is something indulged in by them and acquiesced in by the people of the United States. The American Courts, however, have extended the doctrine of judicial review beyond the frontiers suggested by a mere desire that the several States, the Congress, the President, and the Court itself‑each of them keeps itself within its own allotted sphere and does not over‑step the powers conferred upon it by the Charter that created it. In the language of Justice Learned Hand, over and above the exercise of this power, the Court virtually acts as a `communal monitor', a third legislative chamber, in that, in effect and in substance, it feels itself free to legislate under the Fifth, the Fourteenth Amendments and the "Commerce Clause" etc., upon controversial subjects. The Court, in these matters, sets out to determine not merely the limits of power within which the organs and agents set up by the `people' are called upon to function, but also proceeds to control the just exercise of those powers under the aegis of "due process" clause. Speaking in 1942 on the 250th anniversary of the Supreme Judicial Court at Boston, he observed in defence of the former function: "The Constitution is primarily an instrument to distribute political power, and so far it is, it is bard to escape the necessity of some tribunal with authority to declare when the prescribed distribu tion has been disturbed. Otherwise those who hold the powers will be likely, in the end, to dominate and absorb everything else except as astute executives may, from time to time, check them by capturing and holding popular favour . . . . . . I do not mean that the Court should approach constitutional questions as they approach statutes, and they have never done so when they knew their business; constitutions can only map out the outline roughly‑, inevitably leaving much to be filled in. The scope of the inter state commerce power of the Congress is an ever‑present instance. It is impossible to avoid all such occasions but it was a daring expedient to meet them with Judges, deliberately put beyond the reach of popular pressure. And yet granted the necessity of some authority, probably independent Judges were the most likely to do the job well." It is to independent judiciary then that the high, responsible and august task of interpreting the Constitution must necessarily be assigned, if the Constitution at all is to work. Having shown the necessary function of the Courts in America as the arbiter of the distribution of power of Government, Justice Learned Hand turns to that distinctive feature of the American Cons titution that makes room for the proclamation of those `stately admoni tions' couched as general principles‑that are designed to ensure just exercise of those powers. Falling in this category arc the due process clause and its like and in discussing them the pitfalls and dangers that beset the way of those who are charged with the duty of applying and enforcing these principles are adequately recognised. In his words: "Those stately admonitions . . . . are the precipitates of old, unhappy, far‑off things, and battles long ago originally cast as universals to enlarge the scope of the victory, to give it authority, to reassure the very victors themselves that they have been champions in something more momentous than a passing struggle. Thrown large upon the screen of the future as eternal varieties, they are emptied of the vital occasions which gave them birth and become moral abjurations, the more imperious because inscrutable, but with only that content which each generation must put into them anew in the light of its own experience. If an independent judi ciary seeks to fill them from its own bosom, in the end it ceases to be independent. And its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and conditions of men, nor will its answers be theirs; it must be content to stand aside from these fateful battles. There are two ways in which the; Judges may forfeit their independence if they do not abstain. If they are intransigent but honest, they will be curbed; but a worse fate will befall them if they learn to trim their sails to the prevailing winds. A society whose Judges have taught it to expect complaisance will exact complaisance; and complaisance under the pretence of interpretation is rottenness. If Judges are to kill this thing they love, let them do it, not like cowards with a kiss, but like brave men with a sword." The `due process clause' contained in the Fifth and the Fourteenth Amendments of the Constitution of United States has been construed by the Courts of that country as requiring that the fundamental rules of judicial procedure should be respected. So viewed it is the concept of `natural law' and as is its foster child `the principle of natural justice' which is being intro duced as a decisive norm if not a license to the Court in considering regulatory legislation "to roam" as it was said in Adamson v. Coliforntia "at large in the broad expenses of policy and morals, and to trespass, all too freely on the legislative domain of the States as well as the Federal Government (See 332 U. S. 46 (1947)). But the `due process' thus conceived, according to Frankfurter, J. is not to be had as a resort to the revival of `natural law' The faculties of the due process clause may be indefinite and vague but the mode of their ascertainment is not self‑willed. In each case `due process of law' requires an evaluation based on the disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, or the detached consideration of conflicting claims, on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and change in a progressive society. It is these sorts of judicial dicta which make it impossible to depict the reach of due process clause. It has not go, any well defined frontiers and its scope is not capable of being defined it terms of any ascertainable principle. Before 1868 when the Fourteenth Amendment became a part of the American Constitution, by and large, the due process clause of the Fifth Amendment was interpreted to mean some sort of a clog upon the federal power: it was construed by the Supreme Court as guaranteeing certain proce dural safeguards to persons before they could be deprived of their `life, liberty and property'. An examination of the case‑law on this subject would amply demonstrate that the due process