This Blog is written by
Mr. Priyanshu Srivastva, Student of Lloyd Law College, Greater Noida &
Miss. Shireen Mirza, Student of Lloyd Law College, Greater Noida.
The constitution is the supreme law of every country. It is the “grandmom” of the
state and every other law of the country derive from the constitution.
According to Prof H.L.A Hart, constitution work as a touchstone to all the laws.
We can also see that the validity of all the laws was checked by the
constitution, if there is a question arises on the constitutional validity of any
law which enshrined in the constitution, then that law is declared to be
unconstitutional. And that parameter was also used for executive actions.
The constitution also prohibits executives to make any decision that violets
the basic norms and important principles of the constitution. And the tasks for
checking the constitutionality of the laws were done by the judiciary. This we
can term as “Judicial Review”. Thus we can define judicial review as ‘it is
the power of the court to determine whether the acts of legislature and executive
are in a consistent way with the Constitution and its values”.
According to Edward S.Corwin, judicial review is the power and duty of the
courts to disallow all legislative or executive acts of either the central or
the state government, which in the court’s opinion transgressed the
constitution.
Judicial review is not an exclusive expression used in constitutional
law; its literal meaning is the revision of decree or sentence of inferior
court by a superior court. The power of
judicial review is one of the basic features of our constitution. The principle
of judicial review lies under Article 13
of the Constitution of India. This article said that law to be made should in
line with the norms which were laid down by the Constitution of India. This
article provides the full power of judicial review to the judiciary.
Historical Background of Judicial Review
The
concept of judicial review was started from the United States of America; it was a
result of continuous thinking and growth. As we can also say it that the
concept of judicial review had the heritage of Plato and Aristotle, Inklings of
Magana Carta and Cockeian theory of
common rights. Marbury V. Madison
(1803), was a landmark case from where the judicial review came into
existence where the court said, “that the legislative actions are under the
purview of the judicial review.”
But before the USA the concept was carried by Britishers to their colonies but the
concept of judicial review was not fully used because their parliament is
supreme and the judiciary was not supposed to review any acts of the parliament. As
we above mentioned the concept was carried by the Britishers to their colonies,
so the presence of the concept of judicial review must be in our Indian legal
system. Similar it was the situation of the United States; being a colony of
Britain it also inherited the common law system and provided the basic establishment
of the concept of the judicial review in the United States. Taking a note from England and the United States
our constitution framers adopted the parliamentary form of government and also
the concept of judicial review.
Judicial Review in India
The judiciary plays an important role as a protector that our constitution-makers gave.
They try to undo those harms that are being done by legislature and executive,
also tried to provide everything which was given in the constitution under
Directive Principles of State Policy. All these were possible by the power of
judicial review. The principal or the concept of judicial review became an
essential feature of our Indian constitution. The power of judicial review is
incorporated under Article 226 and Article 227 of the constitution for the
concern of High Courts and in regards to Supreme Court Article 32 and Article 136 of the Constitution.
Judicial Review as a Part of Basic Structure
In the case of Keshavanda Bharti V. State of Kerala, the Apex court propounded the doctrine of basic structure which said that the legislature can amend the
constitution but they cannot change the constitution’s basic structure. S.M.
Sikri, C.J mentioned five basic structures
- Supremacy of
Constitution
- Democratic and Republic
form of Government
- Secular character of
constitution
- Separation of Powers
- Federal structure
He observed that
these basic features are easily discernible not only from the Preamble but also
from the whole scheme of the Constitution. He added that the structure was
built on the basic foundation of dignity and freedom of the individual which
could not by any form of the amendment be destroyed. It was also observed in that
case that the above are only illustrative and not exhaustive of all the
limitations on the power of amendment of the Constitution.
In Indira Nehru Gandhi v. Raj Narain held that Judicial Review in election
disputes was not a compulsion as it is not a part of the basic structure.
While in the case of S.P. Sampath Kumar V. Union of India Justice Bhagwati
relied on Minerva Mills case and held that it was settled that judicial review
was a basic and essential feature of the constitution and if the power of judicial
review taken away the constitution ceases what it was to be. In Sampath Kumar, the apex court also declared that law which was made under Article 323-A (1)
were to exclude the jurisdiction of the High Court under Articles 226 and
227 without setting up an effective alternative institutional mechanism or
arrangement for judicial review, it would be violative of the basic structure
and hence outside the constituent power of Parliament.
In the case of L.
Chandra Kumar V. Union of India seven judges bench held that; the judicial
review power over the legislative action is vested in the High Court’s under
Article 226 and in the Supreme Court under Article 32 of the constitution is an essential and integral feature of the constitution constituting part of the basic
structure.
Conclusion
The growth of judicial review is the inevitable
response of the judiciary to ensure proper checks on the exercising of public
power. Growing awareness of the rights that belongs to the people; the trend
of judicial scrutiny of every significant action of the government. There is always
a general perception that the judiciary in our country has been active in the expansion of the concept of judicial review. The judicial review is highly
complex and developing. In Kesavananda Bharti case, the apex court
interpreted the scope and meaning of the judicial review. So from the above, we came to the conclusion that the power of judicial review is a part of the basic
structure of our constitution and representative democracy as an expression of the
people’s will.
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