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Judicial review

Presentation on Judicial Review to studied in many subjective Constitution, Administrative Law, Legislative Drafting etc.

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JUDICIAL REVIEW
Yusra Khatoon
B.ComLL.B.(H)
AmityUniversity,Uttar Pradesh
LucknowCampus
INTRODUCTION
 The Constitution is the supreme law of the land. It was also
referred as the “grundnorm” of the State by Hans Kelsen.
All the other laws derive their authority from the Constitution.
 As the jurist, HLA Hart puts it, the Constitution works as the
touchstone for all the other laws. The validity of other laws is
to be checked according to the Constitution.
 If the law in question is not in line with the principle
enshrined in the Constitution, then the law is to be declared
unconstitutional.
 Also the same parameter is used for executive actions as
well. the executives are also prohibited to make any decision
which is inconsistent with the basic norms of the
Constitution.
 The task to check the constitutionality of the laws and of
the executive actions is done by the Judiciary. This is
termed as the “Judicial Review”.
 Thus, judicial review is defined as “the power of the
court to determine whether the acts of legislature and
executive are consistent with the provisions of the
Constitution.”
 The concept of Judicial Review lies in the supremacy of
the Constitution of the land. Since the judiciary is the
guardian of the Constitution, thereby, it is under its purview
to check actions, which are inconsistent with the
Constitution.
 The tool of Judicial Review empowers the Judiciary to
strike down any action, which is in conflict with the
Constitution.
 This concept of Judicial Review is enshrined in Article 13
of the Indian Constitution, which provides that the law to
be enacted should be in line with the norm laid down in
the Constitution.
 Thus, giving the power of the judicial review to the
judiciary, Article 32 and 226 provide for the enforcement
of the fundamental rights enshrined in Part III of the
Constitution.
 Protection of the fundamental rights is insignificant and
meaningless unless the court has the power to protect
the same from the arbitrary violation.
 At this point, the power of the Judicial Review becomes
relevant. Through the Judicial Review, the court has
power to check the actions, which threatens to take
away or abridges any of the FRs.
HISTORICAL BACKGROUND
 Referring to the supremacy of the Parliament in England, the
judiciary did not have the power to review the acts passes by
it.
 In England, judicial review remained restricted to the
executive actions only.
 However, the concept of Judicial Review was carried by
Britain to its colonies as well. That’s why the Indian legal
system incorporates this principle.
 Similar was the situation in US, being the colony of Britain it
inherited the common law system. This common law system
provides the basis for the establishment of the concept of
Judicial Review in the USA.
 In the year 1803, it was for the first time the US Supreme
Court in Marbury v. Madison (1803) declared that the
legislative actions are also under the purview of judicial
review.
 The constitution of USA does not provide any provision for
the exercise of the power of the review by the judiciary.
 It is argued that through the case of Marbury the Court
assumed the power of judicial review in itself.
 According to Chief Justice Marshall (who headed the
bench in this case), “judicial review is the active
process of implementation of the rule of law, essential
for the preservation of a functional democracy”
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Judicial review

  • 2. INTRODUCTION  The Constitution is the supreme law of the land. It was also referred as the “grundnorm” of the State by Hans Kelsen. All the other laws derive their authority from the Constitution.  As the jurist, HLA Hart puts it, the Constitution works as the touchstone for all the other laws. The validity of other laws is to be checked according to the Constitution.  If the law in question is not in line with the principle enshrined in the Constitution, then the law is to be declared unconstitutional.  Also the same parameter is used for executive actions as well. the executives are also prohibited to make any decision which is inconsistent with the basic norms of the Constitution.
  • 3.  The task to check the constitutionality of the laws and of the executive actions is done by the Judiciary. This is termed as the “Judicial Review”.  Thus, judicial review is defined as “the power of the court to determine whether the acts of legislature and executive are consistent with the provisions of the Constitution.”  The concept of Judicial Review lies in the supremacy of the Constitution of the land. Since the judiciary is the guardian of the Constitution, thereby, it is under its purview to check actions, which are inconsistent with the Constitution.  The tool of Judicial Review empowers the Judiciary to strike down any action, which is in conflict with the Constitution.
