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Judicial Review

Judicial review is originated in the USA. It was propounded for the first time in the famous case of Marbury v. Madison 1803 by John Marshall, the chief justice of American Supreme court.
In India, on the other hand, the constitution itself confers the power of judicial review on the judiciary (both the Supreme Court and high court).

It canít be curtailed or excluded even by a constitutional amendment, because Supreme Court has declared that the power of judicial review as a basic feature of the constitution.[1]

Meaning Of Judicial Review

it 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.

It means the power of the legislature to make laws is not absolute, because the validity and constitutionality of such laws are subject to review by the courts.

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.[2]

Example

Golaknath Case 1967

The questions, in this case, were whether an amendment is a law; and whether fundamental rights can be amended or not. Supreme Court contented that fundamental rights are not amenable to the parliamentary restriction as stated in Article 13 and that to amend the fundamental rights a new constituent assembly would be required. Also stated that Article 368 gives the procedure to amend the constitution but does not confer on parliament the power to amend the constitution.

In 2015 the supreme court declared both the 99th constitutional amendment, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 as unconstitutional and null and void.

Justice Syed Shah Mohamed Quadri has classified the judicial review into the following three categories.[3]

  1. Judicial review of constitutional amendments.
  2. Judicial review of legislation of the parliament and state legislatures and subordinate legislation.
  3. Judicial review od administrative action of the Union and state and authorities under the state.

Constitutional Provisions

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;[4]
  1. Article 13 declares that all laws that are inconsistent with or in derogation of the fundamental rights shall be null and void.
  2. 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.
  3. Article 131 provides for the original jurisdiction of the Supreme Court in center-state and inter-state disputes.
  4. Article 132 provides Appellate jurisdiction of the Supreme Court in constitutional cases.
  5. Article 133 provides for the Appellate jurisdiction of the Supreme Court in civil cases.
  6. Article 134 provides for the Appellate jurisdiction of the Supreme Court in criminal cases.
  7. Article 134-A deals with the certificate for an appeal to the Supreme Court from the high courts
  8. Article 135 empowers the Supreme Court to exercise the jurisdiction and powers of the federal court under any pre-constitution law.
  9. Article 136 authorizes the Supreme Court to grant special leave to appeal from any court or Tribunal (except military tribunal and court-martial).
  10. 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.
  11. 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.
  12. 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)
  13. Article 245 deals with the territorial extend of law made by parliament and by the legislature of states
  14. 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).
  15. 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.
  16. Article 372 deals with the continuance enforce of the pre-constitutions law.

Judicial Review And Constitution

According to Article 13(2), the union or the state shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall to the extent of the contravention be void;
  1. Judicial review is called upon to ensure and protect fundamental rights which are guaranteed in part III of the constitution.
  2. The power of the Supreme Court of India to enforce these rights is driven from Article 32 of the constitution. This provides citizens the right to directly approach the Supreme Court to seek remedies against the violation of fundamental rights.[5]

Importance Of Judicial Review

Judicial review is needed for the following reasons:
  1. To uphold the principle of the supremacy of the constitution;
    In India it is the constitution that is supreme and that a statute law to be valid must be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not[6].

    The constitution is Supreme lex, the permanent law of the land, and there is no branch of government above it. Every organ of government, be it the executive or the legislature of the Judiciary, derives its authority from the constitution and it has to act within the limits of its authority.[7]

  2. To maintain federal equilibrium;
    The founding fathers very wisely, therefore. Incorporated in the constitution itself the provisions of judicial review so as to maintain the balance of federalism, to protect the fundamental rights and fundamental freedoms guaranteed to the citizens and to afford a useful weapon for availability, availment and enjoyment of equity, liberty and fundamental freedom and to help to create a healthy nationalism.[8]

  3. To protect the fundamental rights of the citizens;
    As long as fundamental rights exist and are a part of the constitution, the power of judicial review has also to be exercised with a view to see that the guarantees by these rights are not contravened.[9]

    It is the function of the judges, may their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled.[10]

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:
  1. It infringes the fundamental rights (part III)
  2. It is outside the competence of the authority which has framed it, and
  3. It is repugnant to the constitutional provisions.