clause upto that time, at any rate, was of significance primarily in criminal cases and the substantive conception of the due process clause, although it appears to hay; influenced the minds of some of the Judges of the Court had not, as then, attained any firm recognition it the way it did subsequent to 1876. Various reasons have been assigned by the constitutional historians of United States to account for the way in which the Supreme Court of Unites; States began steadily to lend its support to the substantive conception of the due process clause. It is important to bear some of the outstanding facts of American constitutional history in mind while the case‑law of that country, is invoked for understanding the principle upon which the progressive inter pretation of its Constitution has proceeded. In the back‑ground of these decisions lies the steady mounting impact of 170 years of economic and political forces that have shaped the course of judicial interpretation of these two Amendments. And the considerations that have ultimately prevailed with the Supreme Court are now frankly being acknowledged by the apologists of its decisions, on this count, to be due less to the logic of strict adherence to judicial interpretation of the constitutional document and due more to the pressure of political and economic conditions of the American Social History. The growth of the conception of substantive due process has been explained by appeal to several factors. And some of these, according to Kelly and Harbinson, are: "First, the whole spirit of the times was against extensive state regulation of the new economic life in America. American industry seemed to be doing very well indeed for itself without the necessity of any governmental interference. Most of America was profiting in one way or another by the tremendous rise in industrial Wealth and productive power. True, a few industries and a few men associated with them were amassing fortunes beyond the comprehension of the average person, but the great majority of Americans saw no wrong in the acquisition of wealth: they asked only an equal opportunity to use their own imagination, skill, business sense, and good fortune to enrich themselves. Most Americans despised any suggestion of paternalism in government. The modern idea of the service state had not yet arisen . . . . . . "American industry had always been in politics to some degree. After 1850, however, industry and the rail‑roads went into state politics to an extent hitherto unknown. They put forward their own attorneys as candidates for office ; they donated funds to political parties; they backed this or that faction in the state Legislature. Sometimes less scrupulous industrial leaders resorted to bribery. The eighties and nineties saw a new low in the moral level of the American State Legislature . . . . The judiciary could hardly be expected' to remain immune to the `big business' conception of the role of Government in society . . . . . Thus, it is not surprising that the attitude of Supreme Court, as well as that of the Federal and State judiciaries in general, began to reflect the economic and social attitudes of big business. Judges of this background might be expected to interpret the Constitution in the light of the laissez‑faire economic philosophy and to regard the Constitution and the judiciary as bulwarks of property. They did not disappoint these expectations". It is this elasticity of approach with which the judicial power in the United States has looked upon its own duty of interpreting the constitution, and the law, which is the point of chief concern with the critics of the power of judicial review of legislation. It is for these reasons that Justice Learned Hand cautions us against the propriety of the power of judicial review further ing its frontiers under the guise of securing `just administrations of public power. "DUE PROCESS" In the Constitutions of India and Pakistan the due process clause of the United States Constitution is not implicated in terms, but the formulation of fundamental rights contained therein, particularly those fundamental rights which are guaranteed by the Constitutions of the two countries, subject to reasonable restrictions, has virtually brought the application of due process clause very much in the focus. The freedom of speech and expression under both of these Constitutions is guaranteed, subject to reasonable restrictions imposed by law, in the interest of the security of the State, friendly relations with the foreign States, public order, decency and morality or in relation to contempt of Court, defamation or incitement to an offence. Similarly, a citizen's right to assemble peacefully and without arms is guaranteed, subject to reasonable restrictions imposed by law, in the interest of public order; and the right to form associations or unions is also guaranteed, subject to reason able restrictions imposed by law in the interest of morality or public order. Similarly, a citizen's right to move freely throughout the country, and to reside and settle in. any part thereof, is guaranteed subject to any reasonable restrictions imposed by law in the public interest. So also freedom to acquire land and dispose of property is available (a) subject to the right of the State to acquire property for public purpose, provided the law relating to such acquisition makes provision for adequate compensation, and (b) subject to any reasonable restrictions imposed by law in public interest: Similarly, citizen's have the qualified right to enter upon any lawful profession or occupation. These qualifications have reference to the power of the State to regulate trade or business by a licensing system and the carrying on by the Federal or a Provincial Government or by a corporation controlled by any such govern ment of any trade, business, industry or service, to the exclusion, complete or partial, of other persons. Similarly the right to profess, practise and propa gate any religion is guaranteed subject to law, public order, morality etc. etc. The foregoing enumeration of qualified rights and liberties is in the nature of an attempt to balance the interest of individual liberty, on the one hand, and the necessity of imposing some manner of regulatory control, in the interest of society, on the other. What is guaranteed is this: not free