  • 4.  This concept of Judicial Review is enshrined in Article 13 of the Indian Constitution, which provides that the law to be enacted should be in line with the norm laid down in the Constitution.  Thus, giving the power of the judicial review to the judiciary, Article 32 and 226 provide for the enforcement of the fundamental rights enshrined in Part III of the Constitution.  Protection of the fundamental rights is insignificant and meaningless unless the court has the power to protect the same from the arbitrary violation.  At this point, the power of the Judicial Review becomes relevant. Through the Judicial Review, the court has power to check the actions, which threatens to take away or abridges any of the FRs.
  • 5. HISTORICAL BACKGROUND  Referring to the supremacy of the Parliament in England, the judiciary did not have the power to review the acts passes by it.  In England, judicial review remained restricted to the executive actions only.  However, the concept of Judicial Review was carried by Britain to its colonies as well. That’s why the Indian legal system incorporates this principle.  Similar was the situation in US, being the colony of Britain it inherited the common law system. This common law system provides the basis for the establishment of the concept of Judicial Review in the USA.
  • 6.  In the year 1803, it was for the first time the US Supreme Court in Marbury v. Madison (1803) declared that the legislative actions are also under the purview of judicial review.  The constitution of USA does not provide any provision for the exercise of the power of the review by the judiciary.  It is argued that through the case of Marbury the Court assumed the power of judicial review in itself.  According to Chief Justice Marshall (who headed the bench in this case), “judicial review is the active process of implementation of the rule of law, essential for the preservation of a functional democracy”
  • 7. WHAT CAN COME UNDER THE HEAD OF JUDICIAL REVIEW  There is a presumption in favor of constitutionality  Where the validity of a statue is questioned and there are two interpretations, one of which would make the law valid, and the other void, the former must be preferred and the validity of the law be upheld.  The court will not decide a larger constitutional question than is required by the case before it.  The court will not hear an objection as to the constitutionality of a law by person whose rights are not affected by it.  The court shall not pronounce on the validity of an Act or part of an Act which has not been brought into force.
  • 8. JUDICIAL ACTIVISM – INDIAN APPROACH  Though India has a parliamentary form of government, the framers still went for the option of Judicial Review.  Seervai in his book Constitutional Law of India emphasized that the superiority of judicial assessment.  The constitution makers view Judicial review as the concept emerging from power of separation and rule of law.  Under Art. 226 & 227, the influence of judicial assessment, have been given to the high court and in Art. 32 & 136, the control of assessment has been given to the Supreme Court of India for the review of every aspect of the government and public functionaries.
  • 9. MECHANISMS AND OPPORTUNITY OF JUDICIAL REVIEW  In India, judicial review broadly covers three aspects – judicial review of legislative action, for judicial decision and of administrative action.  These facets of judicial review were pronounced by the SC in case of L. Chandra Kumar v. UOI, stating that the judges of higher court have to interpret legislation up to this end that the Constitutional values are not to be interrupted. To achieve this end, the judges have to keep in mind that the equilibrium of control, specified in the Constitution is not disturbed.
  • 10. CASES ON JUDICIAL REVIEW IN INDIA  The basic function of the courts is to adjudicate disputed between individuals and the state, between the states and the union and while so adjudicating, the courts may be required to interpret the provisions of the constitution and the laws, and the interpretation given by the Supreme Court becomes the law honored by all courts of the land( as provided in Art.141). There is no appeal against the judgment of the Supreme Court.  In Shankari Prasad vs. UOI, the 1st Amendment Act of 1951 was challenged before the SC on the ground that the said Act abridged the right to property and that it could not be done as there was a restriction on the amendment of the Fundamental Rights under Art.13(2)
  • 11.  The Supreme Court rejected the contention and unanimously held. "The terms of Article 368 are perfectly general and empower parliament to amend the constitution without any exception whatever.  In the context of Article 13, law must be taken to mean rules or regulations made in exercise of ordinary legislative power and amendments to the constitution made in exercise of constituent power, with the result that Article 13 (2) does not affect amendments made under Article 368.”  In Sajan Singh case (1960), the competence of the Parliament to enact 17th Amendment (proposing the definition of ‘estate’ under Article 31A) was challenged before the constitution bench of the SC on the ground that it violated the Fundamental Rights under Art. 31(A)
  • 12.  Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when article 368 confers on parliament the right to amend the constitution the power in question can be exercised over all the provisions of the constitution and it would be unreasonable about to hold that the word law' in article 13 (2) takes in amendment Acts passed under article 368.  Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and could not be struck down by the application of article 13 (2)  The historic case of Golak Nath v. State of Punjab (AIR 1967 SC 1643) was heard by a special bench of 11 judges as the validity of three constitutional amendments (1st (insertion of Article 31A), 4th (Restrictions on property rights and inclusion of related bills in schedule 9) and 17th ( to secure constitutional validity of acquisition of estates and place land acquisition laws in schedule 9) was challenged)
  • 13.  The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter III of the constitution.  The SC made the following observations – i. Article 368 only provides a procedure to be followed regarding amendment of the constitution. ii. Article 368 does not contain the actual power to amend the constitution iii. The expression 'law' as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power.
