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Government by Judiciary- Judicial Review

Abstract:

The constitution is the supreme law. The laws are supposed to comply with the principles of the constitution as otherwise they are held to be unconstitutional and invalid. The judiciary checks whether or not the laws adhere to the principles of the constitution. Judicial Review is the process to which legislative and executive actions are subjected. The courts that are granted the authority of judicial review can invalidate those acts and laws by the government that is not compatible with the higher authorities. Executive actions can be held invalid as if they violate the constitutional statutes and provisions thereof. In general, when there are any rules made it is necessary to review them to measure their effectiveness. The prime reason is to review if the law was applied correctly and the procedures were followed. The Judicial review evolved to safeguard the legality of Part III of the constitution to examine the public interest. The constitution has given authority to the High Court and Supreme Court to examine the legitimacy of the administrative actions and legislative statutes. The provision of judicial review of High Court is mentioned under Article 226 and 227 of the Constitution and that of Supreme Court is mentioned under Article 32 and 136.

History:

The judicial review is believed to have begun with the statement or proclamation by John Marshall of the USA, in the case Marbury V Madison1 where the supreme court had power to invalidate the legislation enacted by the parliament.

In France, the law is reviewed before it takes effect and even without a suit against it in the court. In few countries such as France, Germany and New Zealand only certain courts have the authority of judicial review but in the USA all courts have the authority to hold a  law unconstitutional. Post World War II many countries adopted judicial review. The idea of checks and balances and its importance in a democratic country was influenced. But an irony to this fact is that in the  United States, the constitution does not mention this practice. In the 21st century, there are more than 200 countries that have implemented and incorporated judicial review in their system.

Judicial Review and Article 13 of the Indian Constitution:

Article 13 of the constitution states that all laws in force in the territory of India immediately before the commencement of the constitution shall be void, provided that the state shall not make any law which takes away or abridges the rights conferred by this part, and law made in contravention to this clause shall be void. Judicial Review in light of Article 13 provides for the review of every retrospective and prospective legislation in India. By virtue of the power conferred upon the High Courts and the Supreme Courts under Article 226 and Article 32 of the constitution respectively, they can examine and review the actions of the legislature and executive and can declare them unconstitutional if they are inconsistent with Part III of the Constitution. The court can take actions using judicial review which can be a threat to fundamental rights. The judicial review plays a very significant role to ensure that there is a democracy, accountability in governance and public order.

Importance of Judiciary:

As we know that in India, we have 3 organs namely legislative, executive, and judiciary which have equal importance in the policy. But being a democratic country, the judiciary plays a much important role as its main function is based on public interest. There are many countries that have included judicial review as a part of their constitution. Countries like Australia and Canada have judicial review process followed since it is a mandate of the constitution. In India, every organ has power and is accountable if it acts in an unconstitutional manner. The Judiciary acts as an armor to the constitution as it rectifies the unwarranted actions of the executive and legislature. It also plays an important role in protecting the principles of governance under the Directive Principles of State Policy. The judiciary through this process can examine and study all organs of the government. The judicial review is a tool through which the judiciary can take necessary actions if the laws are inconsistent with the constitution.

In A.K.Gopalan V State of Madras2 , it was observed that it appeared to be a matter of copious caution as of the inclusion of Article 13(1) and (2) of the constitution. Even if there is any deviation or the fundamental right is infringed, then it would be invalid. In the case Re Delhi’s laws act3, the legislature is created by the constitution, and the power to make any changes to subjects is given. But this must be as per the limitations contained in Part III of the constitution as otherwise it could be struck down as unconstitutional by the Judiciary.

In ADM Jabalpur V Shivakant Shukla4 case when the leaders of rival parties were imprisoned, their fundamental rights were suspended. The Supreme court held that, under Article 352 of the constitution, the court cannot protect an individual from state action. But the judicial review gained prominence succeeding Kesavnanda Bharathi5 case, the Supreme court appeared successful by proclaiming its constitutional powers and strengthening its powers of judicial review.

Inference:

Granville Austin quoted in his book” Corner Stone of a Nation” that Judiciary was a longed tool of social change that India did not gain during the colonial time as the British feared the social change. The court would be the guardian of the constitution, and thus an ideal and essential feature of the federal constitution. The judicial review of India has three comprehensive facets – the administrative, judicial, and executive actions. There are few subjects that relate to judicial review; the violation of fundamental rights and other constitutional restrictions; delegation of power by legislative to the executive; and other restrictions and limitations. The doctrine of Judicial review being the basic structure cannot interfere with policy and decision making. They play a role only if the decision made is unconstitutional, unlawful, violative, and does not fall within the implied restrictions and limitations. The Judiciary does not interfere unless the legislative or executive actions involve irrationality or unlawfulness. A well planned and executed policy or decision will not require any interference by the court as it is not necessary for the court to get involved with every administrative and executive action. A sense of security to file their grievances for the public will in turn reduce the burden on courts. Thus, the existence of Judicial Review is vital as it is an inevitable feature inbuilt in the Constitution of India.

Case laws:

  1. U.S.137; 2 L. Ed. 60; 1803 U.S. LEXIS 352

  2. 2.AIR 1950 SC 27

  3. 1951 AIR 332, 1951 SCR 747

  4. AIR 1976 SC 1207

  5. AIR 1973 SC 1461

Vahini Parameshwaran

SASTRA UNIVERSITY

 

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