dom in the abstract but what may in the felicitous phrase of Justice Cordozo be called `ordered' liberty. In actual working, the Constitutions of India and Pakistan, in relation to these qualified liberties, then, exhibit in substance and in effect the guarantee of the due process clause contained in the Fifth and the Fourteenth Amend ments of the United States Constitution as interpreted by the Supreme Court. In the case of Ram Singh v. State of Delhi A I R 1951 S C 270 at p. 276 Bose, J. in a minute of dissent, while commenting on the grammar of Indian Article 19 which deals with these qualified rights, observes: "In every phase, it is the rights that are fundamental, not the limitations; and it is the duty of this Court and of all Courts in the land to guard and defend these rights, jealously. It is our duty and privilege to see that rights which were intended to be fundamental are kept fundamental and to see that neither Parliament nor the Executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms, and in the case of the Executive, to see further that it does not travel beyond the powers conferred by Parliament. We are here to preserve intact for the people of India the freedoms which they have learned through the years to cherish, to the very fullest extent of the guarantee, and to ensure that they are not whittled away or brought to nought either by Parliamentary legislation or by executive action." ENGLISH SYSTEM In the system of English jurisprudence there are no rights and liberties guaranteed by express word of the Constitution if only because the English Constitution is an unwritten one. But this is no draw‑back; it is a cardinal principle of the law of English Constitution that the subject may say or do what he pleases, he may move anywhere he likes and form association and act in concert with his fellow men, provided he does not transgress the substantive law or do acts which invade the legal rights of others. Similarly, the authorities charged with the duty of maintaining public order or perform ing any governmental duty cannot do anything to the prejudice of these individual rights unless they can show that they were authorised to do that act by some rule of common law or by some provision made by a statute (See Entick v. Carrington).(1765) 19 St. Tr. 1030 The position under the British Constitution is often summed up by the employment of a phrase which has acquired a well known connotation: In England, it is said, there is the `rule of law'. By that phrase is meant the idea that the existence or non‑existence of a justification to do anything by a public functionary is a matter that can be decided solely by appeal to some statute or some judicially decided principle. Even the existence of a necessity does not constitute any sufficient justification for resort to the exercise of a power or fulfilment of a duty which cannot, strictly speaking, be said to flow either from a statute or precedent. In the case of extreme urgency, how ever, when the ordinary law of the land cannot function; there is the common law right in the public authority to repel force by force and to do all acts necessary to bring back order to prevail in the country and thus secure normal functioning of government machinery, but even these have to be protected by the eventual passing of Acts of Indemnity by the Parliament. The extent to which the private rights of individual are jealously guarded even in cases of necessity is well illustrated by the Burmah Oil Co.'s case (1964) 2 All. E R 348, in which retrospective legislation to overcome a finding that compensation was due to the Burmah Oil Company in respect of `denial', damage is the subject of active debate . . . . . . On the day before the Japanese entered Rangoon, the company's installations were destroyed on the orders of Lord Alexander. The Crown throughout took the view that no compensation was payable. The Company, however, instituted proceedings in the Scottish Courts (it is regis tered in Scotland) and ulimately in the House of Lords the verdict of the trial Court in favour of the company was restored and that of the C. A. reversed. On April 13, 1965, a War Damage Bill was passed by the House of Commons was rejected in the Lord's (acting in a legislative capacity). The Commons have thrown out the Lord's amendment and ultimately the Bill is likely to become law, but the long battle in Courts and the controversy it bad evoked illustrate the vigour with which the rights of private citizens are guarded. Lord Devlin, writing in the Sunday Observer, May 16, 1965, has gone so far as to say: "If this Bill becomes law, it will shatter the simple belief that we in‑ Britain are blessed among nations in that we do not have to rely for our liberties upon the provisions of a written constitution since they are enshrined for ever in the hands of the governors as well as the governed." Important liberties of, the British subjects have been set forth in para graph 437 of Volume VI of Halsbury's Laws of England (Second Edition) where it is stated that the most important liberties are the following: "(1) The right of personal freedom, or immunity from wrongful deten tion or confinement, which is ensured by action of false imprison ment and by the writ of habeas corpus, reinforced by the Habeas Corpus Acts, under which,, upon probable cause being shown by an affidavit, either of the prisoner himself, or of some other person on his behalf, a writ may be obtained directing the person having charge of the prisoner to produce his body before the King's Bench Division, in order that the reason of his detention may be inquired into. (2) The right of property, which is protected by various proprietary and delictual actions, in particular the actions of trespass quare calausum fregit, and of trespass de bonis asportatia. (3) The right to freedom of speech or discussion, which means that any person may write or say what he pleases, so long as he does not infringe the law relating to libel or slander, or to blasphemous, obscene or seditious words or writings. This right is closely connected with and covers that of freedom of conscience. (4) The right of public meeting which means that persons may meet together so long as they do not thereby trespass upon private right of property, or commit a nuisance, or infringe the law relating to public meetings or