The scope of judicial review in India is narrower than the USA, because of following reason:
  1. USA judicial review based on due process of law, whereas India judicial review is based on procedural established by law
  2. Due process of law can declare laws violative of these rights void not only on substantive grounds of being unlawful, but also on procedural grounds of being unreasonable. Indian Supreme Court while determining the constitutionality of law, however, examine only the substantive question i.e., whether the law is within the powers of the authority concerned or not.

Classification Of Judicial Review

We can classify judicial review into three categories:
  1. 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.

  2. Review of Administrative Actions:
    This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.

  3. Review of judicial decisions:
    This is seen in the Golakhnath case, Bank Nationalisation case, Minerva Mills case , Privy Purse abolition case, etc.[11]

Limitation Of Judicial Review

There are some limitations on the judiciary on exercising its power of judicial review. In fact, when the judiciary crosses its threshold and interferes in the executives mandate, it can be called judicial Activism, which when furthered can lead to judicial overreach. Some of the limitations of judicial review are:
  • It is only permissible to the extent of finding if the procedure in reaching the decision has been correctly followed but not the decision itself.
  • It is designated only to the higher courts like Supreme Court and High Courts.
  • The judiciary canít interfere in political questions and polity matters unless absolutely necessary.

Cases Related To Judicial Review

Marbury v. Madison [12]

In this case Supreme Court for the first time struck down an act of congress an unconstitutional. This decision created the doctrine of judicial review and set up the Supreme Court of the US as chief interpreted of the constitutions.

Though the justice agreed that William Marbury had a right to his job, they also ruled that issuing the writ of mandamus to the force that to happen did not fall under their jurisdiction as stated in the constitution.

Though Marbury was entitled to it, the court was unable to grant it because section 13 of the judiciary Act, of1789 conflicted with Article III section 2 of the US constitution and was therefore null and void.

Golaknath v. State of Punjab[13]

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[14]

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.

Shankari Prasad v. Union of India[15]

It was held by six judge bench. Five judges did not agree to amend the essential rights under the Indian constitution. However, in the case of Keshvananda Bharti v. State of Kerala where six judges out of seven judges held that parliament modifying influence has and at all portion of the constitution can be amended and overruled the Golaknath case. The Supreme Court held that the essential rights canít be modified in such a method, which will touch the elementary construction of the constitution.

Minerva Mills v. Union of India[16]

In this case the court further observed that the tool of the amendment of the constitution canít be used to destroy the constitution itself.

And declared that it was well settled that judicial review was a basic and essential feature of the constitution. If the power of judicial review was absolutely taken away, the constitution would cease to be what it was.

Conclusion
At the end, I would like to conclude that while the court's jurisdiction as a soldier to protect and advance the fundamental rights merits load affirmation, the court, however, should not be seen as dismissive or disdainful of the processes of democratic governance.

In my opinion, the supreme court of India should also follow the Due process of law, so that it may examine the law not only on substantive grounds of being unlawful but also on procedural grounds of being unreasonable.

The presumption that the legislature understands the needs of its people and that even its discrimination and classification are based on adequate grounds has also been acknowledged by the Supreme Court itself.

The challenge, therefore, is to find the delicate balance between the three organs which natures and invigorates institutions designed to serve the ideals of a true republic.

End-Notes:
  1. Indira Nehru Gandhi v. Raj Narain AIR 1975
  2. Judicial review available at; https://byjus.com (visited on 28, July )
  3. M. Laxmikant,Indian Polity Pg.No (27.1), MC Graw Hill Education, 5th edition 2017
  4. abid
  5. Judicial review, available at; https//byjus.com(visited on 26 July 2020)
  6. A.K Gopalan v. State of Madeas Air 1950
  7. Rajsthan v. Union of India AIR 1977
  8. S.S Bola v. B.D. Sharma AIR 1997
  9. Kesavananda Bharti v. State of Kerala AIR 1973
  10. L. Chandra Kumar v. Union of India AIR 1997
  11. Judicial review available at: https://byjus.com (visited on 28 July 2020)
  12. 1803
  13. AIR 1967 SC 1643
  14. AIR 1973SC 1416
  15. AIR 1951 SC 458
  16. AIR 1980 SC 1789

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