Judicial Review

Judicial Review

Meaning

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary

• • Judicial review has two important functions, like, of legitimizing government action and the protection of constitution against any undue encroachment by the government.
    • Judicial review is considered a basic structure of the constitution (Indira Gandhi v. Raj Nairan 1975).
    • Judicial review is also called the interpretational  and observer roles of the Indian judiciary.
    • Suo Moto cases and the PIL, with the discontinuation of the principle of Locus Standi, have allowed the judiciary to intervene in many public issues, even when there is no complaint from the aggrieved party.

Types of Judicial Review:
Reviews of Legislative Actions

This review implies the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.

Review of Administrative Actions:

This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.

Review of Judicial Decisions:

This review is used to correct or make any change in previous decisions by the judiciary itself.

Importance of Judicial Review:

• • • • • It is essential for maintaining the supremacy of the Constitution.
        • It is essential for checkingthe possible misuse of power by the legislature and executive.
        • It protects the rightsof the people.
        • It maintainsthe federal balance.
        • It is essential for securing the independence of the judiciary.
        • It prevents tyrannyof executives.
      • Problems with Judicial Review:
        • It limits the functioning of the government.
        • It violates the limit of power set to be exercised by the constitutionwhen it overrides any existing law.
          • In India, a separation of functions rather than of powers is followed.
          • The concept of separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.
        • The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
        • Judicial review can harm the public at large as the judgment may be influenced by personal or selfish motives.
        • Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.

Constitutional Provisions for Judicial Review

• There is no direct and express provision in the constitution empowering the courts to invalidate laws, but the constitution has imposed definite limitations upon each of the organs, the transgression of which would make the law void.
• The court is entrusted with the task of deciding whether any of the consti­tutional limitations has been transgressed or not.
• Some provisions in the constitution supporting the process of judicial review are:
  • Article 372 (1)establishes the judicial review of the pre-constitution legislation.
  • Article 13declares that any law which contravenes any of the provisions of the part of Funda­mental Rights shall be void.
  • Articles 32 and 226entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
  • Article 251 and 254states that in case of inconsistency between union and state laws, the state law shall be void.
  • Article 246 (3)ensures the state legislature’s exclusive powers on matters pertaining to the State List.
  • Article 245states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.
  • Articles 131-136entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state, between the states and the union; but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.
  • Article 137 gives a special power to the SC to review any judgment pronounced or order made by it. An order passed in a criminal case can be reviewed and set aside only if there are errors apparent on the record.

Cases Related to Judicial Review

Case 1 MARBURY V. MADISON[5 U.S 137(1803)

The doctrine of judicial review was for the first time formulated by the supreme court of America in this case. In this case the chief justice marshall observed that the constitution is the paramount law of the nation and every act of the legislature which is repugnant to the constitution is void. The Indian constitution contains an express provision article 13 for judicial review. The power of judicial review is exercised by the supreme court and high court in India.

Case 2 P.U.C.L v. UOI[2003]

The Indian Supreme Court, in its historical verdict stated that to disregard or disobey the decision given by the court, the lawmakers of India have no power to ask for the instrumentality, if the legislature has influence over the subject matter.

Case 3.  I. R. COELHO V. STATE OF TAMIL NADU[AIR 2007 SC 861]

This case was seen from Kesavananda Bharati case in which cases like Chandra Kumar v. Union        of India and others (1997)Waman Rao and others v. Union of India and others (1981), Minerva Mills Ltd. and others v. Union of India (1980) Indira Nehru Gandhi v. Raj Narnia (1975), where judicial review was considered as essential and integral Part of the Constitution of India.

Case 4. BINOY VISWAM V. UNION OF INDIA [2017]

The supreme court or the high court in exercise of its power of judicial review can declare law passed by parliament or the state legislature as invalid on only two grounds- first it is not within the competence of legislature which passed the law and second it is in contravention of any of fundamental rights stipulated in part 3 of the constitution or any other right or provision of constitution . No grounds are available to invalidate any Pierce of legislation.  A law cannot be invalidated on the grounds  that the legislature did not apply its mind or it was prompted by some improper motive or it was arbitrary or unreasonable.

Case 5. MITTU V. STATE OF PUNJAB[AIR 1983 SC 473]

The Supreme Court of India has struck down Section 303 of Indian Penal Code, 1860. This section had made the death sentence mandatory. In case Article twenty-one of the Indian Constitution was illustrated by the S.C.I. complete its frequent pronouncement.