unlawful assemblies. (5) The right of association, which arises from the fewness of the restrictions on the making of ‑ contracts and the constitution of trusts, from the ease with which companies can be formed under the Companies Act, and trade unions under the Trade Unions Act, and from the laxity of conspiracy. These rights and liberties are not guaranteed by any fundamental law of the realm if only because there is nothing like fundamental law as opposed to ordinary law within the frame‑work of the English Law of Constitution. "Safeguard of British liberty" as was observed by Lord Wright in the case of Liversidge v. Sir John Anderson and others(1942 A C 206) "is in the good sense of the people and in the system of representative and responsible government which has been evolved". To the same effect are the observations of Prof. Dicey: "There is in the English Constitution an absence of these declarations or definitions of rights so dear to foreign constitutionalists. Such principles, moreover, as you can discover in the English constitu tion are, like all maxims established by judicial legislation, mere generalisations, drawn either from the decisions or dicta of judges or from statutes which., being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament." (See Dicey's Law of the Constitution, (1952 Ed.), p. 197). The British Courts avowedly have not the authority to protect the people from the encroachments made by Legislature upon the "inalienable rights" of life, liberty, property and pursuit of happiness" as the American Courts to a limited extent are wont to do. Under the British system of government, the general idea is that Judges have no control over the policy of Parliament except when they are called upon to decide between two conflicting claims to legislate advanced by the regional and national governments in a federal system and that too strictly to determine the question of their respective fields of legislative competence by applying the doctrine of ultra vires. It is inherent in the nature of things that human rights are incapable of a clear‑cut formulation and no code defining the rights of the citizens can afford to omit mentioning numerous specific qualifications subject to which that right is available. Prof. Wheare illustrates this dilemma by referring to the provisions of the constitution of Ireland. That constitution, it would be recalled, contains a series of Articles‑Nos. 40 to 44‑enunciating fundamental rights. Prof. Wheare goes on to remark; "Consider this statement first: 'No citizen shall be deprived of his personal liberty save in accordance with law' and then points out: "A little later there follows the following qualification: `The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law, and raises the question:' What does this guarantee amount to? The answer must be: `It all depends on the law.' If wide discretionary powers of arrest and forcible entry are given by the law to the forces of the State, then the right of the citizen will be severely restricted." (See his "Modern Constitutions" p. 57). I have in the foregoing traversed those substantive provisions of the written Constitutions of United States of America, India and Pakistan which have reference to Bills of Rights they have guaranteed to their subjects in an endeavour to show that, in so far as these provisions guarantee justiciable rights, the province of judicial review necessarily extends to the task of apply ing some vague and ill‑defined terms and phrases with a view to ascertaining whether in a given case the guarantees furnished by the Constitution are at all applicable. In the British system of jurisprudence, preservation of these rights is secured by an independent judiciary interpreting statutory law in such a way as to make it consistent with the eager maintenance of the rights of the individual to life, liberty and property. As a matter of fact, the grounds on which judicial review of administrative action is available in England, as also in Canada and Australia, practically cover the same field as is available in a system of jurisprudence which guarantees fundamental rights. OPERATION OF A POLITICAL PRINCIPLE The peculiar advantage which is gained by providing for judicial review of legislation is to high‑light the operation of a political principle‑the device to save the rights of individual from being taken away by brute majorities in the Legislature or by the unrestrained enthusiasm of over‑zealous Executives. It is the contemplated failure of politics‑absence of healthy, constructive and honest politics‑which occasions the need for a Bill of Rights as a brake upon the vagaries of irresponsible politicians who may happen to find them selves in a majority in the Legislature or in charge of the operation of governmental administration of public affairs. For instance, one of the most important consideration which inclined the framers of the Constitutions of India and Pakistan to include fundamental rights in their respective Cons titutions was that in those countries one has to deal with pluralistic societies where there are religious denominations and minority communities living side by side with the ruling majority community professing allegiance to a .religious way of life and it was necessary to provide in the circumstances some manner of guarantee against which the will of the Legislature and execu tive rule by the majority party may not prevail. There is no better guarantee against executive and legislative encroachments of the "inalienable" rights of individual citizens, particularly where the democratic tradition is not well settled in the way the body‑politic of a country operates, than the inclusion of specified fundamental rights in the Constitution of that country. "The very purpose of a Bill of Rights" says Mr. Justice Jackson "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by Courts. One's right to life, liberty and property, to free speech and a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no election." West Virginia State Board of Education v. Barnette. (1943) 319 U S 624 at 638 Some historians of legal institutions of mankind have also attempted to justify the assumption by Courts of the power of judicial review of legislation on the ground that the 'written' Constitutions are not, speaking generally, easily amendable in view of