Author: Regamitha Radharaj, B.Com LL.B(hons) from The Tamilnadu Dr. Ambedkar law university, School of excellence in law.
INTRODUCTION
The court constitute a dispute resolving mechanism. The primary objective of the court is to settle dispute and dispense justice between one citizen and another. But this judicial review helps to resolve disputes between the individuals and the state and between the various organs. It is necessary to recognize judicial review as a necessary and basic requirement for the construction up of a novel civilization in order to safeguard rights and liberties.
MEANING OF JUDICIAL REVIEW
Judicial review is reviewed by the judge where the lawfulness of decision or action is correct, or there is no effective means of challenge, judicial review is available.
Article 13 Laws inconsistent with or in derogation of the fundamental rights
Under Article 13(2) The state shall not make any law which takes away or abridges the right conferred by this part and make any law made in contravention of this clause shall, to the extend to the contravention, be void and
Article 368 explains Power to amend the constitution and procedure therefor. Under this article 368(3) Nothing in article 13 shall apply to any amendment made under article, the judicial review in Indian constitution
In Shankari Prasad v UOI where the validity of 1st Constitutional amendment adding Article 31A and 31B was challenged.
The power of judicial review is vested in the Supreme court and high courts under Articles 32 and 226 of the constitution is an integral part and essential feature of the constitution, constituting a part of basic structure.
It is a courts power to review the actions of other branches of government, especially the courts power to invalidate legislative and executive actions as being unconstitutional.
HISTORICAL BACKGROUND OF JUDICIAL REVIEW
Britain:
In England the parliament is supreme, they don’t give any power to the judiciary to review their acts made by them. Though judiciary has expanded and stated clearly about the principle of strict liability in the case of Ryland vs Fletcher and also manufacturer of the goods owes the duty in Donoghue vs Stevenson
United states of America:
Being the colony of Britain, judicial review has somehow evolved in United States of America. They declared that the legislative actions are also under the purview of the judicial review. U.S.A doesn’t have any expressed provisions to exercise the power of judicial review. the US landmark case Marbury v Madison (1803) explains the concept of judicial review
India:
In the case of Kesavananda Bharati vs State of Kerala Salon as some fundamental rights exist and are a part of the constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these rights are not contravened, judicial review has thus become an integral part of our Constitutional system.
THREE ASPECTS OF JUDICIAL REVIEW
To protect the legality of the essential rights under Part III (Fundamental rights) of the Indian constitution
To authorize the neutrality of organizational achievement
Interrogation of public interest.
L. Chandra Kumar v. Union of India "that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure".
FACET OF JUDICIAL REVIEW IN INDIA
High court and Supreme Court both applies the judicial review
The concept of Judicial review is used by both the courts under the Article 32 and 226 entrusted in the constitution
Judicial review for both central and state laws.
The orders, ordinances, rules, constitutional amendments made by the state or centre, judicial review can be constructed.
A limitations
Judicial review is restricted to the laws incorporated under IX schedule of the constitution. In the IX schedule, out of 284 laws which are protected from judicial review.
It covers laws and not government issues.
Judicial review applies only to the question of law, it cannot be exercised in respect of political issues. This is also considered as constitutional review. If the court considered the alleged administrative actions is inconsistent, the court will declare it null and void.
Judicial review is not automatic.
This review can be only used when it has been challenged before the court of law, the Supreme Court does not have the power of judicial review in its own. There is no suo motto power for the supreme court to take cognizance of the action. The power of judicial review will come into place only when it is claimed by the parties to the case.
Principle of procedure established by law.
The court which it has been challenged should conduct one test, whether the law has been made accordance with procedure established by law, otherwise it would be null and void.
JUDICIAL REVIEW ON ADMINISTRATIVE ACTION
The expression “judicial review” has expanded its reputation since it has exercised it in much different form. Even after the 4TH amendment of the Constitution of India the court had the power to review compensation or the principles for fixing compensation with a view ensuring that it was the just equivalent of the value of property. Since parliament had used the word compensation even after the enactment of fourth amendment. It has no procedural obligations of collecting evidence and weighting argument. It is based on the subjective satisfaction, subjective satisfaction being a condition precedent for the exercise of the power of preventive detention.
It does not mean that administrative authorities are wholly immune by the judicial review, it made by facts of each case.
A.K. Kraipak vs. Union of India
The questions raised where the action of the administrative authority is administrative or quasi judicial in nature, to whom the power is given, the framework within which power is conferred and the consequences.
Issuing directions without the procedure established by law will be a violation and leads to a disciplinary action. The following points will be the grounds for judicial administrative action.
Illegality:
The court has the power to look into the issues that the public authorities not using their position out of their scope.
Irrationality:
This ground will help to look into the separation of powers entrusted in the democracy. The misuse of power should not be done by either of the wings of the democracy
Procedural impropriety:
The procedures entrusted under each wing should be followed by them while executing their duty towards the nation.
Proportionality.
The separation of powers should be in equal proportion that each wings of the democracy should have the same level of power in the while legislating, executing and making decisions.
CURRENT FRAMEWORK IN INDIA
The government should not interfere in administrative decisions until unless there is a violation in the constitution. The court should not interfere in the policy matters which are within the purview of the government unless it is shown to be contrary to law or inconsistent with the provisions of the constitution. Judicial review is not a matter of exclusion of judicial review but of judicial “Self-restraint”.
The functioning of the government is unthinkable without the judicial review entrusted in the constitution. The judiciary power of reviewing is often criticised as judicial overreach which generalization is misguided says Chief justice of India NV Ramana.
CONCLUSION
Judicial review is an important part of the constitution. Even though it has been taken from United Kingdom but creates an impact in the Indian constitution. It does not express defined under constitution but still visible in every page of the constitution. To create more laws and legislate with clarity judicial review is needed.
REFERENCES
INDIAN CONSTITUTIONAL LAW, MP JAIN, EIGHTH EDITION, LEXIS NEXIS
PRINCIPLES OF ADMINISTRATIVE LAW, MP JAIN AND SN JAIN, LEXIS NEXIS