January 29, 2023

Judicial Review

This article has been written by Ms. Damini Chauhan, a student of BBA.LLB (Hons), from United world school of law, Karnavati University, Gandhinagar. This author is a 5th year law student.

INTRODUCTION

The ultimate authority of the judiciary to examine laws or orders and assess their legality is referred to as “judicial review.” In India, this system is regulated by the principle of “process established by law,” which has one test: Whether a law was produced via legal procedures or not; if not, it will be deemed unconstitutional.

In India, the constitution serves as the highest authority. The Indian judiciary has the authority to void any law that breaches the fundamental principles of the constitution because it is the supreme law of the land in that country. Although the Indian Constitution does not specifically mention judicial review, it does contain numerous clauses that clearly describe it.

The judiciary in India is vested with the authority to review the administrative, legislative, and executive branches of government to verify that they are acting in accordance with the requirements of our constitution. The following clause shall be null and void if it is determined to be unlawful.

Judicial review looks at two crucial functions:

  • Providing justification for government activities; 
  • defending the constitution from attempts by the government to encroach upon it.

HISTORIC PERSPECTIVE

The United States Supreme Court’s judicial review authority is its most distinguishing quality. The judiciary can consider laws that may be in conflict with the nation’s constitution because they are the guardians of that document. The Supreme Court first used the power of judicial review in the Marbury v. Madison case (1803), which limited the power of Congress by ruling that the legislation was unconstitutional. This case established the supreme court’s authority.

In this instance, the court ruled that it was improper for the newly elected president at the time, John Madison, and his secretary of state, William Marbury, to block Marbury from serving as a district court justice after the former president had appointed him to the position just before he left office. He consequently issued a writ of mandamus against the secretary of state. Although the Marshall court declared the Judicial Act of 1789 to be an unconstitutional expansion of the judiciary, it gave the supreme court jurisdiction.

In terms of the possibility of judicial review, the Indian Constitution is more oriented toward the U.S. Constitution than the British one. In contrast to India, where the parliament is not supreme and cannot make laws, no court in Britain has the authority to declare any law passed by the British parliament invalid. Any laws implemented there are always subject to judicial review.

JUDICIAL REVIEW: WHY IT’S IMPORTANT

Judicial review is important for the following reasons: 

  • It protects citizens’ fundamental rights; 
  • It helps preserve the independence of the court; 
  • It prevents the tyranny of executives. For the Constitution to remain supreme, it is a fundamental requirement. Additionally, it aids in catching the executive and legislative branches when they abuse their authority. It assists in preserving the balance between the federal government’s core and each individual state.

JUDICIAL REVIEW TYPES

Justice Syed Shah Mohamed Quadri is renowned for classifying the availability of judicial review in India into three major categories:

  • The legal assessment of constitutional amendments.
  • Judicial review of administrative actions of the union and state expanding up to authorities under the state. 
  • Judicial review of laws passed by the parliament and state legislatures expanding to subordinate laws.

THE INDIAN CONSTITUTION’S PROVISIONS

The US Constitution provided the model for the judicial review system that the Indian parliament has adopted. The powers of the parliament are not absolute and are split between the federal government and the states. The supreme courts have the authority to evaluate legislation passed by both the national and state legislatures. As a result, the courts are given more authority and a tool for judicial review.

Our Constitution has granted permission for various judicial review system provisions in a number of its articles. These articles are Articles 13, 32, 131–136, 143–226, 145–246, 254–251 and Articles 372–372. Below, a brief explanation of each of these articles is provided:

Any law that violates one or more of the requirements of the fundamental rights is declared invalid under Article 13.

A person is entitled to constitutional remedies under Article 32, which means that they can petition the Supreme Court to have their fundamental rights upheld.

According to Article 226, the supreme court has the authority to issue directives, orders, or writs of quo warranto, certiorari, mandamus, and habeas corpus. These directives, orders, or writs may be issued for any reason, including the defence of basic rights.

The highest court is granted advisory authority by Article 143. If the president believes it would be beneficial to get the supreme court’s view on a legal issue or a matter of national concern, he may do so.

Until it is changed, repealed, or amended by a competent legislative or an authority, all of the law that was in effect on Indian territory immediately prior to the constitution’s start date shall remain in effect there.

The courts are given the authority to decide disputes between people, between people and the state, and between states and the union under Articles 131-136; however, the court may be asked to interpret the constitution’s provisions, and the Supreme Court’s interpretation is regarded as the law by all other courts in the country.

