THE DOCTRINE OF JUDICIAL REVIEW

BY : NEHA YADAV

INTRODUCTION:

Judicial Review means overseeing by the judiciary of the exercise of power by other co-ordinate organs of the government with aview to ensuring that they remained confined to the limits drawn upon their powers by the Constitution.

 It is power of the court to review the actions of legislature and executive and also review the actions of judiciary. It is the power of scrutinizing the validity of law or any action whether it is valid or not.

Doctrine of Judicial Review is based on the concept of Rule of Law and separation of powers.  Judicial Review is the check and balance mechanism to maintain the separation of powers.

The main objectives of Doctrine of Judicial Review are as follows:

  • to determine the unconstitutionality of Legislative Acts
  • to maintain supremacy of the Constitutional Law
  • to protect the Fundamental Rights
  • to maintain federal equilibrium between Centre and the States
  • to check arbitrariness, unjust harassing and unconstitutional laws

ORIGIN OF DOCTRINE OF JUDICIAL REVIEW –

This concept of Judicial Review is basically originated in America in the historic landmark case of Marbury v/s Madison in 1803.

But Lord Coke decision in case of Dr. Bonham v/s Cambridge University had rooted the scope of Judicial Review first time in 1610 in England.

In India, Emperor v/s Burah was the first case which interpreted and originated the concept of judicial review. In this case court held that the constitutionality of a Legislative Act enacted by the Governor General Council in excess of the power given to him by the parliament can be challenged.

In Secretary of State v/s Moment case it was held that the Government of India cannot by Legislature take away the right of the Indian subject conferred by Government of India Act of 1858.

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DOCTRINE OF JUDICIAL REVIEW IN INDIA :

In India, the Doctrine of Judicial Review is the basic feature of the Constitution. Though there is no express provision for judicial review in Indian Constitution but it is an integral part of our Constitution.

In India, judicial power is a power granted to the court to set up a system of check and balance between Legislature and Executive. There are various provision in Indian Constitution explicitly provides for the power of judicial review to the courts such as article 13, 32, 131-136, 141, 143, 226, 227, 245, 246 and 372.

  • In AK Gopalan v/s State of Madras case the power of judicial review was firmly established along with its limitation.
  • In Keshavanand Bharti’s case, it was held by court that the concept of judicial review is a ‘basic structure’ of the Indian Constitution and cannot be amended.
  • In case of Minerva Mills Ltd v/s UOI, Supreme Court observed that the constitution has created

Supreme Court of India has declared the Judicial Review power of the Supreme Court and High Court in India as a basic structure of the Constitution which cannot be taken away even by way of a Constitution amendment.

If during the Judicial Review, any legislature enactment/ executive order of either State Government or Central Government is found to be in violation of the Constitution it will be declared as invalid.

TYPES OF JUDICIAL REVIEW ACCORDING TO SUPREME COURT

  1. Judicial Review  of constitutional amendments
  2. Judicial Review of legislature of the Parliament and State Legislature and Subordinate legislatures.
  3. Judicial Review of administrative action of the Union and State and authorities under the state.

Grounds on which judicial review of any administrative action can be exercised:

  • Illegality
  • Irrationality
  • Proportionality
  • Fairness

Judgements with essence of Doctrine:

  1. A.K. Gopalan v/s State of Madras (1950)-

Supreme Court in this case held that Constitution is supreme. And if parliament made any laws, so it should be according to requirement of the Constitution and it shall be checked out by the judiciary.

    In this case also court decided that any legislation in Constitution should be in conformity with the Constitution.

‘Doctrine of basic structure’ of the Constitution was decided in this case.

Court in this case held that Parliament can amend the Fundament Rights as given in the Constitution.

”As long as some Fundamental Rights exist and are 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”.

Held that ”Constitution is supreme and is a permanent law of the land. And every branch of government derives its power from Constitution. Supreme Court is assigned the delicate task of determining what is the power conferred on each branch of the government.”

Court held that ”it is the function of judges of Supreme Court to pronounce upon the validity of the law. If courts are totally deprived of that power, the Fundamental Rights conferred on the people will become a mere adornment because rights without remedies are as writs. A controlled Constitution will then become controlled.”

Court held that, ”the judges of Supreme Court have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it.”

Court held that, ”the function of judicial review is a part of the constitution interprets itself and it adjusts the Constitution to meet now conditions and needs of the time.”

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