Judicial Review

ABSTRACT

The judiciary is the protector of Fundamental Rights and the guardian of the Constitution. The judiciary has many powers: one of which is Judicial Review. The judiciary protects Fundamental Rights with the help of the Judicial Review. This is the power of which the message is interpreted and protected.

INTRODUCTION

Law plays an important role today. In the social contract theory given by Hobbes, people have given up on their rights and given them protection against the wrong. In the Rule of Law, the law without justice can become arbitrary and can be misused. So, to keep a check and balance on the power of each organ of government we have further adopted judicial review is the process by which the court declares any law which goes against the constitution is void.

The concept of judicial review originated and developed in the USA. It was first propounded in the famous case Marbury V/S Madisons[1]  by John Marshall who was the chief justice of the American Supreme Court.

Judicial review is the court’s power to examine the actions of

• Legislature
• Executive
• Administrative organ of the government

To determine whether such actions are consistent with the constitution & actions judged inconsistent are declared unconstitutional & null and void. In other words, Judicial review may be defined as the court’s power to review the action of the branches of government, especially the court’s power to invalidate legislative and executive action as being unconstitutional.

The judiciary has the power to set aside any law passed by the parliament if it intervenes in the constitution of India. Under Article 13(2) of the constitution of India, any law made by the parliament that abridges the right conferred to the people under Part 3 of the constitution is void ab initio. The power to interpret the constitution of India to its full extent lies within the judiciary. It is the protector of the constitution of India.

Justice Syed Shah Mohamed Quadri has classified the judicial review into three categories:

1. Judicial review of constitutional amendments.
2. Judicial review of legislation of the Parliament and State Legislatures and subordinate Legislations.
3. Judicial review of administrative action of the union and state and authorities under the state.[2]

MEANING

Judicial review is made up of two words JUDICIAL+REVIEW which means “role of judiciary” & “evaluate with analysis”.

In Broad Sense: The power of the court to pronounce upon the constitutionality of legislative acts which come under their normal jurisdiction to enforce them such as they found them unconstitutional and hence void.

ASPECT OR TYPES OF JUDICIAL REVIEW IN INDIA

There are the following aspects or types of judicial review in India:

• Review of Legislative action: The court reviews the constitution and reviews the constitutionality of laws made by the legislature.
• Review of Administrative action: The court reviews the administrative action and examines the fairness justness and reasonableness of administrative action.
• Review of Judicial action: The court reviews its own decision or the decision of its subordinate courts.

CONSTITUTIONAL PROVISIONS

There is no direct and express provision in the constitution empowering the courts to invalidate laws, but some constitutional provisions implicitly point towards judicial review. Such as:

• Article 13: Any law which contravenes fundamental rights shall be void.
• Article 13 (2): further talks about any law made by the parliament after the commencement of the constitution shall be declared null and void by the court.
• Article 32 & 226: The Supreme Court and High Court are the protector and guarantors of the fundamental rights.
• Article 245: Parliament and State Legislature are subject to the constitution.
• Article 251 & 254: In case of inconsistency between union and state laws, the state law shall be void.
• Article 137: The supreme court can review of the pre constitution the legislation.

As the power of the judicial review can be exercised by the Supreme court and High court as well.

 

JUDICIAL PRONOUNCEMENT ON JUDICIAL REVIEW

• Judicial review is one of the basic structures of Indian constitution [ Indira Nehru Gandhi v/s Raj Narain[3]] Judicial review being an integral part and basic structure of our constitution cannot be amended by the parliament under Article 368.
• Judicial review also called the interpretational and observer roles of Indian Judiciary.
• Judicial review falls within the duty of the court in the case of Minerva Mills v/s Union of India[4], it was held that it is the function and duty of the courts to the pronounce upon validity of the law.
• R. Coelho v/s State of Tamil Nadu[5], in this case the Supreme Court affirmed that any certain law which is placed in 9^th schedule (subject after April 1974) will be open to challenge under the judicial review.

 

IMPORTANCE OF JUDICIAL REVIEW

• Judicial review is essential for securing the independence of the Judiciary.
• It protects the rights of the people.
• It works as check on constitutional validity of acts done by legislature and executive.
• It maintains the supremacy of our constitution & also maintains the federal balance.

 

So, depriving the court of its power of judicial review would be tantamount to making Fundamental Right non-enforceable i.e. A mere adornment as they will become right without remedy.

 

PROBLEMS WITH JUDICIAL REVIEW

• people in the It limits the functioning of the government.
• It is a serious challenge toward the doctrine of separation of power.
• Repeated interventions of court can diminish the faith of the integrity, equality & efficiency of the government.

 

EXCEPTION OF JUDICIAL REVIEW

• Foreign policy, economic policies, public policies.
• Laws included in 9^th schedules before 1974.

CASE LAWS

• Kesavananda Bharti v/s State of Kerala[6]

In this case, the 24th and 25th Amendment Act of 1971 was challenged. A judge bench of 13 judges constituted. With the ration of 7: 6 held that:

Power to amend the constitution is to be found in Article 368. It is hard to believe that it lies in residuary power.

• Indira Nehru Gandhi v/s Raj Narain[7]

In this case, the 39th Amendment clause 4 was challenged as it puts a bar to challenge the election of speaker and prime. It was struck down in this case and the court declared it unconstitutional.

• Minerva mills v/s Union of India[8]

In this case, further judicial review was added to the list of basic structure of the constitution along with the balance between Fundamental Rights and Directive Principle.

• R. Coelho v/s state of Tamil Nadu[9]

In this case the court held that any act inserted in Schedule 9 can be judicially scrutinized but only those enactments which are inserted after 24th April 1973.

CONCLUSION

Making law is the function and duty of legislature and it is also the duty of legislature to not go beyond the limits fixed by our constitution. If it crosses such limits and makes law, such laws come under the scrutiny of the of the judiciary.  If the court has reason to believe a law or bill might be unconstitutional it can intervene and exercise its power of judicial review.

 

Written By
Sarita Yadav, Unity University, Lucknow.

 

[1] 1803

[2]  M LAXMIKANTH, INDIAN POLITY (Sixth Revised Edition), published by McGraw Hill Education (India) Private Limited

[3] 1975

[4] 1980

[5] AIR 2007 SC 8617

[6] AIR 1973 SC 1461

[7] AIR 1975 SC 865

[8] AIR 1980 SC 1789

[9] AIR 2008 SC 861