News Highlight
- The provision of the Judicial Review should be reassessed so that it will not affect the basic separation of power: the Vice President mentioned.
Key Takeaway
- All the laws, orders, bye-laws, ordinances, constitutional amendments, and other notifications are subject to judicial review.
Judicial Review
- About
- Judicial Review is a court proceeding in which a judge examines the legality of a decision or action made by an authority.
- If they determine that a law or ordinance violates the Indian Constitution, they can declare it unconstitutional.
- While the Ninth Schedule provides the law with a “safe harbour” from constitutional review.
- The compulsion of the constitutional review was described as a fundamental right in Part III of Article 13 of the Indian Constitution.
- In India, judicial review is guided by the principle of ‘Procedure established by law as stated in Article 21 of the Indian Constitution.
- Although the phrase “judicial review” does not appear in the Indian Constitution, it is clearly defined in several Articles.
- Historical Background
- The doctrine of judicial review is a unique innovation of the American Supreme Court.
- In India, it was deemed a fundamental feature of the Constitution in the 1975 case of Indira Gandhi vs Raj Narain.
- Who has the power to execute it?
- In India, both the High Courts and the Supreme Court can conduct judicial reviews.
- Judicial review powers are granted to courts under Articles 226 and 227 of the Indian Constitution for High Courts and Articles 32 and 136 for the Supreme Court.
- Even though the various organs of government in India have the principle of separation of powers, namely the executive, legislative, and judiciary, the judiciary is given the authority to review the actions of the other two organs.
- Constitutional Provisions for Judicial Review
- The primary goals of judicial review are to protect public rights and to implement fundamental rights.
- If a conflict arises between the State and the Center, Article 246 and Schedule 7 of the Constitution have established a working zone for formulating regulations between the two.
- When can the court apply it?
- Suppose two interpretations of state law are possible, with the first leading to the law being under the Constitution and the second leading to the law conflicting with the Constitution. The court must prefer the first interpretation and validate the law in that case.
- Usually, the court will not apply the constitutional review to a law that has not been made legally enforceable.
- Usually, the court will not use judicial review, Suo Moto. It will not use it until a petition to challenge the constitutionality of a law is filed.
- Significance
- They ensure constitutional government in India by keeping the Union and State governments within their respective jurisdictional realms.
- Most importantly, it has protected citizens’ freedom by protecting their Fundamental Rights from arbitrary legislative and executive intervention.
- It prevents executive tyranny.
- It is an absolute requirement for preserving the Constitution’s supremacy.
- It also aids in the detection of abuses of power by the legislature and the executive.
- Important judgements
- Shankari Prasad v. Union of India
- Golaknath v. State of Punjab
- Minerva Mills case
- Exclusions
- Exclusion of judicial review means the situations in which the high courts and Supreme Court’s writ-exercising powers are limited.
- Article 74(2) of the Indian Constitution excludes judicial review and an ouster provision.
- According to Article 74(2), no court shall inquire whether any and, if so, what kind of advice was given to the President by Ministers.
- The decision on disqualifications of members is vested in the President under Article 103 on the grounds of Article 102, and such judgements are absolute.
Conclusion
- The judicial review is one of the most powerful processes in the Indian Constitution. This philosophy originated in India and is explicitly supported by the Indian Constitution. Its procedure safeguards the Constitution’s fundamental rights.
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Content Source: The Hindu