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Use of Judicial Review

Judicial review means the power of the judiciary to pronounce upon the validity of the acts of the public authorities both executive and legislature.

In a democracy like India judiciary plays an important role in protecting and safeguarding from arbitrariness of either executive or legislature. Judiciary is an independent existence rather it must be, the other two other organs executive and legislature are relatively connected. Judiciary is considered as final interpreter of the constitution {a legal document to which all the organs are subordinated} if any question arises with regard to the substantial question of law of or interpretation of the constitution, same is referred to the guardian and protector of the fundamental rights .Judicial review is the soul of the system without it democracy and rule of law cannot be maintained.

It is an integral part of the constitution and constitutes the  basic structure  {observed by the SC} of the constitution. The whole law of the judicial review has been developed on a case to case basis.As I above penned down that judiciary has to determine the validity of the acts of either legislature or executive if any act is contrary or violates the basic structure of the legal document that act shall be void to that extent (article 254). Article 13 {2} of the Indian constitution provides that any law contravening the fundamental rights would be declared void. Thus anything having effect of law for the time being in force if it infringes any fundamental right shall be void .

The question with regard to the expression Law was raised:

  • whether the law includes constitutional amendment in exercise of amending power? Or
  • it only included laws enacted by the legislature in the exercise of ordinary legislature power?

The court has taken different stands in different case laws, lets have a look:
In the case of Shankari Prasad vs. Union Of India, the constitutional {1st amendment} 1951 was challenged which inserted inter alia article 31 A and 31 B of the constitution. The said amendment was challenged on the ground that it abridged the rights conferred by part 3rd of the constitution. It was argued that the word  Law  in the article 13 {2} therefore includes constitutional amendment.

The court however rejected this argument and held that the word  Law  in article 13 {2} includes only an ordinary law made in the exercise of legislative power and does not include constitutional amendment. The same stand was upheld by the supreme court in another case, Sajjan Sing vs. State of Rajistan. But this attitude was changed by the court in the case of GolakNath vs. State of Punjab in which constitutional {17th amendment} was challenged.

The SC by majority of 6 to 5 overruled its earlier two decisions and held that parliament had no power to amend part 3rd of the constitution. In other words constitutional amendment is also a law within the meaning of article 13 of the constitution. In the meantime Parliament enacted the 24th amendment Act to remove difficulties created by the Golak Nath case, it added {4} to article 13 and clause {3} to article 368 thus restored the earlier position.

Subsequently this 24th constitutional amendment was challenged in the case of Kashananda Bharti case in this case the court however upheld the said amendment and overruled the Golak Nath case but observed that parliament can not under article 368 destroy the  basic structure  of the constitution. It is pertinent to note that among the basic structures, judicial review was held as basic structure by the court in the Minerva Mills Ltd. Vs. Union of India.

Therefore it can be stated that judicial review is most significant in our democracy. When People are disheartened by the arbitrary and discriminatory acts of legislature or executive, they have only one hope I,e judiciary we are lucky to have such system in our country.. presently judicial review of some important acts of the Government are sub judice in the highest court of land like CAA, NPR people are eagerly awaiting for the court on such issues.

Written By: Adv Younis is a law student and can be reached at [email protected]

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