This article has been written by Stuti Malik, a 1st year student of , Hidayatullah National Law University

Introduction

“Law is very important in today’s society. People have given up their rights and decided to enter into an agreement with the government in exchange for protection against wrongdoing. Hobbes’ Social Contract Theory is known for this. Without justice, the law can become arbitrary and be misapplied during this phase of Rule of Law. So, in order to keep each organ of government’s power in check, we have also implemented Judicial Review. Judicial review refers to the procedure by which the court declares void any law that violates the constitution. This feature was adopted from the United States Constitution. However, it took many years to correct this flaw in our constitution. In this regard, the judiciary has played a crucial role. Judicial review can be applied to Constitutional Amendments, Legislative actions, and Legislative Laws.”

Evolution of Judicial Review 

“The term judicial review first appeared before the court in the Dr. Bonham Case. In this case, the Royal College of Physicians barred Dr. Bohnam from practising in London because he lacked the necessary licence. This case is also known for violating Natural Justice Principles, as there is Pecuniary Bias in this case. If Dr. Bonham is fined for practising without a licence, the fine will be split between the king and the college.

Following that, the term judicial review was defined in Marbury v. Madison, 1803. In this case, President Adam’s term as a member of the federalist party ended, and Jefferson, an anti-federalist, took power. Adam appointed federal party members as judges on his last day. However, when Jefferson came to power, he was opposed to this. As a result, he prevented Madison, the secretary of state, from delivering the appointment letter to the judges. One of the judges, Marbury, approached the Supreme Court and requested a writ of mandamus. The court refused to hear the plea and instead opposed the order of the legislature, i.e. Congress, and thus the doctrine of judicial review was developed by the US Supreme Court.”

Importance of Judicical Review:

Judicial review is important for the reasons listed below:

• It averts executive tyranny.
• It protects citizens’ fundamental rights.
• It is critical for preserving the autonomy of the judiciary.
• It is an essential requirement for preserving the Constitution’s supremacy.
• It also aids in detecting power abuses by the legislature and the executive.
• It helps to maintain the balance between the federal government and the states.

Scope of Indian Judicial Review 

Judicial review is not absolute, as certain conditions must be met in order to file a demurrer against any legislation in the Supreme Court or the lower courts, i.e., a law can be challenged only if:

• The law infringes on fundamental rights guaranteed by the Constitution.
• The law violates the provisions outlined in the Constitution.
• The enacted law exceeds the capacity or authority of the official(s) in charge who enacted it.

Scope of Judicial Review: India vs United States 

The constitutionality of a legislative act or an executive order can also be challenged in the Supreme Court or the High Courts on the three grounds listed below:

• It violates the Fundamental rights given in  Part III of the constitution.
• It is outside the purview of the authority that drafted it, and it violates constitutional provisions.

From the foregoing, it is transparent that the scope of judicial review in India is narrower than that in the United States, despite the fact that the concept of judicial review is not explicitly mentioned in any of the American Constitution’s provisions. This is because the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ which is contained in the Indian Constitution.

Features of Judicial Review:

1. This power can be exercised by both Hight Court and the Supreme Court of India: “A person may petition the Supreme Court under Article 226 for a violation of any fundamental or legal right. In addition, under Article 32, a person may petition the Supreme Court for any infringement of a fundamental right or a legal question. However, the ultimate authority to interpret the constitution rests with the Supreme Court. The Supreme Court is the highest authority, and its decisions have national ramifications.
2. Judicial Review can be done of both state laws and central laws– Laws enacted by the federal government and the states are both subject to judicial review. All laws, orders, bye-laws, ordinances, and constitutional amendments, as well as all other notifications, are subject to judicial review under Article 13(3) of the Indian Constitution.
3. Judicial review is attracted and applied– The notion of judicial review must be embraced and implemented. The Supreme Court cannot seek judicial review on its own. It can only be used when a topic of law or rule is brought before the Hon’ble court.
4. Judicial review is never suo motu– The Supreme Court, or any other court for that matter, does not use its authority to conduct a judicial review on its own initiative. However, such power is exercised when a question of law is presented to the courts or during court hearings when any such incident happens or such conditions as to where the legislation is in question arise.”

What all can the Supreme Court decide under Judicial Review?

(i)The legislation is constitutionally sound. In this case, the law remains in effect as before, or

(ii) The law is unconstitutional. In this case, the law no longer applies as of the date of the judgement.

(iii) Only some or all of the law is invalid.

Only null and void parts or parts become inoperable in this case, while other parts remain operational. However, if the invalidated part/parts are so important to the law that the other parts cannot function without them, the entire law is rejected.

Judicial Review of Ordinances

“The president and the governor of the state have the authority to pass an ordinance under Articles 123 and 213 of the Indian Constitution. An act of ordinance by the president or governor is subject to the same constraints as legislation passed by parliament. This authority is only exercised by the president or governor in exceptional circumstances. The power should not be misused. According to a report released by the Lok Sabha, the president issued 701 ordinances between October 2016 and October 2017. The ordinance stated that Rs.500 and Rs.1000 notes will no longer be liabilities as of December 31, 2016.”

Scenario of Judicial Review at present in India

Not long ago, the Supreme Court of India rejected the Central Vista project as a one-of-a-kind case requiring “heightened” judicial scrutiny. The Court stated that the government had the authority to create policies and make mistakes as long as the Constitutional guidelines were followed.

With the abolition of the locus standi concept, suo moto cases and Public Interest Litigations (PILs) have given the judiciary the authority to intervene in matters pertaining to the general public’s well-being even when the offended party did not raise any objections.

Conclusion

We have adopted the idea of Separation of powers in India, so we cannot exercise full judicial review power. If the courts assume full and arbitrary judicial review power, it will result in poor performance by all government organs. So, in order for all functions to function properly, each must work within its assigned sphere. The concept of judicial review is ingrained in the basic structure of the Indian constitution. It assists the courts in keeping the other two branches of government in check so that they do not misuse their authority and collaborate in the spirit of the Constitution.The judicial review function is one of the most powerful systems in the Constitution of India. This doctrine has its origins in India and is explicitly sanctioned by the Indian Constitution.

Reference 

1. https://blog.ipleaders.in/all-about-judicial-review/
2. https://www.legalpedia.co.in/articlecontent/judicial-review-a-brief-analysis.html
3. https://www.indiatoday.in/education-today/gk-&-current-affairs/story/what-is-judicial-review-importance-scope-and-types-1882987-2021-12-01

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