the special procedure prescribed for their altera tion. The Courts by resort to interpretative functions do the best they can, consistently of course with the letter and the spirit of the Constitution, to deliver a final opinion on questions that cannot wait till the Constitution is amended. The objection is often taken that the power of judicial review, particularly in the sphere of effective application of the due process clause, is indefensible, in that, under its garb, the higher law is virtually, at least in the economic sphere, often invoked to conserve business interests of the dominant class in society. To this objection it is a sufficient reply to say that this is something that is unavoidable, having regard to the fact that the business activity, like any other activity in the State, must be spared the ravages of indiscriminate and rash legislative interferences. This is the only way in which economic forces of our time can at all be channelised. Stablised business conditions are necessary if we are at all to have the opportunity of progressing in the economic sphere. The basis of fundamental rights is grounded in the philosophy which maintains that there is a higher transcendental law which cannot be undone by ordinary legislation. From this it follows there is in existence a graded scale of values which it is the function of the Courts as custodians of the Constitution to invoke and apply in giving effect to the statute law. If this view is correct, we are in a position to understand the difficulties that must be faced if the constitutional limitations which must, from the nature of the case, be embalmed if static and petrified provisions are to be made applicable to the changing conditions in a dynamic society, for, here is a fertile ground upon which the Judges applying the law are bound to discover the interplay of conflicting axiological notions. Judicial interpretation of fundamental rights, or, as a matter of fact, of any other constitutional limita tion upon the State power, is bound to vary with different Judges, if only because the different Judges who are called upon to interpret those provisions, consciously or unconsciously, are influenced by the type of the prevailing economic and social philosophy to which they subscribe. The ruling ideas of the age become a fact in issue every time an attempt is made to interpret those constitutional provisions that cannot be understood without making a reference to them. For instance, when the balance between the interest of national security and the right to individual freedom has to be struck, a line can only be drawn between these contending values in terms of some social philosophy to which a particular Judge might owe his allegiance. This is so because existing economic and political conditions can only be viewed in the light of the scale of value which a Judge places before himself as repre senting the norms against the back‑ground of which, in his opinion, judicial process must work. It is for this reason that Professor Friedmann in his book 'Legal Theory' says: "Natural law thinking in the U. S. undoubtedly inspired the fathers of the Constitution, and it has dominated the Supreme Court more than any other law Court in the world. Such thinking has not prevented the Court from vacillating, from the unconditional condemnation of legislative regulation of social and economic conditions to its almost unrestricted recognition, from the recog nition of almost unrestricted freedom of speech and assembly to the virtual outlawing of a political party, and, on the other hand, from the toleration of the most blatant discrimination against negroes to the strong protection given in recent judgments. Yet the American Constitution gives as near an approach to the unconditional embodiment of `natural' rights as can be imagined. It is not the weakness or the vacillations of the Court which in the face of such provisions have created so much uncertainty. The generality of `Bills of Rights' and similar provisions can disguise but not eliminate the conflict of values and interests which is ever present. Neither the Australian nor the Canadian Consti tution‑which are more easily comparable to the U. S. Constitu tion than any other‑contain Bills of Rights, yet the conflict between economic freedom and State regulation, between the freedom of the individual and the power of self‑protection of the State, and other basic conflicts have arisen in much the same manner, though in a different legal form" (Friedmann `Legal Theory' p.67). As an illustration of the utter impossibility of avoiding the difficult task of interpreting a Constitutional Instrument (which does not include within its provisions a Bill of Rights) without reference to economic and political back ground of the time, we might refer to the case of Commonwealth of Australia v. Bank of New South Wales'. Lord Porter, delivering the judgment of the Privy Council in that case remarked upon the relevancy of political; social and economic factors involved in the interpretation of expression like "trade being . . . . . free absolutely", occurring in section 92 of the Australian Constitution: "It is generally recognised that the expression `free' in section 92, though emphasized by the accompanying `absolutely', yet must receive some qualification. It was, indeed, common ground in the present case that the conception of freedom of `trade, commerce, and intercourse' in a community regulated by law presupposed some degree of restriction on the individual. As long ago as 1916 in Duncan v. State of Queensland,' Sir Samuel Griffith, C J. said: `But the word `free' does not mean extra legem, any more than freedom means anarchy. We boast of being an absolutely free people, but that does not mean that we are not subject to law'. Though all the subsequent cases in which section 92 has been discussed, the problem has been to define the qualification of that which in the Constitution is left unqualified. In this labyrinth there is no golden thread, but it seems two general propositions may be excepted: (1950 A C 235) that regulation of trade, commerce acid intercourse, among the States is compatible with its absolute freedom, and (22 C L R 573) that section 92 is violated only when a legislative or executive act operates to restrict such trade, commerce and