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custodian
of
the
Constitution.
The Supreme Court and the High Courts can exercise this power on two
conditions (1) whether the law or the executive action which has come
under scrutiny falls within the competence of the authority that has
framed it, and (2) whether it is consistent with Part III of the Constitution
dealing
with
the
Fundamental
Rights.
This is an important power of the Supreme Court and the High Courts.
They have been protecting the Constitution from irresponsible laws and
arbitrary use of power by the executive, by exercising this power. Our
Fundamental Rights are also preserved by this power of the judiciary.
The concept of judicial review originated in the United States of America in
the Marbury V.Madison case of 1803. The Chief Justice of the Supreme
Court of America, John Marshall while delivering his judgement in this case
used the famous Due Process of Law clause of the American
Constitution. According to this clause, due means what is just ajnd
proper and law means natural law. Justice Marshall said that as the
Supreme Court had been made the protector of the Constitution and the
rights of the people, so it had to perform its duty and give justice. While
doing so, it would try to determine the exact meaning of law, to expand its
details and apply the general principles of justice, equity and morality. The
process, thus, initiated by justice Marshall has been continuing and the
Supreme Court has been creating some new laws while deciding various
cases. The power of judicial review has made the Supreme Court of
America
one
of
the
strongest
judiciaries
in
the
world.
Conclusion
In many countries with written constitutions, there prevails the doctrine of
judicial review. It means that the constitution is the supreme law of the
land and any law inconsistent therewith is void. In this paper the author is
describing the scope and limits of judicial review.
Judicial review means the reconsideration of a degree or sentence of an
inferior Court, but these days the concept has undergone great changes
and the literal meaning of judicial review is no longer valid. The power to
judicially review any decision is an extraordinary power vested in a
superior court for checking the exercise of power of public authorities,
whether they are constitutional, quasi-judicial or governmental. It is only
available for exercise when a person who is aggrieved by such a decision
brings it before the court.
It is common knowledge that while discharging executive functions, public
authorities take various decisions for which they should be allowed
sufficient space for a proper exercise of discretion. It is keeping this in
mind that, by and large it is only the decision making process that is
actually subjected to judicial review.
Legislature, executive and judiciary under the Constitution are to exercise
powers with checks and balances, but not in water-tight rigid mould. In
India, by basis of Arts. 32 and 136, the Supreme Court can exercise the
power of judicial review. Similarly, under Art. 226 and 227 High Courts
have a power of judicial review. Judicial review in India comprises of three
aspects:
(1)
(2)
Judicial
Judicial
review
review
of
of
legislative
administrative
action,
action,
Patanjali
Shastri
held
that:
as
to its conformity with the Constitution,. If, then, the courts in this
country face up to such important and none too easy task, it is not out of
any desire to tilt at legislative authority in a crusader's spirit, but in
discharge of a duty plainly laid upon them by the Constitution. This is
especially true as regards the 'fundamental rights', as to which this court
has been assigned the role of a sentinel on the qui vive. While the court
naturally attaches great weight to the legislative judgment, it may not
desert its own duty to determine finally the Constitutionality of an
impugned statute.
were inserted in Art. 368 with a view to preventing the Supreme Court to
invalidate any Constitutional Amendment Act on the theory of basic
features of the Constitution.
These Clauses have been emasculated by the Supreme Court itself,
striking them down on the ground that they are violative in the two basic
features of the Constitution:
(a) the limited nature of the amending power under Art. 368 and
(b) judicial review in the Minerva Mills case.
The court was very reluctant and cautious to exercise its power of Judicial
Review, during the first decade, when the Supreme Court declared invalid
only one of total 694 Acts passed by the Parliament.
During the second decade the court asserted its authority without any
hesitation which is reflected in the famous Golak Nath case and
Kesavananda Barti case. In these cases the Supreme Court assumed the
role of constitution making.
