Power Of Judicial Review

• Power Of Judicial Review
• admin
• 10 Jul, 2023

 INTRODUCTION:

 Law plays a very vital role in the idea of a Civilized State. It is the idea on which a Civilized State lays its foundation. Furthermore, for the better formation of a Welfare and Civilized State, the State should be equipped with the laws which can help the nation grow and work for the welfare of people. This idea of having a law that favors the growth of its Citizens becomes a more prominent notion in a ‘Democratic setup.’ So, it becomes even more important that such a vital responsibility and power of ‘making laws’ should not rest in the hand of a single body without any check and balance system in place. Therefore, the Constitution makers of our Country ensured that neither the State Legislature nor the Parliament becomes the ultimate ruler to decide the faith of Law and Order, thereby vested the ‘Power of Judicial Review’ in the Higher Judiciary. The article talks about the nuances of the power of Judicial Review with relevant case laws.

WHAT IS JUDICIAL REVIEW:

 Judicial Review refers to the 'Power' of the 'Judicial Body' to review a law on the touchstone of the ground norm of the land, i.e., 'The Constitution.' In the larger sense, it means the vested power of the 'Higher Judiciary,' I.e., High Courts and Supreme Court, to strike down any law passed by the legislature if it does not conform to Constitutional morality. The power of judicial Review has been enshrined in the Constitution in Articles 13, 32-36, 143, 226, and Article 372. However, a two-folded classification has been done;

• Article 372(1), which talks about pre-Constitutional laws- Declares all the laws which apply to India before the Constitution and are not in conformity with the Constitution to be kept in 'Suspended Animation.'
• Article 13(2), which talks about laws made by Parliament after the commencement of the Constitution- Declares that all those laws made by Parliament which are not in conformity with the Constitution shall be adjudged null and void
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CLASSIFICATION OF JUDICIAL REVIEW: Judicial Review can be classified into three broad parameters;

 1) Review of Executive Orders- Ensures that the executive does overuse or misuse its power and works in conformity with the law of the land.

 2) Review of Legislative Actions- Ensures that no law is implemented which is ultra vires the Constitution.

 3) Review of Judicial Decisions- Ensures to formulate a progressive and ever going judiciary.

THE WORKING OF JUDICIAL REVIEW: As the name suggests, ‘judicial’ means ‘judiciary,’ and ‘review’ means ‘revisiting.’ It is the revisiting of a law by the judiciary to determine whether the law conforms with the fundamental values of the ground norm of the country. Judicial review is possible of law, order, delegated legislation, policy. Judicial Review is usually performed in two broad contexts;

1. Firstly, whether the said legislation conforms with the Constitution, i.e., it should not be breaching any express provision of the Constitution.

2. Secondly, whether said legislation was enacted by following the proper process and ensuring due diligence was performed.

It is important here to note that not all orders, laws are to go for judicial review instead, it is only those laws that per se seem to be violative of the basic principle of the constitution that are questioned before the Court of Laws to go for Judicial Review

PROS OF JUDICIAL REVIEW: The fact that judicial review has been a part of the Constitution and later a part of the Basic Structure itself shows the importance of having it in a democratic setup. The reasons for stretching the importance on judicial review are

1. It helps safeguard the fundamental rights of the citizens as it ensures that no law is undertaken by the legislature, which violates the fundamental rights of the citizens.

 2. It helps ensure the judiciary's independence as by way of judicial review, courts can decide on the implementation of a law.

 3. It helps ensure that the legislature stays neutral by putting up checks and balnces on its power to make laws for the country.

4. It helps ensure that the executive does not turn tyrant by calling up the law if it fails to achieve its desired goals at the time of implantation.

5. It helps ensure the ‘Supremacy of the Constitution’ and reaffirms that the sole sovereign in India is only ‘The Constitution.’

 6. It helps strengthen the federal structure by balancing the Centre-State relations.

CONS OF JUDICIAL REVIEW: As every coin has two sides in a similar manner, the judicial review also has a downside, but the importance of having judicial review in the first place overpowers its negative. The cons of having judicial review are;

 1. It brings uncertainty to the law as it could be challenged, and the result of such a challenge could be a striking down of the law. For instance, adultery was de[1]criminalized by the Honourable Supreme Court in the case of Joseph Shine v. Union of India1 but till 2018 adultery was very much an offence.

2. It may also result in judicial overreach, wherein the court exercises more power than it holds.

3. It is difficult for the legislature to make law as there stand all chances that the law might be struck down.

JUDICIAL REVIEW OF ORDINANCES: The legislature makes the law, but when the House is not in Session, the Indian Constitution provides special power through Article 123 and Article 213 to the Governors of States and the President to formulate ordinances when and as needed by the respective governments. This special power helps in the effective governance of the State when the House is not in Session, or a law is needed immediately for the smooth functioning of the State. However, the ordinance is not a law and therefore has to be passed by the House on its sitting. The demonetization in 2016, wherein the government withdrew 500- and 100-rupee notes, was also done by formulating an ordinance by the President as the House was not in Session at the time. So, knowing whether judicial review is a possible ordinance becomes prominent. The Honourable Supreme Court, in the case of AK Roy V. Union of India, 19822 has held that the President’s power to formulate an ordinance is not a subject for judicial review. However, the same question is before the Honourable Supreme Court in the latest case of a challenge brought in by the Delhi Government to the Centre’s ordinance. It is also important to note that an ordinance when passed by the legislature, becomes a law and therefore is open for judicial scrutiny.

THE PLACE FOR JUDICIAL REVIEW: Judicial Review is possible in the following circumstances;

1. Jurisdiction is one of the most important arenas for Judicial Review, mostly the take of the Court is asked for on the ground of jurisdiction, whether it be exceeding the jurisdiction or lack of jurisdiction. The Central Government in India can make laws on Union List, the State Legislature on State List, and both can make laws on the subject mentioned in the Concurrent List; due to such a classification, it is often that both the Centre and State government makes different laws and here is where judicial Review has seemed.
2. Constitutional Amendment is often bound to go for Judicial Review as it is the ground norm of the country, and any amendment to it results in significant shuffles at the ground most level. There are numerous cases where Constitutional Amendment has been called for Shankari Prasad V. Union of India3 , Keshvananda Bharti V Union of India4 , and IC Golaknath V. State of Punjab5 .
3. Not following the proper set course for implementing a law is another ground where Judicial Review is possible.

EXCLUSION OF JUDICIAL REVIEW: There are following types of exclusion possible for judicial review;

• ? Unconditional exclusion
• ? Conditional exclusion
• ? Implied or Express exclusion
• ? Partial or Total Exclusion

 CONCLUSION AND THE WAY FORWARD:

Judicial review is an integral part of the democratic setup prevailing in India. It ensures that the two pillars of democracy do not turn tyrant and authoritative; it also provides a unified solution to the conflict on the point of law between the Central Government and the State Legislature when and as it arises. However, the success of Judicial Review has not been unmonitored to date. It has also claimed for itself the valid criticism, the most prominent one being the fear of ‘Judicial Overreach,’ but after having faced all these hurdles, the judicial review provides the best solution when constitutional morality is breached, it reminds those in power that the ultimate sovereign is the constitution, and hence it could be quickly concluded that ‘Power of Judicial Review’ is must if we are to keep our Constitutional spirit.