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Judicial Review in India

Judicial review is the process by which a court declares an unconstitutional law invalid or void. Judicial review empowers the judiciary to keep up with the check and balance system between the judiciary, executive and legislature, by reviewing the legislations passed by parliament, and invalidate it, if it does not comply with the provisions of the Constitution.

Judicial Review and Indian Constitution:

Judicial reviews may relate to the constitutional amendments, legislative acts, and laws created by the legislature and enforced by the executive branch. Since, the judiciary operates independently of the other two institutions, it guarantees that, the laws created and enforced by these institutions do not violate any of the provisions of the Indian Constitution.

In India, Art. 32 (Right to Constitutional Remedies) and Art. 136 (Original Jurisdiction) of the Constitution empowers the Supreme Court with the function judicial review, and similarly, under Art. 226 and Art. 227, the High Court has the authority to perform judicial review.

Importance of Judicial Review:

  1. It ensures the Protection of Fundamental Rights Guaranteed by the Constitution,
  2. It maintains the supremacy of the Constitution,
  3. It also regulates the Center-State matters and their relations by Art. 246 of the constitution, by providing the 3 constitutional lists.
  4. It safeguards the Independence of Judiciary,
  5. It guarantees Impartiality and Fairness in the actions of the Legislature and Executive,
  6. It protects the basic structure of the constitution as well.

Limitations of Judicial Review:

  1. Judicial Review limits the actions of the government as, it is only permitted to verify the legality of the procedures used to reach to a certain legal decision
  2. The judicial pronouncements given by the judges for one case, becomes the basis for deciding other cases as well.
  3. Repeated court intervention can undermine people's confidence, belief and support in government's integrity, quality and effectiveness.
  4. The judiciary is deemed from interfering in the political questions, policies and matters except absolutely essential.
  5. Since, the judgments can be influenced by personal or selfish motivations, such decisions are detrimental to the general public.
  6. If the courts assume full and arbitrary control over judicial review, it will result in government agencies providing poor performances.
  7. In India, attention is paid to the separation of functions, rather than focusing on the separation of powers.
  8. The concept of separation of powers is not strictly followed in the judicial review. However, to ensure this, a system of checks and balances has been introduced, empowering the judiciary to strike down or overturn any laws and orders passed by the legislature that is unconstitutional.

Scope of Judicial Review;

The scope of judicial review is limited in terms of both, its availability and functionality. Here the role of the courts is nether of replication of the disputed decision nor to consider the merits of those decisions, but simply, to review the procedure that has given the pat for the decision. The courts have to assess whether the decision made were wrong and should be overturned or not.

Judicial review in this sense is an authority of the court to investigate the constitutionality of the actions and procedures of government agencies and department, and declaring them as unconstitutional or invalid if they are in violation or contradiction of the basic principles of the Constitution.

Such an administration of Judiciary has recently evolved in three dimensions, the first aspect is, to ensure the impartiality of the legislative and executive branches. The second aspect is, the protection of constitutionally guaranteed fundamental rights of citizens, and the third aspect being, the decision on the issues of legislative capacity existing between the center and the states.

Classification of Judicial Review:

  1. Review of Judicial Decisions:
    Reviewing or Examining a court's decision basically refers to examining it in such a way to determine whether the Supreme Court's decision was correct or not. In simple terms, it also refers to the court's authority to determine the constitutionality of the measures taken by state, federal legislatures and courts.
  2. Review of Legislative Actions:
    Article13 of the Indian constitution, talks about the judicial review of all the enacted laws, and such an authority may promulgate unconstitutional laws, regulations, statutes, ordinances, rules, and ordinances, which granted to the High Courts and Supreme Court of India. All those actions which violate the Fundamental Rights or other important provisions of the constitution, are declared as void and it is declared to be unlawful. We can trace the marks of judicial review of the legislative actions in the landmark cases like; I. C. Golaknath and Others. v. State of Punjab and Another. 1967; Kesavananda Bharti and Others. v. State of Kerala and Another, 1973.
  3. Review of Administrative Actions:
    The actions carried out, by authorities under the administrative law are understood as administrative actions. It is a lawful action concerned with the conduct of the public administrative authorities. The constitutionality of the administrative action is verified by a test introduced by Lord Diplock, which was in the case of Council of Civil Services Union v. Minister of Civil Services 1984 The tests include:
    • Illegality:
      The acts and verdicts of the decision makers can be declared as illegal if they do not follow the law, or if they act beyond their stipulated powers.
    • Irrationality:
      The courts can also interfere for quashing any decision if they think that it is arbitrary, henceforth, making the move of the decision makers as "unreasonable" or "perverse"
    • Procedural Impropriety:
      The onus is on the authority to act impartially before taking and deciding any matter, since, any public body must not act unethically since, it amounts to the abuse of power.
Judicial review is necessary to maintain the superiority of the Constitution, which also ensures the prevention of abuse of power by the government and its departments. It maintains a balance between the central and state, and thus a federal balance is ensured. The judicial review provisions also protect the fundamental rights of citizens.

This provision guarantees the principle of judicial independence. Therefore, the concept of judicial review is of utmost importance and is therefore part of the basic structure of the Indian Constitution, as in the case of Minerva Mills Ltd. v. Indian Union and Others 1980. Therefore, in the end, it is correct to say that judicial review has grown to protect individuals' right to stop the use of arbitrary power and prevent false accusations.

Written By: Manav Puri, MIT-WPU, BBA. LLB. (Hons.), Pune.

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