intercourse, directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote. In the application of these general propositions, in determining whether an enactment is regulatory or something more, or whether a restriction is direct or only remote. or incidental, there cannot fail to be differences of opinion. The problem to be solved will often be not so much legal as political, social, or economic, yet it must be solved by a Court of law. For where the dispute is, as here, not only between Commonwealth and citizens but between Commonwealth and intervening States, on the one hand, and citizens and States, on the other, it is only the Court that can decide the issue. It is vain to invoke the voice of Parliament." It is by now admitted on all hands that many of the leading cases in the first decade, after the establishment of the High Court of Australia, arose from challenges, many of them successful, to the fiscal and economic policies of the early Commonwealth Governments. (See the King v. Barger (1908) 6 C L R 41; The Union Label Cases (Attorney‑General for New South Wales v. Brewery Employees Union of New South Wales (1908) 6 C L R 469 Huddart Parker & Co. Proprietary Ltd. v. Moorehead (1908) 8 C L R 330; Owners of Kalioig v. Wilson ((1910) 11 C L R 689); Bootmakers' cases ((1910)11CLR1 and 311); Osborne v. The Commonwealth and George Alexander McKay (Commissioner of Land Tax)( (1911)12CLR321); The King and the Attorney‑General of the Commonwealth v. The Associated Northern Colleries;( (1912) 14 C L R 387) Adelaide Steamship Co. Ltd. v. The King and the Attorney‑General of the Commonwealths ((1912) 15 C L R 65) and Attorney‑General of the Commonwealth v. Adelaide Steamship Co. Ltd.( (1913) 18 C L R 30) It is precisely because of the peculiar role of ‑American Supreme Court, regarded as a political institution (and the truth of this observation would be apparent to anyone who cared to study the specific modes in which the Judges of that Court have allowed themselves to be influenced by the prevailing philosophy of the time and by the nature of the political and economic situation with which the country has been confronted), that Mr. Justice Frankfurter in his `Some Reflections on the Reading of Statutes' gives expression to the attitude which must, in his opinion, characterise the approach of those who are charged with the duty of settling questions relat ing to constitutional and statutory interpretation: "There are varying shades of compulsion for Judges behind different words, differences that are due to the words themselves, their setting in a text, their setting in a history. In short, Judges are not unfettered glossators. They are under a special duty not to overemphasise the episodic aspect of life and not under‑value its organic processes‑its continuities and relationships. For Judges at least it is important to remember that continuity with the past is not only a necessity but even a duty. "There are not wanting those who deem naive the notion that Judges are expected to refrain from legislating in construing statutes. They may point to cases where even our three justices apparently supplied an omission or engrafted a limitation. Such an accusa‑ tion cannot be rebutted or judged in the abstract. In some ways, as Holmes once remarked, every statute is unique. Whether a Judge does violence to language in its total context is not always free from doubt. Statutes come out of the past and aim at the future. They may carry implicit residues or mere hints of purpose. Perhaps the most delicate aspect of statutory construction is not to find more residues than are implicit nor purposes beyond the bound of hints. Even for a Judge most sensitive to the tradi tional limitation of his function, this is a matter for judgment not always easy of answer. But a line does exist between omission and what Holmes called `misprison or abbreviation that does not conceal the ‑purpose'. Judges may differ as to the point at which the line would be drawn, but the only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive as well as trained, reluctance to do so." It would be seen that the American approach is different from the traditional approach with which lawyers and Judges in the Commonwealth countries who are schooled in the British system of legal thought and practice, regard their office when setting out to interpret and apply statutory or constitutional instruments to the solution of questions submitted for their advice or adjudication. REVIEW OF ADMINISTRATIVE ACTION The ground on which judicial review of administrative action can be undertaken by regular Courts of law in England as also in most of the Commonwealth countries are fairly well‑settled. Over and above the invoca tion of the doctrine of ultra vires there are several other grounds upon which review of the legality of administrative action by means of appropriate proceedings can be obtained. The doctrine of ultra vires can be successfully invoked if it can be shown that the administrative agents have done things which are not authorised by the statute. Broadly speaking, the issue raised is always one of legal competence of the recipient of statutory powers to do the thing by which the party claims to be aggrieved. Each time the question is: Is the administrative action within the legal competence of him who has done it? Has he exceeded the authority? The question can be split up into the following 3 components: (1) Is it shown that there has taken place abuse of the `discretion' vested in the Administrative Agent for a collateral purpose or has he exercised his power arbitrarily? (2) Is it shown that the basic conditions with reference to which the existence of power to act could be said to be vested in an adminis trative agent has been correctly found to exist to the satisfaction of their superior Court? (3) Has there taken place a non‑observance of statutory procedure of a mandatory character? If there is any condition precedent' prescribed by law before legal com petence to act is to get vested in an administrative agent, the non‑existence of that condition can deprive the agent in question of his authority to exercise the power assigned to him under law. In such a case, the tribunal cannot be suffered by, the superior Courts, to invest itself with legal competence to do the thing in question by erroneously determining the existence of a con dition precedent. These `jurisdictional facts' are capable of being reviewed by superior Courts since they affect vitally the finding on which the existence of jurisdiction relied on, depends. (See the case of In re Rippon Housing Order((1939) 1 All E R 508) and the earlier cases (1881) 21 Q B D 313 and L R 5 P C‑417). But if, as it sometimes occurs, the very decision as to the existence of jurisdic tional facts is consigned to the realm of `subjective satisfaction' of him who is invested with the exercise of power in question, the Court would precluded from convassing the correctness of that decision‑as distinguished from merely its duty to be satisfied that the donee of power was so satisfied. See Liversidge v. Anderson.