Judicial Review

Introduction

Judicial review is the power of the court to review or scrutinize the actions of the legislative and the executive and the judicial actions. Judiciary has the power to interpret any law and order made by the legislature and executive and if it is found unconstitutional, then the judiciary can declare any law and order void. The power of the judiciary is to review the constitutional validity of law and an order passed by a legislature and executive known as “judicial review”. High courts and the Supreme Court both have the power of judicial review. Judicial review is part of the basic structure of our constitution. Judicial review is viewed as the power of the court to set up checks and balances between the legislature and executive.

Under the Indian Constitution, parliament is not supreme. We are following the rule of law, which means the constitution is the supreme law. This power is given to the court to examine the actions of the legislature, executive, and administrative arms of government and to ensure the constitutional validity of the law.

Judicial review has two functions;

  • Legitimate government action.
  • The protection of the constitution against the intrusion of the government.

History of judicial review 

The concept of judicial review was first introduced in the United States Supreme Court. American Supreme Court has the power to review the law passed by Congress and executive orders.

In the case, Marbury v. MadisonPresident Adam belonged to the Federalist Party, which came to an end and President Jefferson came to power. On his last day, Adam appointed the judges of the Federalist Party. Jefferson was against this, so Madison, secretary of state, had not sent the appointment letter to judges. Marbury, one of the judges, filed the writ of mandamus in the Supreme Court. Court refused to entertain the plea and opposed the order of the legislature. Then the Congress and the US Supreme Court developed the concept of judicial review. 

In India, judicial review was discussed for the first time in Emperor v. BurahIn this case, the Calcutta high court, as well as the Privy Council, adopted the concept of judicial review in the Indian courts.

Constitutional provisions for judicial review 

The power of judicial review is given in the Constitution. The Constitutional provisions guarantee a judicial review. The Articles are:

  • Article 13(1) – All laws are in force before the commencement of the constitution is void if they abridge the fundamental rights.
  • Article 13(2) – The state shall not make laws which abridge the rights conferred by this part, and if any law made which contravenes this clause shall be void.
  • Article 13(3) –The law includes any ordinance, order, bye-law, regulation, and custom in India; force of law and the law in force includes laws passed by the legislature or competent authority in India which is pre-constitution and not repealed, any such law or any party shall not be operated.
  • Article 13(4)–This article shall not apply to any amendment of the Constitution made under Article 368.
  • Article 32 and 226 –A person can approach the High Court and Supreme Court to violate fundamental rights.
  • Article 251 and 254 –Conflict between the union and state laws, the state law shall be void.
  • Article 245–The legitimacy of legislation can be challenged in the court if the provision of law infringes fundamental rights.
  • Article 131-136–Court has the power to adjudicate disputes between individuals, individuals and state, state and state, state and union; the court is required to interpret provisions of the Constitution and interpretation given by the Supreme Court becomes the law of the land.
  • Article 372 (1) –Judicial review of the pre-constitutional legislation.

Grounds for judicial review 

Constitutional Amendment 

Review of the constitutional amendment done by the authority. All those amendments which are violating fundamental rights are declared void by the Supreme Court.

Administrative Actions 

  • Illegality – The decision-makers have made decisions beyond their power or their acts and decisions are illegal. Their acts and decisions can be illegal if they fail to follow the law.
  • Irrationality –The authority should act properly. It should not be irrational and unreasonable. The court can raise the question if the decision that has been taken by an authority is unreasonable. 
  • Procedural impropriety – This principle is a matter of procedure decision taken by decision-makers. This case should be decided and heard by people to whom it is delegated and not the other persons. The rules are:
  1. Audi alteram partem.
  2. Nemo judex in causa sua.

              Public authorities should act fairly before decision-making. If they act unfairly, it would be an abuse of power.

Judicial pronouncement

Shankar Prasad v. Union of Indian in this case, the zamindars challenged the constitutional validity of the first amendment which is related to land reforms. The ground was a violation of fundamental rights under Article 13(2) of the Constitution. The court held that the amendment made under Article 368 is not a law under Article 13.

Golakh Nath & Ors v. the State of Punjab In this case, the constitutional validity of the 17th amendment was challenged and it was heard by a special bench of 11 judges. The court held that Parliament under Article 368 has no power to abridge the Fundamental Rights. The court observed that Article 368 states the only procedure to be followed making amendments to the Constitution.

After this case, in article 13 clause 4 was included by the 24th amendment of 1971 which States that any amendment made under Article 368 is not a law under Article 13. Marginal note 368 has changed which state “power of Parliament and the procedure to amend the constitution”.

Kesavananda Bharati v. the State of Kerala, in this case, the 24th and 25th amendments were challenged. The court held that the legislature can amend the Constitution but cannot amend the basic structure of the constitution.  The basic structure of the constitution is the supremacy of law, council, and democratic form of government, secularism, separation of power, and federalism.  

Minerva Mills v. Union of India In this case, the court struck down clauses 4 and 5 of article 368 which were inserted by the 42nd amendment. The court held that these clauses destroyed the basic structure of the Constitution. Judicial review has inserted the basic structure of the Constitution.

Conclusion

Judicial review has covered legislature action, executive action, and judicial decision. India has adopted judicial review from American Constitution. The Supreme Court can not apply for judicial review. It can be used when the question of rule of law is challenged in the High Court or either Supreme Court. The concept of judicial review is the basic structure of the Constitution and it has become part of the basic structure in the case of Minerva Mills v. Union of India.  It is used as a check and balance to check the other two organs of government. Judicial review is not an extended power of the judiciary. Excess use of judicial power without checking validity may violate the separation of power.

The article has been written by Prachi Yadav, a 2nd  Year student from Mody  University of Science and Technology, Laxmangarh, Rajasthan.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith, Jaipur.

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