Judicial review

Judicial Review

  • The ability of the judiciary to assess the constitutionality of legislative action and the executive orders made by the central and state governments is known as Judicial Review. This power is typically used in the Administrative Court.
  • The power of judicial Review is granted by Article 13 of the Indian Constitution, which is sometimes referred to as an important privilege granted in Part III of the section on fundamental rights. High Courts and the Supreme Court of India can declare a rule by the Union of India or a State violating a person's fundamental rights.
  • Based on a doctrine that originated and developed in the USA, the Indian Constitution grants the supreme and high courts the authority to conduct judicial reviews.
  • According to the Supreme Court, judicial Review is a fundamental component of the Indian Constitution.
  • There are different categories of Judicial Review, including Judicial Review of constitutional amendments, Judicial Review of legislation, and Judicial Review of Administrative actions.

Types of Judicial Review

  • Judicial Review of a legislative decision: This form of Review ensures that all laws passed by the legislature must adhere to the Constitution's requirements. 
  • Judicial Review of an administrative decision: Judicial Review of administrative actions made by the state and union, including those by state authorities.
  • Judicial Review for judicial decision: Any modification to the Constitution is open to judicial Review.

Constitutional Provisions for Judicial Review

  • The Constitution does not explicitly grant the courts the authority to declare legislation unconstitutional. However, it has set up clear restrictions on each organ that, if violated, render laws unconstitutional.
  • The responsibility of determining whether any constitutional restrictions have been violated or not falls to the court.
  • The following are some constitutional provisions that support the judicial review process:
    • Article 372 (1): The judicial Review of pre-constitutional law
    • Article 13: any law that violates any of the terms of the Fundamental Rights shall be null and void.
    • Articles 32 and 226: The Supreme and High Courts are given the responsibilities of guardian and protector of basic rights.
    • Articles 251 and 254: When state laws conflict with those of the union, the state legislature shall be null and void.
    • Article 246 (3): The state legislature's exclusive authority over matters relating to the State List is guaranteed  
    • Article 245: both the powers of the Parliament and the State legislatures are governed by the Constitution's rules. 
    • Articles 131-136: gives the court the authority to decide on disputes between people, between people and a state, and between states and the union. However, the court may be asked to interpret the Constitution's provisions, and the Supreme Court's interpretation is accepted as the law by other courts in the country.
    • Article 137: The SC has a specific authority to examine any decision or order issued. Only if flaws are evident on the record can an order made in a criminal case be reviewed and overturned.

Scope of JR:

  • The supreme or high court may constitutionally challenge any legislative or executive order because it violates basic rights.
  • They may also appeal an order if it violates constitutional provisions or falls outside the purview of the entity that issued it.
  • Because India adheres to the concept of "process established by the law", as stated in Article 21 of the Constitution, the scope of judicial Review in India is less broad than in the USA.

Judicial Review of the ninth schedule

  • The First Constitutional Amendment Act of 1951 amended the Constitution by adding Article 31B and the ninth schedule.
  • The provisions of the ninth schedule are shielded from challenge and invalidation because they conflict with basic rights by Article 31B.
  • These laws, which are part of the Indian Constitution's 9th schedule, primarily deal with land reform and the dissolution of the zamindari system.
  • When the Supreme Court heard the Coelho case in 2007, Judicial Review was made the fundamental component of the Indian Constitution.
  • This made it possible to challenge legislation covered by the ninth schedule if it infringed upon fundamental liberties or the fundamental principles of the Constitution.
  • A law that the supreme court once ruled to be lawful cannot be invalidated again.

Importance of Judicial Review:

  • It is necessary to uphold the Constitution's supremacy.
  • It is crucial for preventing potential abuse of authority by the legislative and executive branches.
  • The rights of the populace are safeguarded.
  • It keeps the government budget in balance.
  • It is crucial for protecting the judiciary's independence.
  • It avoids executive despotism.

Limitations of Judicial Review

  • The court's role is to review the procedure by which the decision was made to determine whether it was flawed and should be overturned rather than to re-make the decision being challenged or to look into its merits. This limits the scope of judicial Review in terms of its availability and purpose.
  • A discussion over where to draw the line between judicial activism and self-restraint has been prompted by Judicial Review.

Cases on Judicial Review

  • Maneka Gandhi case 1978- the supreme court harmonized 'procedure established by law' actually and "due process of law" of the US constitution, which includes the principle of natural justice.
  • Shreya Singhal case, 2015- it struck down the IT Act provisions that allowed the arrest of individuals based on the context they post online.
  • Keshvanand Bharati case, 1973- 24th and 25th amendment act of 1971 was challenged, and SC stated that Parliament couldn't destroy or amend the Constitution's basic structure.
  • Indira Gandhi vs. raj narain case, 1975- The 39th amendment was challenged and struck down as it put a bar on any question regarding the election of speaker and prime minister
  • SR Bommai case, 1994- the supreme court detailed the limitations within which presidential rule can be invoked to prevent central autocracy.
  • IR Coelho case, 2008- in this case, the court held that any act inserted in the ninth schedule could be judicially scrutinized after 24th April 1973, thus quashing article 31A.
  • Shayra bano case, 2017- SC ruled that the practice of triple talaq enshrined in Muslim personal law be unconstitutional.
  • Krishna Kumar Singh case- SC has reiterated that re-promulgating ordinances are a constitutional fraud and a subversion of democratic legislative processes.

Way forward-

  • Only in situations with fundamental rights problems must the right to judicial review be maintained.
  • Because the judiciary's power is currently unchecked, there must be mechanisms to prevent arbitrary use.
  • Executive, judicial cooperation- If legislation is passed after consultation with the judiciary, judicial Review can often be avoided.
  • Curbs judicial overreach: Judicial Review cannot extend beyond the judiciary's purview and into the executive branch. 
  • Balance: As cornerstones of Indian democracy, judicial review authority and parliamentary supremacy must be sufficiently balanced.

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