Judicial Review

 JUDICIAL REVIEW IN INDIA 

BY NUPUR GARG 

INTRODUCTION 

judicial review, power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. The institution of judicial review in this sense depends upon the existence of a written constitution.

Under Article 13 of the Indian Constitution, the compulsion of judicial review was described in fundamental rights in Part III. It is stated that the State or the Union shall not make such rules that takes away or abridges the essential rights of the people. If any law made by the Parliament or the State Legislature contravenes the provisions of this Article, shall be void.

In India, three aspects are covered by judicial review that are as follows:

1. Judicial review of legislative action

2. Judicial review for judicial decision

3. Judicial review of administrative action

These facets of judicial review were pronounced by the Supreme Court of India in case of L. Chandra Kumar v. Union of India, 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.

FEATURES 

1. Power of judicial review can be exercised by both the Supreme Court and High Courts: 

Under Article 226 a person can approach the High Court for violation of any fundamental right or for any legal right. Also, under Article 32 a person can move to the Supreme Court for any violation of the fundamental right or for a question of law. But the final power to interpret the constitution lies with the apex court i.e. Supreme Court. The Supreme Court is the highest court of the land and its decisions are binding all over the country.

2. Judicial Review of both state and central laws: 

Laws made by centre and state both are the subject to the judicial review. All the laws, order, bye-laws, ordinance and constitutional amendments and all other notifications are subject to judicial review which are included in Article 13(3) of the constitution of India. 

3. Judicial review is not automatically applied:

The concept of judicial review needs to be attracted and applied. The Supreme court cannot itself apply for judicial review. It can be used only when a question of law or rule is challenged before the Hon’ble court. 

4. Principle of Procedure established by law:

Judicial Review is governed by the principle of “Procedure established by law” as given in Article 21 of the Indian Constitution. The law has to pass the test of constitutionality if it qualifies it can be made a law. On the contrary, the court can declare it null and void.   

CASE LAWS 

Shankari Prasad v. Union of India

It was held by six judge bench, five judges not agreed to amending the essential rights under the Indian Constitution. However, in case of Keshavanand Bharti v. state of Kerala where six judges out of seven judges held that Parliament modifying influence has and at all portion of the Constitution can be amended and over ruled the Golaknath case. The Supreme Court held that the essential rights cannot be modified in such a method, which will touch the elementary construction of the Constitution.

CONCLUSION 

Here in India we have adopted the concept of Separation of power so we cannot assume the power of judicial review in full extended form. If the courts presume full and arbitrary power of judicial review it will lead to the poor performance of work by all the organs of government.