( (1942) A C 206) Similarly, if a person is authorised by the statute to do certain things, in the total absence of the statute enabling him to delegate his powers, he cannot be suffered to entrust to another person the exercise of the power given to him by the statute. The normal rule is that a delegate has no power to delegate: `delegatus non potest delegare'. Should the delegate thus unaatho risedly delegate his power to another, the situation would arise in which the doctrine of ultra vires would be successfully applied. See the case of Allingham and another v. Minister of Agriculture and Fisheries((1948) 1 All E R 780). I Similarly, exercise of power by the administrative, agent for a collateral purpose, that is, purposes extraneous to the one responsible for the conferment of the power oil him, would be struck down by superior Courts as being fraud upon power. All mala fide exercise of power is in the theory of law to be construed as an aspect of the doctrine of ultra vires if only because all constituted authorities are conferred the authority to act subject to the pre‑supposition that the power conferred will be honestly exercised for the purpose for which it has been ,granted (See Sydney Municipal Council v. Campbell((1947) 2 All E R 680). Similarly, the exercise of power by the administrative agent will be condemned as having been invalidly exercised if it be shown that considerations responsible for taking a particular decision are either irrelevant for the purpose or that considerations which are declared to be relevant by law have not been taken into account by the administrative agent. (See Associated Provincial Picture House Ltd. v. Wedesbury Corporation (1925 A C 338). Violation by an administrative tribunal of principles of natural justice during the course of the exercise of its jurisdiction has invariably been held by the superior Courts to vitiate the order passed by a tribunal. The irreducible minimum requirement of the doctrine of natural justice is that a person about to be affected by the decision has a right to a fair hearing by a tribunal which can be regarded as unbiassed. In considering whether the proceedings of an inferior tribunal, in respect of which a writ of certiorari would lie, should be quashed, the principal ques tion that arises is whether the principles of natural justice in the determination of the question before it have been followed by the tribunal. Here the superior Court is not concerned so much with notions of abstract justice as to see that certain well known forms of `judicial' as distinguished from `Court' procedure are followed by inferior tribunals. It is not necessary that the proceedings must be conducted in accordance with the procedure known to ordinary Courts ' of law: if the Act itself prescribes the procedure which a tribunal is required to follow, it would be enough if those formalities prescribed by the Act are observed. But if these are not expressly provided for, the statute would be construed as silently implying the imposition of such a duty upon the tribunal and it would be a valid objection to the proceedings taken before it to show that the principles of natural justice have not been followed. The speech of Lord Shaw in the famous case of Local Government Board v. Arlidges (1915 A C 120) contains a discourse on `natural justice' as a term having a vanishing and shadowy texture'. "The words `natural justice"' said he "occur in arguments and sometimes in judicial pronouncements in such cases. When a central administrative board deals with an appeal from a local authority it must do its best to act justly, and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance, it must still act honestly and by honest means. In regard to these, certain ways and methods of judicial procedure may very likely be imitated; and lawyer‑like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation, and the assumption that the methods of natural justice are ex necessitae those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure of forms of pleading. In so far as the term `natural justice' means that a result or process should be just, it is harmless though it may be a high‑sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted trans fer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it. is vacuous." The doctrine of natural justice in England, like the fickle‑minded dame, the English weather, seems to be dominated by some imponderable element; its limits have been perpetually shifting and its application seems to vary not so much with the much maligned foot of the Chancellor as with the inclemencies of economic‑political climate that come to surround its existence from time to time. The following statement may, however, be regarded as representing the best that can be said of the doctrine of natural justice in England. "Whether the standard be `natural justice' or 'substantial justice' " remarks a recent writer, "or what is reasonable and fair, matters very little, so long as the Courts are watchful that individual rights are not trampled upon by the unfettered and arbitrary exercise of powers, and that a man should not be deprived of his livelihood without recourse to a proceeding before an independent tribunal bearing some recognisable resemblance to the proceedings of the ordinary Courts." (See Natural Justice in English Law by G. W. Keeton in Current Legal Problems 1955 at p. 24; also Wade H. W. R. on 'Twilight of Natural Justice' 1951, 67 L Q R 103). In the recent case of Ridge v. Baldwin,( (1963) 2 All E R 66) the House of Lords in England has imposed a new complexion upon the mercurial face of the