Judicial review originated in the United States but is now accepted as one of the basic and essential feature of our Constitution and no law passed by the parliament in exercise of its constitutional power can abrogate it or take it away. The power of judicial review over legislative action vested in the High Courts and the Apex Court under Article 226 and 32 respectively is an integral part and essential feature of the Constitution.
MEANING OF JUDICIAL REVIEW
Judicial Review is a power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the central and state governments.
It is the power of the court to consider the constitutionality of acts of organs of government and declares it unconstitutional if it violates or is inconsistent with the basic principles of the constitution.
Suo Moto cases and the public interest litigation, with the discontinuation of the principle of Locus Standi, have allowed the judiciary to intervene in many public issues, even when there is no complaint from the aggrieved party.
JUDICIAL REVIEW SERVES THE FOLLOWING PURPOSES:
- Upholding the Constitution
- Protecting individuals
- Interpretation of statutes
- Establishing general legal principles
- Structuring deliberative and administrative processes
- Nurturing core values of good governance
- Encouraging fruitful and effective Public Interest Litigations (PILs)
- Elaboration and vindication of fundamental rights
SCOPE OF JUDICIAL REVIEW
The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court or in the High Courts on the following three grounds:
- It infringes the fundamental rights (part III)
- It is outside the competence of the authority which has framed it, and
- It is repugnant to the constitutional provisions.
IMPORTANCE OF JUDICIAL REVIEW:
- It is essential for maintaining the supremacy of the Constitution and checking the possible misuse of power by the legislature and executive.
- It protects the rights of the people.
- It maintains the federal balance.
- It is essential for securing the independence of the judiciary.
- It prevents tyranny of executives.
CLASSIFICATION OF JUDICIAL REVIEW
- Review of legislative actions:
This review implies the power to ensure that laws passed by the legislative are in compliance with the provisions of the constitution.
- Review of Administrative Actions:
This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.
- Review of judicial decisions:
This review is used to correct or make any change in previous decisions by the judiciary itself.
In India constitutional the phrase i.e. judicial review has not been used but the provisions of several Articles explicitly confer the power of judicial review on the Supreme Court and the high court.
The provisions are explained below:
- Article 13 declares that all laws that are inconsistent with or in derogation of the fundamental rights shall be null and void.
- Article 32 guarantees the rights to move the Supreme Court for the enforcement of the fundamental rights and empowers the Supreme Court to issue directions or orders or writ for that purpose.
- Article 131 provides for the original jurisdiction of the Supreme Court in center-state and inter-state disputes.
- Article 132 provides Appellate jurisdiction of the Supreme Court in constitutional cases.
- Article 133 provides for the Appellate jurisdiction of the Supreme Court in civil cases.
- Article 134 provides for the Appellate jurisdiction of the Supreme Court in criminal cases.
- Article 134-A deals with the certificate for an appeal to the Supreme Court from the high courts
- Article 135 empowers the Supreme Court to exercise the jurisdiction and powers of the federal court under any pre-constitution law.
- Article 136 authorizes the Supreme Court to grant special leave to appeal from any court or Tribunal (except military tribunal and court-martial).
- Article 143 authorizes the president to seek the opinion of the Supreme Court on any question of Law o fact and on any pre-constitution legal matters.
- Article 226 empowers the high court to issue direction or order or writs for the enforcement of the fundamental right and for any other purpose.
- Article 227 vests in the high courts the power of superintendence over all courts and Tribunals within their respective territorial judicial (Except military courts or tribunal)
- Article 245 deals with the territorial extend of law made by parliament and by the legislature of states
- Article 246 deals with the subject matters of law made by parliament and by the legislatures of state (i.e. Union List, State List, and Concurrent List).
- Article 251 & 254 provide that in case of a conflict between the central law and state law, the central law prevails over the state law and the state law shall be void.
- Article 372 deals with the continuance enforce of the pre-constitutions law.
PROBLEMS WITH JUDICIAL REVIEW:
- It limits the functioning of the government.
- It violates the limit of power set to be exercised by the constitution when it overrides any existing law.
- In India, a separation of functions rather than of powers is followed.
- The concept of separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.
- The judicial opinions of the judges once taken for any case become the standard for ruling other cases.
- Judicial review can harm the public at large as the judgment may be influenced by personal or selfish motives.
- Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.
CASES RELATED TO JUDICIAL REVIEW
GOLAKNATH V. STATE OF PUNJAB
The court held that the parliament could not amend the constitution to take away the rights provided in Part III of the constitution. This resulted in the 24th amendment (1971) of the constitutional powers of the parliament are not restricted.
KESAVANAND BHARTI V. STATE OF KERALA
The controversy of the above case was rested in this case, where the court though agreeing that the parliament is not restricted to amend the constitution, but also, put a caveat of the doctrine of the basic structure. The court observed that the constitutional amendments are to be done keeping in mind the basic structure of the constitution.
Judicial review is an important power vested in the honourable courts and apart from some reasonable restrictions necessary to maintain the balance of power, this right cannot be take away considering that it is the backbone of a democratic and progressive society.
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