Nov 23, 2017
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Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India.

The Constitution of India is the supreme law of the land. The Supreme Court of India has the supreme responsibility of interpreting and protecting it. It also acts as the guardian-protector of the Fundamental Rights of the people. For this purpose, the Supreme Court exercises the power of determining the constitutional validity of all laws.

It has the power to reject any law or any of its part which is found to be un­constitutional. This power of the Supreme Court is called the Judicial Review power. State High Courts also exercise this power but their judgements can be rejected or modified or upheld by the Supreme Court.

(I) Judicial Review: Meaning and Definition:

Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India.

Judicial Review is the power of the Judiciary by which:

(i) The court reviews the laws and rules of the legislature and executive in cases that come before them; in litigation cases.

(ii) The court determines the constitutional validity of the laws and rules of the government; and

(iii) The court rejects that law or any of its part which is found to be unconstitutional or against the Constitution.

(II) Features of Judicial Review in India:

1. Judicial Review Power is used by both the Supreme Court and High Courts:

Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final power to determine the constitutional validity of any law is in the hands of the Supreme Court of India.

2. Judicial Review of both Central and State Laws:

Judicial Review can be conducted in respect of all Central and State laws, the orders and ordinances of the executives and constitutional amendments.

3. A Limitations:

Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of the Constitution.

4. It covers laws and not political issues:

Judicial Review applies only to the questions of law. It cannot be exercised in respect of political issues.

5. Judicial Review is not automatic:

The Supreme Court does not use the power of judicial review of its own. It can use it only when any law or rule is specifically challenged before it or when during the course of hearing a case the validity of any law is challenged before it.

6. Decisions’ in Judicial Review Cases:

The Supreme Court can decide:

(i) The law is constitutionally valid. In this case the law continues to operate as before, or

(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from the date of the judgment.

(iii) Only some parts or a part of the law is invalid.

In this case only invalid parts or part becomes non-operative and other parts continue to remain in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot operate without it, then the whole of the law gets rejected.

7. Judicial Review Decision gets implemented from the date of Judgement:

When a law gets rejected as unconstitutional it ceases to operate from the date of the judgment. All activities performed on the basis of the law before the date of the judgment declaring it invalid, continue to remain valid.

8. Principle of Procedure established by Law:

Judicial Review in India is governed by the principle: ‘Procedure Established by Law’. Under it the court conducts one test, i.e., whether the law has been made in accordance with the powers granted by the Constitution to the law-making body and follows the prescribed procedure or not. It gets rejected when it is held to be violative of procedure established by law.

9. Clarification of Provisions which a rejected law violates:

While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the constitution which it violates. The court has to clearly establish the invalidity of the concerned law or any of its part.

(III) Critical Evaluation of Judicial Review:

Points of criticism:

1. Undemocratic:

The critics describe Judicial Review as an undemocratic system. It empowers the court to decide the fate of the laws passed by the legislature, which represent the sovereign, will of the people.

2. Lack of Clarity:

The Constitution of India does not clearly describe the system of Judicial Review. It rests upon the basis of several articles of the Constitution.

3. Source of from Administrative Problems:

When a law is struck down by the Supreme Court as unconstitutional, the decision becomes effective from the date on which the judgement is delivered. Now a law can face Judicial Review only when a question of its constitutionality arises in any case being heard by the Supreme Court.

Such a case can come before the Supreme Court after 5 or 10 or more years after the enforcement of that law. As such when the Court rejects it as unconstitutional, it creates administrative problems. A Judicial Review decision can create more problems than it solves.

4. Reactionary:

Several critics regard the Judicial Review system as a reactionary system. They hold that while determining the constitutional validity of a law, the Supreme Court often adopts a legalistic and conservative approach. It can reject progressive laws enacted by the legislature.

5. Delaying System:

Judicial Review is a source of delay and inefficiency. The people in general and the law-enforcing agencies in particular sometimes decide to go slow or keep their fingers crossed in respect of the implementation of a law. They prefer to wait and let the Supreme Court first decide its constitutional validity in a case that may come before it at any time.

6. Tends to make the Parliament less responsible:

The critics further argue that the Judicial Review can make the Parliament irresponsible as it can decide to depend upon the Supreme Court for determining the constitutionality/ reasonableness of a law passed by it.

7. Fear of Judicial Tyranny:

A bench (3 or 5 or 9 judges) of the Supreme Court hears a judicial review case. It gives a decision by a simple majority. Very often, the fate of a law is determined by the majority of a single judge. In this way a single judge’s reasoning can determine the fate of a law which had been passed by a majority of the elected representatives of the sovereign people.

8. Reversal of its own decisions by the Supreme Court:

It is on record that on several occasions the Supreme Court reversed its earlier decisions. The judgment in the Golaknath case reversed the earlier judgments and the judgment in the Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment was held valid, then invalid and then again valid. Such reversals reflect the element of subjectivity in the judgments.

On all these grounds the critics strongly criticise the system of Judicial Review as it operates in India.

(IV) Justification of Judicial Review:

A very large number of the supporters of Judicial Review do not accept the arguments of the critics. They argue that Judicial Review is an essential and very useful system for Indian liberal democratic and federal system. It has been playing an important and desired role in the protection and development of the Constitution.

(1) Judicial Review is essential for maintaining the supremacy of the Constitution.

(2) It is essential for checking the possible misuse of power by the legislature and executive.

(3) Its a device for protecting the rights of the people.

(4) No one can deny the importance of judiciary as an umpire, or as an arbiter between the centre and states for maintaining the federal balance.

(5) The grant of JR power to the judiciary is also essential for strengthening the position of judiciary. It is also essential for securing the independence of judiciary.

(6) The power of Judicial Review has helped the Supreme Court of India in exercising its constitutional duties.

(7) The possibility of abuse of is power of by the Judiciary is very less because several checks have been in existence:

(a) Lack of a clear statement of this power in any article of the Constitution.

(b) Judicial Review is not possible on some laws. The Parliament can place laws aimed at securing socio-economic reforms in the 9th Schedule of the Constitution. This makes these immune from Judicial Review.

(c) The scope of Judicial Review stand limited to only legal and constitutional cases.

(d) The Supreme Court is itself bound by the Constitution of India and the Parliament can amend the Constitution.

(e) The grant of specific fundamental rights to the also limits the scope of Judicial Review.

(f) The Parliament can pass laws and amendments for overriding the hurdles created by Judicial Review.

These limitations can prevent a possible misuse of Judicial Review power by the Courts.

A formidable fact which justifies the presence and continuance of the Judicial Review has been the judiciousness with which it is being used by the Supreme Court and High Courts for carrying out their constitutional obligations. These have used it with restraint and without creating hindrances in the way of essential socio-economic reforms.

Article Categories:
Constitutional Law

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