The Constitution Is Silent on the Concept of Judicial Review

Concept of Judicial Review

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Judicial Review | Overview

Concept and Origin of Judicial Review
Judicial Perspective
Methods of Constitutional Review
Limitations to Judicial Review
Decision

Judicial Review can be defined as the judiciary's ability to review the legislation fabricated past the Parliament on the Constitution. It falls nether the ambit of Judicial Review. Presently, in our country, the Rule of Police is followed which makes the Constitution the supreme law of the country and stands taller than whatever other laws. Also, whatever statute which is not in consistency with the Supreme Law is held to be void.

Judicial Review creates a system of checks and balances between the Judiciary and the Legislature by giving the judiciary the power to review any police force made past the Parliament and further hold it to be void if it is not in consonance with the provisions of the Constitution.

There are two very crucial functions that judicial review sought to perform, beginning of legitimizing government action, and second, being protecting the constitution past being encroached by the government.

I. Concept and Origin of Judicial Review

While adopting the Constitution by the Elective Assembly in 1950, no particular provision stated the Constitution to exist the leading law of the state. Later on it was realised that a declaration of such nature was deemed to exist superfluous. In that location is a arrangement of administration of Powers between the States and the Union. Further, the 3 branches of the authorities, the judiciary, executive and the legislature, were differentiated in the powers and the jurisdiction they had. Nobody was expected to interfere with the functioning of the other bodies, as and so the distribution of powers volition hold no significance. Hence, the supremacy of Constitution has been regarded to be a part of the bones structure of the Indian Constitution, which cannot exist severed or destroyed even by the process of Constitutional amendments.[1]

Dissimilar to the provisions of the American Constitution, Article xiii of the Constitution of Bharat establishes for the provision of judicial review to maintain the sanctity of fundamental rights. Aslope, Articles 32 and 226 work in the enforceability of these rights. Judiciary is the only organ of the government that maintain fundamental rights and enforce the supremacy of the Constitution through the means of Judicial Review. Judicial review tin be a review regarding any acct or legislation just information technology is called Constitutional Review when it specifies itself with reviewing the Constitution.

One of the invaluable contributions of the American Constitution to the Indian Constitution is the concept of judicial review. Its origin tin can be traced back to the result of judicial judgement and has been live due to the constancy of sure conventions. Chief Justice Marshall of the American Supreme Court was instrumental in developing this concept. The inception of judicial review can be granted to the Marbury 5. Madison case[two] in which it was observed that "the constitution is either superior paramount law, unchangeable past ordinary means or it is on a level with ordinary legislative acts and similar other acts are alterable when the legislature shall please to change it." The power of the judiciary to examine the laws made by the legislature was laid downward in this example. If the court did find a constabulary to be in contravention to the principles of the Constitution, so it would be held ultra-vires.

The importance of Judicial Review is that they generate a network of checks and balances on the laws passed by the legislature. One more important characteristic of Constitutional review is that the higher courts can asses and review the judgements of the lower courts. Its aim is to protect private rights, create a balance of power in the regime and to secure equality for every private. The concept of ceremonious liberties would not be the same without the inclusion of judicial review.

There were numerous objectives while Judicial Review was formulated past Justice Marshall:

To propagate the concept of supremacy of the Constitution.
For maintaining federal equilibrium i.due east. remainder of ability betwixt states and the centre.
For the protection of the core fundamental rights of the individuals.

II. Judicial Perspective

The Apex Court has immensely widened the scope of judicial review with the case of Maneka Gandhi v. Wedlock of India[3]. The concept of natural justice was accepted past the court as a chief ingredient of police force thereby importing the American principle of "due process of law" into the Constitution of India.

The backbone which laid the foundation of the reviewing power of the Supreme Court was laid downward in the landmark judgement of A.Grand. Gopalan 5. State of Madras.[4] Not only the principle of judicial review was expanded, only at the aforementioned time, a ready of guidelines were evolved which ultimately would set up the design for the basic norms of judicial approach to be imbibed in the Constitution. It is a long march from "Gopalan" to "Golaknath" with respect to the scope of the judicial review, but as well with regard to the social impact of such review.

Golaknath[5], is one of the about significant cases where the Apex Courtroom opined that the Union Legislature has no correct to repudiate the Central rights that are granted by the Constitution through an amendment. It was thus instrumental in making the fundamental rights superior to the parliament and its constituent power. This was merely washed by using the power of judicial review.

As a consequence of the above cases, finally in March 1994, the Supreme Court in the example of S.R. Bommai v. Union of India[half-dozen], which is also famous by the proper noun of Assembly dissolution case, widened the scope of judicial review fifty-fifty further. Presently, judicial review (Constitutional review) is considered to be an essential element of the bones construction of the Indian Constitution.

