Judicial Review
It is the ultimate power of the Judiciary to determine the validity of a law or an order, which may be described as the powers of “judicial review”. It tests the constitutionality of the legislative acts and executive orders.
| Genesis of the Concept of Judicial Review |
| It was first introduced in the US Supreme Court in the case of Marbury v. Madison (1803). The principle of judicial review was established by Chief Justice John Marshall. It was an important addition to the “checks and balances” system created to prevent any one branch of the Government from becoming too powerful. In this, the power of the Supreme Court was established by limiting the power of the congressional by declaring the legislation unconstitutional. |
The constitutional provision of the Judicial review:
Article 13: It held that laws made by the Parliament after the commencement of the Constitution, if they infringe on fundamental rights, shall be declared null and void by the Court.
Article 32 provides the right to constitutional remedies, which means that a person has the right to move to the Supreme Court to get his fundamental rights protected.
Article 226 empowers the High Court to issue directions, orders or writs in the nature of habeas corpus, mandamus, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or any other purpose.
Purpose of the Judicial review:
- Supremacy of the Constitution: With the power of judicial review, the Supreme Court and High Court invalidate the laws that are ultra vires to the Constitution. Thus, it maintains the supremacy of the Constitution.
- Federal equilibrium: Judicial review helps maintain the federal balance in the polity of India as it restricts the encroachment of the Centre on the state
- Fundamental rights protection: Judicial review helps in the protection of the fundamental rights of the people by striking down the laws and executive orders that contradict the fundamental rights guaranteed by the Supreme Court.
- Maintains the rule of law: It upholds the principle that executive decisions are taken in accordance with the rule of law.
Feature of the Judicial review:
- Two principles that are followed for the judicial review are ‘due process of the law’ and ‘procedures established by laws. The Indian Constitution provides for the ‘procedure established by law’ and not ‘due process of law’ as in the USA. The Supreme Court of India follows the ‘procedure established by law while determining the constitutionality of a law. It examines whether the law has been validly enacted. It is not expected to go into its reasonability, suitability on policy implications, etc., as followed under ‘due process of law’. However, after the Menaka Gandh i case, due process of law has been accepted by the Supreme Court.
- It can be applied against the law when it is challenged before the Court. It can also be said that Sun Moto has not applied for Judicial review.
| What is Suo moto: Suo moto, a Latin expression meaning “on its movement,” is a major part of the legal framework in India. When any case takes up cases by their notice, without any petition being filed or interest being brought before them, it is then called Suo-moto. Some cases where Court can take Suo-moto action: Contempt of Court:For PIL The Supreme Court took various cases in the Covid pandemic, and the Supreme Court took Air pollution in Delhi. |
Benefits of the judicial review
Protection of the Constitution:
- Kesavananda Bharati v. State of Kerala (1973): In this case, the Supreme Court gave the doctrine of basic structure. In this aspect, the Parliament cannot amend the Constitution to destroy its basic structure or essential features of the Constitution. This landmark judgment played an important role in protecting the integrity of and preventing excessive amendments that could undermine its fundamental principles.
- Menaka Gandhi case: In this case, the Supreme Court expanded the scope of Article 21 (protection of life and personal liberty). In this judgement, the Supreme Court held that the right to personal liberty under Article 21 includes the right to travel abroad. In this judgement, the Supreme Court recognised the due process of law. Thus, the law must be fair, just and reasonable. Yhis will ensure that individuals’ rights are protected against arbitrary state action.
- In Minerva Mills’ case, the Supreme Court struck down section 4 of the 42nd Amendment Act, which would destroy the harmony of the Indian Constitution.