Indian Judiciary has been able to overcome the restriction that was put on
it by the 42nd amendment, with the help of the 43rd and 44th
amendments. Now the redeeming quality of Indian judiciary is that no
future governments could clip its wings or dilute its right of Judicial
Review. In fact, now the Judicial Review is considered to be the basic
feature of our Constitution.
Constitutional Provisions for Judicial Review:
The Indian Constitution adopted the Judicial Review on lines of U.S.
Constitution. Parliament is not supreme under the Constitution of India. Its
powers are limited in a manner that the power is divided between centre
and states.
Moreover the Supreme Court enjoys a position which entrusts it with the
power of reviewing the legislative enactments both of Parliament and the
court
balances
the
felt
necessities
of
the
time
and
Under the new arrangements a destitute citizen can file a writ petition
even through a simple letter written on a postcard. Cognizance of public
litigation eases by the Supreme Court has added a new dimension to its
role.
Despite these powers, the Indian Supreme Court is a creature of the
Constitution and depends for the continuation of these powers on the
union legislature which can impose limitations on them by amending the
Constitution. Moreover, all these powers can also be suspended or
superseded whenever there is a declaration of emergency in the country.
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:
(5) The grant of Judicial Review 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.
Assembly
must
be
compatible
with
the
constitution;
Since the First Amendment, the Ninth Schedule has been relied upon to
amend the constitution multiple times over. The 4th amendment inserted
six acts to the 9th schedule. The 17th amendment added 44 more acts.
The 29th amendment brought in 2 acts from Kerala. The 34th amendment
in 1974 added 20 more land tenure and land reforms laws enacted by the
states.
In 1975, Indira Gandhis infamous abuse of executive power leading up to
emergency saw the 39th amendment adding certain central enactments.
1976 saw the 40th amendment even more to the 9th schedule. The 47th
amendment in 1984 added more, and then in 1990 the 66th amendment
gave more protection to land ceiling acts.
The 76th amendment to accommodate Tamil Nadu Governments
legislation to provide for reservations to the level of 69 percent for SC/ST
and OBCs followed. What takes the cake however is the 78th amendment,
which was about not just immunity to laws in 9th schedule, which was
suspect, but amendments to those laws and making those amendments
immune. Since then there were absurd laws from Sugarcane supporting
price to the New Delhi Urban Zoning Laws all clamoring for an exalted
spot in the much abused Ninth Schedule.
The Supreme Court Judgment and the Ninth Schedule:
In a landmark ruling on 11 January 2007, the Supreme Court of India ruled
that all laws (including those in the Ninth Schedule) would be open to
Judicial Review if they violated the basic structure of the constitution.
Chief Justice of India, Yogesh Kumar Sabharwal noted, If laws put in the
Ninth Schedule abridge or abrogate fundamental rights resulting in
violation of the basic structure of the constitution, such laws need to be
invalidated.
The Supreme Court judgment laid that the laws placed under Ninth
Schedule after April 24, 1973 shall be open to challenge in court if they
violated fundamental rights guaranteed under Article 14, 19, 20 and 21 of
the Constitution.
country and below it are the High Courts at the state level. Other courts
(Subordinate Courts) work under the High Courts. The Supreme Court
controls and runs the judicial administration of India. All courts in India
form links of a single judicial system.
2. Independence of Judiciary:
The Constitution of India makes judiciary truly independent.
It provides for:
(i) Appointment of judges by the President,
(ii) High qualifications for appointment as judges,
(iii) Removal of judges by a difficult method of impeachment,
(iv) High salaries, pension and other service benefits for judges,
(v) Independent establishment for the Judiciary, and
(vi) Adequate powers and functional autonomy for the Judiciary.
All these features together make the Indian Judiciary an independent
judiciary.
3. Judiciary as the Interpreter of the Constitution:
The Constitution of India is a written and enacted constitution. The right to
interpret and clarify the Constitution has been given to the Supreme
Court. It is the final interpreter of the provisions of the Constitution of
India.