  • 14. iv. The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) if it takes away or abridges the rights conferred by part III of the constitution. v. The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution vi. Parliament will have no power from the days of the decision to amend any of the provisions of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined there in.
  • 15.  Also the Constitutional validity of Constitutional Amendment 25th Act, 1971 which inserted Article 31C in the Indian Constitution was challenged in the landmark case of Kesavananda Bharti v. State of Kerala.  The amendment restricted the property rights and compensation in case the state takes over the private property.  However, the SC quashed a part of Article 31C to the extent it took away the power of judicial review.  In Minerva Mills v. UOI (1980) the SC by a majority decision struck down section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over Part III of the Constitution on the ground that Part III & IV of the constitution are equally important and absolute primacy of one over the other is not permissible as that would disturb the harmony of the Constitution.  Thus, SC made it very that anything that destroys the balance between Part III &IV will ipso facto destroy the essential element of the basic structure of the Constitution.
  • 16. EXTENT OF JUDICIAL REVIEW IN INDIA  From 1950 to 1975, the judiciary in the constitutional system made a very important position.  Indian Supreme Court on a series of allegations of violation of basic human rights under the Constitution of India conducted a judicial review of cases.  Judicial review of legislation from the early review extends to all acts of government or administration  It can be said that in addition to specific case, the Court exercise their restraint of judicial power, judicial review has almost no borders
  • 17. JUDICIAL REVIEW OF LEGISLATIVE ACTION  The powers to review legislation are vested by way of the S.C. and state’s higher court. The judicial review of legislation is to ensure the consistency of the legislation with the provisions of the Constitution. If not, the legislation is overruled by the judiciary.  In State of Madras v. G. Row (1952), case the S.C. has highlighted legal position in express terms. The court stated that the Constitution of India has contained express provision of the judicial review for legislation. It is the responsibility of the Indian Supreme Court to work as protector of fundamental rights for the citizen of India. The powers as protector of citizens’ rights are inbuilt with the power of the judicial review.
  • 18. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION  Administrative action is the residuary action which is neither legislative nor judicial.  It is concerned with the treatment of a particular situation and is devoid of generality. It has no procedural obligations of collecting evidence and weighing argument. It is based on subjective satisfaction where decision is based on policy and expediency.  However, it does not mean that the principles of natural justice can be ignored completely when the authority is exercising “administrative powers”  Unless the statute provides otherwise, a minimum of the principles of natural justice must always be observed depending on the fact situation of each case.
  • 19.  In case A.K. Kraipak v. Union of India , the Court was of the view that in order to determine whether the action of the administrative authority is quasi-judicial or administrative, one has to see the nature of power conferred, to whom power is given, the framework within which power is conferred and the consequences.  Administrative action may be statutory, having the force of law, or non statutory, devoid of such legal force  The bulk of the administrative action is statutory because a statute or the Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing directions to subordinates not having the force of law, but its violation may be visited with disciplinary action.
  • 20. EXPANSION OF JUDICIAL REVIEW THROUGH JUDICIAL ACTIVISM  After the draconian exposition of power by the Executive and the Legislature during Emergency the expectations of the public soared high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions.  As a result of which, the court started reviewing various legislations on Suo Motu basis.  Also by expanding the horizons of Right to Life in Maneka Gandhi case, the SC brought within the ambit of constitutional provisions, the right to enforce the human rights of the citizens and also sought to bring the indian law in conformity with the global trends in human rights jurisprudence.
  • 21.  This was done by removing the concept of Locus Standi and making justice within the approach of masses through the concept of Public Interest Litigation or Social Action Litigation  During the Eighties and the first half of the Nineties, the Court have broken there shackle’s and moved much ahead from being a mere legal institution, its decisions have tremendous social, political and economic ramifications.  Time and again, it has sought to interpret constitutional provisions and the objectives sought to be achieved by it and directed the executive to comply with its orders.  PIL was a manifestation of judicial activism and has introduce a new dimension regarding judiciary’s involvement in public adminstration.