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The Power of Judicial Review

It is of American origin. Judicial Review is the authority of the judiciary to interpret the constitution and invalidate any law or order from the legislature and executive if it contradicts the Constitution of India.

In India, the power to conduct Judicial Review lies with the Supreme Court and High Courts. This process involves assessing government actions that conflict with the Constitution and invalidating them if necessary. The authority for this is explicitly granted by various articles within the Constitution, such as Articles 13, 32, 131 through 136, 143, 226, and 246.

The Supreme Court further emphasized and clarified the importance of Judicial Review in its landmark decision in the case of Indira Nehru Gandhi v. Raj Narain (1975). In this case, a panel of five judges affirmed that effective judicial review is a fundamental aspect of the Constitution's basic structure and a critical mechanism for upholding the Rule of Law.

Through the power of Judicial Review:

  1. The court examines the laws and rules established by the legislature and executive branches when they hear cases in court.
  2. The court holds the power to assess the constitutionality of government laws and regulations.
  3. If a law or part of it is found to be unconstitutional, the court has the authority to reject it.

Characteristics of Judicial Review in India

  1. The power of Judicial Review is exercised by both the Supreme Court and High Courts. However, it is ultimately the Supreme Court of India that holds the final authority to determine the constitutionality of any law.
  2. Judicial Review applies to both Central and State laws, as well as executive orders and ordinances. It also extends to constitutional amendments.
  3. The laws included in the 9th Schedule of the Constitution are not subject to Judicial Review.
  4. Judicial Review only applies to legal questions and cannot be used for political matters.
  5. The power of Judicial Review is not actively utilized by the Supreme Court on its own. It can only exercise this power when a specific law or rule is challenged before it, either as part of a case being heard or when the validity of a law is disputed during the proceedings.
  6. The Supreme Court can decide:
    1. If the law is deemed constitutionally valid, it will continue to be enforced as it has been.
    2. If the law is ruled constitutionally invalid, it will no longer be in effect starting from the date of judgment.
    3. If only certain parts of a law are determined to be invalid, those specific parts become ineffective while the remaining parts still hold power. However, if the invalidated parts are crucial to the functionality of the law as a whole, then the entire law is deemed invalid and void.
  7. When a law is deemed unconstitutional and rejected, it immediately becomes non-operative from the date of the judgment. However, any action taken based on that law before the judgment remains valid.
  8. In India, the principle of 'Procedure Established by Law' governs Judicial Review. This means that the court examines whether a law has been made within the powers granted by the Constitution to the law-making body and follows the prescribed procedure. If a law is found to be in violation of this established procedure, it is rejected.
  9. When the Supreme Court declares a law unconstitutional, it must provide a specific explanation of how the law violates provisions within the Constitution. The court also needs to clearly demonstrate why the law or any of its components are invalid.

Views of Critics of Judicial Review:

  1. Critics argue that judicial review is an undemocratic process because it allows the court to make decisions about laws passed by the legislature, which are meant to represent the will of the people.
  2. The system of Judicial Review in India is not explicitly defined in the Constitution. Instead, it is established based on various articles within the Constitution.
  3. When the Supreme Court declares a law unconstitutional, the decision takes effect immediately upon delivery of the judgment. However, Judicial Review of a law can only occur when a case before the Supreme Court raises a question about its constitutionality.

    A case challenging the constitutionality of a law can reach the Supreme Court several years after the law has been enforced. When the court ultimately declares it unconstitutional, this can create administrative difficulties. In some instances, a decision made during judicial review may end up causing more issues than it resolves.
  4. Many critics view the Judicial review system as a conservative and reactionary system. They argue that when deciding on the constitutionality of a law, the Supreme Court often takes a legalistic and traditional approach that can result in the rejection of progressive legislation passed by the legislature.
  5. One issue that contributes to delays and inefficiencies in the legal system is Judicial Review. In some cases, both the public and law enforcement agencies may intentionally slow down or wait for the Supreme Court to decide on the constitutionality of a law before taking action. This cautious approach can cause implementation of laws to be delayed.
  6. Critics argue that Judicial review can lead to an irresponsible Parliament, as it may rely on the Supreme Court to determine the constitutionality or reasonableness of its own laws.
  7. In a Judicial Review case, a bench consisting of either 3, 5, or 9 judges from the Supreme Court is responsible for making decisions. These decisions are reached through a simple majority vote. Surprisingly, the fate of a law can sometimes rely on the reasoning of just one judge. This means that a single judge's opinion can ultimately determine whether a law passed by elected representatives will stand or be deemed invalid.
  8. Over the years, the Supreme Court has been known to reverse its own decisions on multiple occasions. For instance, in the Golaknath case, the Court overturned previous judgments. Furthermore, in the Keshavananda Bharati case, it reversed its judgment from Golaknath. A striking example of this is when an enactment was deemed valid, later declared invalid, and then once again validated. These reversals serve as a reminder of the subjective nature inherent in judicial judgments.

Arguments in favour of Judicial Review

Many supporters of Judicial review strongly disagree with the criticisms raised against it. They believe that Judicial review is a crucial and valuable system for India's liberal democratic and federal structure. It plays an important and beneficial role in safeguarding and advancing the Constitution.
  • Judicial review plays a vital role in upholding the supremacy of the Constitution.
  • It serves as a necessary check on potential abuses of power by the legislature and executive branches.
  • Judicial Review acts as a safeguard for protecting individual rights.
  • The judiciary acts as an impartial referee, maintaining a balance between the central government and state authorities in federal systems. Its significance cannot be overlooked or denied.
  • Granting Judicial Review power to the judiciary is crucial for strengthening their position and ensuring judicial independence.
  • The power of Judicial Review has been instrumental in enabling the Supreme Court of India to fulfill its constitutional responsibilities.

Judicial review is a fundamental aspect of a fair and accountable legal system. It grants the courts the authority to evaluate government actions and ensure they align with principles of justice, fairness, and the constitution. By analysing government decisions, judicial review acts as a safeguard against potential abuses of power, upholds the rule of law, and protects individual rights and liberties. This crucial process allows the judiciary to balance governmental powers, preserve the integrity of the legal system, and promote a society where all individuals' rights are respected and upheld.

  • Interpretation of Statutes, P. Krishnaswamy, Asia Law House

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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