4. Judicial Review:
The Constitution of India is the supreme law of the land. The Supreme
Court acts as the interpreter and protector of the Constitution. It is the
guardian of the fundamental rights and freedoms of the people. For
performing this role, it exercises the power of judicial review. The Supreme
Court has the power to determine the constitutional validity of all laws. It
can reject any such law which is held to be unconstitutional. High Courts
also exercise this power.
5. High Court for each states as well a Provision for Joint High
Courts:
The Constitution lays down that there is to be a High Court for each state.
However, two or more states can, by mutual consent, have a Joint High
Court.
6. Supreme Court as the Arbiter of legal disputes between the
Union and States:
The Constitution gives to the Supreme Court the jurisdiction in all
cases of disputes:
(i) Between the Government of India and one or more states,
(ii) Between the Government of India and any state or states on one side
and one or more states on the other, and
(iii) Between two or more states.
7. Guardian of Fundamental Rights:
Indian judiciary acts as the guardian of fundamental rights and freedoms
of the people. The people have the Right to Constitutional Remedies under
which they can seek the protection of the courts for preventing a violation
or for meeting any threat to their rights. The Supreme Court and the High
Courts have the power to issue writs for this purpose.
8. Separation of Judiciary from the Executive:
The Constitution of India provides for a separation between the judiciary
and the other two organs of the government. The judiciary is neither a
branch of the executive nor in any way subordinate to it. The judicial
administration in India is oraganised and run in accordance with the rules
and orders of the Supreme Court.
9. Open Trial:
The courts in India are free. These conduct open trials. The accused is
always given full opportunity to defend himself. The state provides free
legal aid to the poor and needy.
10. Judicial Activism:
Indian Judicial System has been becoming more and more active. The
Supreme Court has been coming out with judicial decisions and directives
aimed at active protection of public interest and human rights. Judiciary
has been giving directives to public officials for ensuring a better security
for the rights of the public. The Public Interest Litigation system has been
picking up. The system of Lok Adalats has also taken a proper shape and
health.
11. Public Interest Litigation System:
Under this system the courts of law in India can initiate and enforce action
for securing any significant public or general interest which is being
adversely affected or is likely to be so by the action of any agency, public
or private. Under it any citizen or a group or a voluntary organisation, or
even a court herself, can bring to notice any case demanding action for
protecting and satisfying a public interest.
It provides for an easy, simple, speedier and less expensive system of
providing judicial relief to the aggrieved public. With all these features, the
Indian Judicial System is an independent, impartial, free, powerful and
efficient judicial system.
The Supreme Court of India is the federal court, a final court of appeal and
a guardian of the Constitution. The law declared by it, in the exercise of
any of its jurisdiction under the Constitution is binding on all other courts
within the territory of India. The Supreme Court has the powers to issue
writs to enforce fundamental rights.
The jurisdiction of the Supreme Court may be classified under three
heads. Original Jurisdiction means that no other court has the power to
entertain a suit on these matters. These matters are confined to disputes
between the Government of India and any other State or States of the
Union or between two or more States.
Writ Jurisdiction refers to the Supreme Court entertaining an application
(under Art. 32) for the issue of constitutional writ for the enforcement of
Fundamental Rights. The aggrieved party need not come through a High
Court by way of appeal.
By issuing a writ of Habeas Corpus the court can get a person released if it
has been kept under unlawful custody even by the State. The writ of
Prohibition gives an order to a subordinate court to stop proceedings in a
case where in the opinion of the Supreme Court/the trial court has
exceeded its jurisdiction.
The writ of Certiorari has the effect of quashing an order already passed
by a judicial or a quasi-judicial authority. The writ of Mandamus is in the
nature of a command to a subordinate court that may have refused to
exercise its jurisdiction. Quo-Warranto prevents an unlawful claimant from
holding a superior public office.
Appellate Jurisdiction of the Supreme Court may be divided under
the following sub-heads:
(i) cases involving interpretation of the constitution
(ii) civil cases
(iii) Criminal cases.