According to Article 245, the constitutional provisions must be followed by both the national and state legislatures. The legality of any legislation may be contested in court if it violates any fundamental rights or relates to a specific issue.

According to Article 246(3), the Indian Constitution’s provisions apply to both the powers of the national legislature and the state legislatures.

If there is a conflict between federal and state laws, according to Articles 251 and 254, the state laws are void.

Also to be considered is the fact that our constitution does not expressly grant the courts the authority to declare laws unconstitutional; rather, they are merely tasked with determining whether the law that will be put into effect is constitutional or not. When one portion of a clause becomes ineffective while another portion of the clause is still in effect. The entire legislation is rejected if one operating component cannot function without the other component.

When a statute is declared unconstitutional, the Indian constitution will be amended to remove the specific part of the provision that was found to be unconstitutional, if any part of the provision was found to be unconstitutional. When a statute is declared unconstitutional by the courts, it is no longer in effect as of the date of the court’s ruling. All previous decisions that were made before the day of declaration will remain in effect.

REFORM OF THE CONSTITUTION

All of the authority’s constitutional amendments are subject to judicial review during this phase. All amendments that violate fundamental rights are deemed invalid and in violation of the constitution. It is possible to track the history of every judicial review of constitutional amendments. We have previously seen in the aforementioned case laws that constitutional changes were contested and that all of those that were in violation of the constitution were ruled invalid. In the following cases, the constitutional amendment has been subject to judicial review: Shankari Prasad v. Union of India; Sajjan Singh v. State of Rajasthan; I.C. Golaknath v. State of Punjab; Kesavananda Bharti v. State of Kerala; and I.R. Coelho v. State of Tamil Nadu. In this work, each of these scenarios has been covered in detail.

PROCEDURE FOR JUDICIAL REVIEW IN INDIA

According to Article 21 of the Indian Constitution, the judicial review process in India is guided by the idea of “Procedure established by law.” Legislation is defined as a piece of legislation that satisfies the constitutionality requirement. On the other hand, the court has the authority to declare a legislation to be invalid.

LIMITATIONS OF JUDICIAL REVIEW

The high courts and the Apex Court are subject to some restrictions on how they can exercise their authority when it comes to judicial review. In fact, judicial activism is the term used to describe instances in which the judiciary oversteps its bounds and interferes in matters that the executive has authorised. On the other hand, judicial overreach can result from the further abuse of power.

CASES OF JUDICIAL REVIEW IN INDIA

It is possible to perform judicial examination of central and state current laws as well as executive and constitutional amendment ordinances. The legislation included in the Indian Constitution’s ninth schedule are not subject to judicial review. There is no appeal available against the ruling of the supreme court because all courts in the nation follow the rulings of that court.

First Amendment Act of 1951 was being contested before the Supreme Court in Shankari Prasad v. Union of India on the grounds that it had curtailed the “Right to Property,” and it was contended that this could not be done since the Article 13’s fundamental rights did not allow it (2). The Supreme Court disagreed, stating that Article 368’s provisions are completely general and provide the Parliament complete authority to change the Constitution.

Three changes to the constitution-the first, fourth, and seventeenth were contested in the famous case of Golaknath v. State of Punjab. The supreme court overturned its ruling that parliament lacks the authority to change article 368 in order to eliminate or curtail the fundamental rights protected by our constitution. The supreme court noted that: Article 368 does not actually contain the power to amend the constitution; the power to amend the constitution is derived from articles 245, 246, and 248; and entry 97 of the Union list; and Article 368 only specifies the procedure to be followed regarding constitutional amendments.

In the Minerva Mills case, the Supreme Court overturned section 4 of the 42nd Amendment Act, which granted the directive principles control over articles 24, 19, and 31 of our constitution. Since it stated that Parts III and IV of our constitution are equally vital and that giving one a clear advantage over the other is not permitted, it would break the harmony of the Indian Constitution. Interpreting the various constitutional sections helps ensure that laws are implemented properly throughout the nation.

CONCLUSION

The judicial review system is one of our Indian Constitution’s most effective systems. Thus, the notion of judicial review is well established in India, and it is explicitly sanctioned by the Indian constitution. The judiciary is clearly emphasised in all of our legal rules, and it plays a crucial role in maintaining the balance of power between the legislative and executive branches of both the federal government and the states. The system of judicial review serves as the guardians of our constitution’s protection, upholds each person’s fundamental rights, allocates authority between the federal government and the states, and lays out in precise terms the authority of every governmental body that functions in the nation. so giving the government’s acts legitimacy and ensuring that the Indian constitution is protected from any unwarranted government intrusion.

REFERENCE

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