3. Methods of Constitutional Review

A. Judicial Review

The notion of judicial review is not stated expressly in the Constitution. Still, it has been quite instrument in reviewing the laws and amendments brought to the Constitution. The Constitution has granted the Union Legislature the ability to amend the Constitution.[7] The principal questions that arise in this regard are, "Tin the fundamental rights be amended? Does the word 'law' in clause (2) of Commodity thirteen include a Constitutional Amendment for the purpose of judicial review?"

The reply to the question of whether a Constitutional Amendment is a 'law' nether Article xiii was given by the court in the case of Shankari Prasad 5. Union of India.[8] It was observed must only consider an ordinary police and an amendment fabricated to the constitution under will not fall inside the ambit of the law.

Golak Nath case reversed the decision by not accepting whatsoever distinction between "legislative" and "constituent" process. In order to remove the difficulty arisen from Golak Nath's case, the 24^th Ramble Subpoena was brought that declared that in Articles 13(4) and 368(3) , the process of alteration the Constitution is not 'constabulary' and naught contained in Article 13 shall be applicable to the amendments under Commodity 368.

Finally, in the case of Kehavanada Bharti[9], the Apex Court laid down the doctrine of "Basic Structure" and then that the basic philosophy of the Constitution could non exist hampered past the Legislature.

B. Political Review

The sovereignty described in terms of Parliament is termed as Parliamentary Sovereignty. At that place can be a ii-fold fashion to deal with this supremacy – one may give outright supremacy keeping the Legislative view or decision to the concluding say in issues of evacuating irksome shadows emerging out of trouble in constitutional agreement, and another view keeping or maintaining the parliamentary power in 1 territory while in unlike regions the job of parliament might be confined or restricted.

AV Dicey has been instrumental in interpreting Parliamentary sovereignty-

"The Principle of Parliamentary Sovereignty ways neither more or less than this: namely that Parliament thus defined has under the English Constitution, the right to make or unmake any police force whatever and further no person or torso is recognized past the law of England having a right to override or set aside the legislation of Parliament."

Dicey bestows supreme ability in the hands of Parliament for the enactment of laws on whatsoever bailiwick and not leap by the scrutiny of whatever authority. The judges are to only translate the law. Hence, Dicey disapproves the similarity between ordinary or fundamental laws. Information technology glorifies the supremacy of the Parliament and no law fabricated by the Parliament can either be challenged or amended by any other dominance.

Indian Parliament does not have the exact powers of supremacy similar that of the British Parliament. Information technology works under the guidance of the Constitution of India and the American concept of judicial review prevails, which creates a organization of checks on the Parliament and so that it does not go absolute. Therefore, Republic of india strikes a balance between judicial review and legislative activism by not giving the Parliament a supremacy over the Constitution of Bharat.

C. Diffuse Model

This model, commonly known as the American Model, is the most widespread model, in which all the courts of a nation review the constitutionality of the laws and legislation with the assistance of procedural guidelines. The decisions are taken identify inter parties only in such a model. And as a definite rule, the matters relating to the constitutionality of legislation is retroactive.

This system has been successful in inspiring various countries in South and Fundamental America, mainly existence pop with the federal countries. Several countries haven amended this system by introducing the European model likewise, making information technology a 'mixed-model' which is followed by Venezuela, Peru, Brazil among others.

The Diffuse organization has a provision in which proceeding is non brought upwards past the courtroom ex officio only on the footing of the party and the petition filed by it due to the violation of a legal right. This system focuses itself with diverse courts having the power and authorisation to determine on ramble validity of legislation and statutes and no particular courtroom has the absolute power to practise that.

D. Full-bodied Organization

This model of judicial review, which is as well called the European or the Austrian model is a organisation utilized by Ramble Courts that work in the review of the constitutionality of rules[ten]. These reviews are concluded in unique proceedings and all things considered, they are less across the board. This model emphasises on the decisions of the constitutional review element convey an erga omnes impact, in that capacity; they may circulate unconstitutional rules to exist nullified. These decisions have an ex nunc outcome with future genius outcomes. Nations similar Costa Rica, Chile, Austria and a few European nations like Germany have adopted this model.

This is a less mutual approach when information technology comes to courts reviewing the constitutional status of a statute. In this organization, in that location is a specific ramble review trunk which aims at amending and reviewing the provisions of the Constitution. The decisions of the review torso have an erga omnes consequence and the power to abolish unconstitutional statutes. Even though, the abolishment or the abrogation of the legislation happens only when the Court problems information technology.

Inspired by the European model, Guatemala introduced a ramble organisation of reviewing the constitution. Thus, the Constitutional Courtroom became supreme in having the power to determine the unconstitutionality of statutes.