muse of natural justice and has inaugurated a new era in the administration of public law in England. All the previous authorities upon the subject of 'rules of natural justice', have been reviewed in this case and now lie over‑shadowed by a firm declaration that an officer cannot be lawfully dismissed without telling him what is alleged against him and hearing his explanation in defence, and in so far as a result may be reached in the absence of such a hearing, the decision would be void. The application of the doctrine of "natural justice" so widely interpreted as is reflected in the decision in Ridge v. Baldwin, is now indistinguishable from the way in which due process clause is applied for the review of administrative action in the U. S. A. Many jurists have regarded the existence of the interest or bias as affecting the very constitution of the tribunal. So viewed, it has been invariably regarded'/ as amounting to a defect in jurisdiction. In the famous case of Frome United Breweries v. Bath Justices (1926 A C 586), Viscount Cave L. C. observed: "If there is one principle which forms the integral part of English Law it is that every member of a body engaged in judicial proceedings must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to abias (whether financial or other) in favour of or against either party to a dispute, or he is in such a position that a bias must be assumed, he ought not to take part in the decision or even sit upon the tribunal. This rule has been asserted not only in the case of the Court of Justice and other judicial tribunals but in the case of authorities which though in no case could be called Courts, have to act as judges of the right of others." Some text book writers and decided cases, on the other hand, lay down that the requirement as to the absence of bias, flows from an over‑all duty of a judicial tribunal to follow the rules of natural justice. It is plainly opposed to the principles of natural justice that a person can be a judge in his own cause or be identified with the interest of one of the parties to the cause he is trying. This view is based upon somewhat controversial position in law that bias does not make the determination of the tribunal necessarily void but only voidable so that there can be a waiver by the party with respect to it. The better view however is to regard bias as materially affecting the jurisdiction of the tribunal to determine the matter. The expression `excess of jurisdiction' is somewhat ambiguously used and apparently even the violation of rules of natural justice can be regarded and has been regarded as a form of excess of jurisdiction. Normally, the expres sion 'excess of jurisdiction' should be reserved for cases where a tribunal having competently entered upon a permissible field of inquiry goes beyond its authority and trespasses into fields that are beyond its competence to enter. If the problem posed by such a situation be viewed from the stand point of the result reached, the extent to which a tribunal has clutched at a jurisdiction to dispose of a subject‑matter not within its competence, would appear, with reference to the part of determination which is beyond its juris diction, to be the r; suit of the tribunal having acted in excess of its jurisdic tion. In an Indian case reported in A I R (1952) All. 61, we have the case of a Commissioner who was competent to cancel the licence of a dealer and to that extent it could be said that when he set out to exercise his power to cancel the licence he was really acting within the scope of his authority; but, never theless, the High Court of Allahabad quashed his order, because despite the requirements of the law to give reasons for cancelling a licence, the Com missioner had failed to give any reason whatever. If he had given reasons, the Court would hardly have concerned itself with the sufficiency of those reasons‑but on finding that he had not given any reason, the High Court quashed the order. Now was this excess of jurisdiction, or power, because, having acted contrary to the statutory mandate to furnish reasons, the Commissioner, in fact, acted in the exercise of his professed power arbitrarily, and failed to observe the law in the course of the exercise of his authority to cancel licence‑or, again, is it a case of 'defect of jurisdiction' upon the view that the law had empowered him to cancel the licence only upon assign ing reasons, and this condition not having been complied with by the Commissioner, he was really acting outside the scope of his authority? How the situation in particular would be viewed would depend upon the approach to the `problem of jurisdiction' by the Court. It is difficult to draw precisely the boundary line between `absence' or `excess' of jurisdiction, or `violation of the principles of natural justice' or `the making of error in the course of the exercise, of jurisdiction which is apparent on the face of the record'. The question each time is: Has the jurisdiction been exceeded‑abuse of power, violation of principles of natural justice, if made out could be regarded as condemning the result reached as being due to excess of jurisdiction in that there is no jurisdiction to act dishonestly or in defiance of the principles of natural justice. BOOK REVIEW "A Referencer to Civil Cases (1949 to 1965)" by Hussain Bakhsh, B.A., LL. B., Advocate, Wah Cantt., pages 148; printed at the Ilmi Printing Press, Lahore; to be had from the Law Book House, 1, Katchery Road, Lahore. Price Rs. 10. The publication is a vade mecum on "How to find and where to find Law". It is an index or a referencer, as the author calls it, and gives brief outlines or hints of the cases decided by the superior Courts of Pakistan during the period 1949‑1965. The author, who had sometime been an Assistant Editor of the Indian cases, has given his notes very carefully and in an intelligent manner and in a few words drives the reader at the ratio decidendi of the case. As such the book may be of great service to the busy practitioner when necessity is felt of picking out a law without loss of time. The junior members of the profession may also be equally benefitted by this handy and moderately priced book. The references to Law Reports, though not specifically mentioned, relate to P L D. The paper used in the book is tough, printing neat, and the get‑up good.