Judicial Review by Krishna Sreeja@Lexcliq

Introduction:

There exists a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. This proceeding is called Judicial Review. In other way, Judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

Judicial Review:

Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. On examination, if they are found to be violative of the Constitution, they can be declared as illegal, unconstitutional and invalid by the judiciary. Consequently, they cannot be enforced by the Government.

In India, on the other hand, the Constitution itself confers the power of judicial review on the judiciary (both the Supreme Court as well as High Courts). Further, the Supreme Court has declared the power of judicial review as a basic feature of the Constitution or an element of the basic structure of the Constitution. Hence, the power of judicial review cannot be curtailed  even by a constitutional amendment.

IMPORTANCE OF JUDICIAL REVIEW:

Judicial review is needed for the following reasons:

  •  To uphold the principle of the supremacy of the Constitution.
  • To maintain federal equilibrium (balance between the Centre and the states).
  • To protect the Fundamental Rights of the citizens.

CONSTITUTIONAL PROVISIONS OF JUDICIAL REVIEW:

Though the phrase Judicial Review has nowhere been used in the Constitution, the provisions of several Articles explicitly confer the power of judicial review on the Supreme Court and the High Courts. These provisions are explained below:

  1. Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void.
  2. Article 32 guarantees the right to move the Supreme Court for the enforcement of the Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs for that purpose.
  3. Article 131 provides for the original jurisdiction of the Supreme Court in centre-state and inter-state disputes.
  4. Article 132 provides for the appellate jurisdiction of the Supreme Court in constitutional cases.
  5. Article 133 provides for the appellate jurisdiction of the Supreme Court in civil cases.
  6. Article 134 provides for the appellate jurisdiction of the Supreme Court in criminal cases.
  7. Article 134-A deals with the certificate for appeal to the Supreme Court from the High Courts.
  8. Article 135 empowers the Supreme Court to exercise the jurisdiction and powers of the Federal Court under any pre-constitution law.
  9. Article 136 authorises the Supreme Court to grant special leave to appeal from any court or tribunal (except military tribunal and court martial).
  10. Article 143 authorises the President to seek the opinion of the Supreme Court on any question of law or fact and on any pre-constitution legal matter.
  11. Article 226 empowers the High Courts to issue directions or orders or writs for the enforcement of the Fundamental Rights and for any other purpose.
  12. Article 227 vests in the High Courts the power of superintendence over all courts and tribunals within their respective territorial jurisdictions (except military courts or tribunals).
  13. Article 245 deals with the territorial extent of laws made by Parliament and by the Legislatures of States
  14. Article 246 deals with the subject matter of laws made by Parliament and by the Legislatures of States (i.e., Union List, State List and Concurrent List).
  15. Articles 251 and 254 provide that in case of a conflict between the central law and state law, the central law prevails over the state law and the state law shall be void.
  16.  Article 372 deals with the continuance in force of the pre-constitution laws.

As long as some Fundamental Rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these Rights are not contravened.

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