E. Successive Review

Successive review, also known as Retrospective Review can be understood by looking at the provisions of Article xiii(1) of the Constitution. Commodity 13 expressly puts frontwards what otherwise would have been unsaid, i.e. the fundamental rights would concur supremacy over any other law if in that location is any inconsistency.

Commodity 13(1) deals with Pre-Constitutional laws, i.eastward. legislations that are in force at the fourth dimension of starting time of the Constitution. All laws in force, insofar as they are not in consonance with the fundamental rights, shall, become void to the extent of the inconsistency, from the date of implementation of the Constitution. They are considered void just if the competent courtroom hold them to exist void and in contravention of the principles of Constitution.

F. Anticipatory Review

As well known as prospective review, Article 13(2) deals with the future laws, i.e. laws enacted after the enactment of the Indian Constitution. This mean that the parliament is prohibited to brand whatever legislation which is in contravention of the primal rights enshrined in Part Three of the Constitution.

If a law is made is such contravention, so it shall exist void to such extent. This point was elucidated in the instance of State of Gujrat v. Ambika Mills Ltd.[11] Where Justice Mathew was of the stance that similar to a pre-constitutional law not beingness in contravention to the Constitution was held operative, likewise a post-constitutional law in the same regard would too be held operative. In the present case, the outcome that was raised regarding the validity of a law that abridges the primal rights of the citizens under Article 19(one)(f) to exist void or not.

Iv. Limitations to Judicial Review

Even afterward the vast jurisdiction of the Indian Courts to review legislation passed by the legislature, there are certain limitations to judicial review:

Detention without Charge or Trial and Procedure Established by Law:

Commodity 22 of the Indian Constitution makes a special instance to the major rights by approval the Union Parliament and Country Legislatures to make laws accommodating confinement without charge or preliminary of people considered as a danger to security or request.

The words 'procedure established by law' were explicit and information technology was trusted that they would non give any extension for legal veto against transforming enactment. Past excellence of what was talked near over, the extent of the legal survey in India isn't every bit wide as in the United States. The American Supreme Courtroom tin can announce any law unconstitutional on the footing of its not being in "due procedure of police force."

Announcement of Emergency

Some other impediment on the intensity of the Supreme Court is the Constitution'due south approval of procedures for emergency rule under conditions where national or country security is undermined. Under emergency rule, the forces of the national government, and specifically the forces of the official, over the state governments are definitely extended. Article 358 states that during the proclamation of Emergency under Article 352 the opportunities guaranteed by Commodity 19 are consequently suspended and would continue on being so far the time of emergency.

The banishment of rights guaranteed by Article 19 forth these lines evacuates limitation on the legislative and official forces of the country forced by the Constitution. If a police is made past the Land during this menstruum can't be tested on the criteria that they are conflicting with the rights guaranteed by Commodity 19.

Martial Law

Commodity 34 of the Constitution of India engages Parliament to reimburse by law whatsoever individual in the administration of the Centre or a Country, or some other individual in regard of any demonstration done past him in relation with the upkeep or rebuilding of lodge in any identify within the domain of India where Martial Law is in power. It tin besides approve any sentence passed, dispensed, relinquishment ordered or other human action done under Martial Police in such area.

Parliament tin practice the strength under Commodity 34 if they represent which the indemnity law is to be passed must be connected with the maintenance or restoration of social club and the act must take been done while Martial Law was in force.

V. Decision

Like to the case of the American Supreme Court, the Indian Apex Courtroom of India preserves the intensity of legal survey and this force has been conspicuously perceived past the constitution. Notwithstanding, we observe that its clout respective to 'legal audit' of application is more express than that of the Supreme Courtroom of America.

Even though the courts are equipped with the intensity of a legal survey, the equivalent can't be practised in a cocky-assertive style. On the off chance that the law-production intensity of parliament isn't boundless, the courts' capacity to survey the laws passed by parliament is likewise non boundless. The executive derives its powers from the constitution, like to various other organs of the government. They tin interpret and negate laws however they can't accept the police force-making capacity; nor would they be able to requite that work on any individual or arrangement other than the government or common councils. Nor does the court have the authority to concord some constitutional that is unconstitutional. One cannot observe sovereignty in the legislative or the executive, only only in the constitution itself.

[1] Kesavananda Bharti v. Land of Kerala, AIR 1973 SC 1461.

[two] two. Led.lx.

[3] 1978 AIR 597

[iv] 1950 AIR 27

[five] 1967 AIR 1643

[6] 1994 AIR 1918

[seven] The Constitution of India, Art. 368.

[8] AIR 1951 SC 458.

[9] AIR 1973 SC 1461

[10] Corrado 2005

[11] AIR 1974 SC 1300.

Meaning Of Law Nether Article xiii(Opens in a new browser tab)
Introduction to the Constitution of India, 1950(Opens in a new browser tab)

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