Thursday, March 18, 2010
Friday, March 12, 2010
NTIONS OF JUDICIAL REVIEW 2.1 Notions–
As per Britannica Encyclopedia Judicial Review means examination of the actions of the legislative, executive, and administrative branches of Government, by the Constitutional courts, to ensure those actions conform to the provisions of the Constitution. Actions that do not conform as above are unconstitutional and therefore null and void. Right to life and Personal liberty, Due process of law, Equal protection and equality before law, freedom of religion, freedom of speech and right of privacy are the subject matter of judicial Review. In India, the Supreme Court and High Courts are entrusted with the powers of judicial Review, enabling them to declare, unconstitutional legislation or acts of the executive, as void.
Meaning in General Law Former C.J.I, Dr. A.S. Anand explained that JUDICAL REVIEW is not an expression exclusively used in Constitutional law. Literally, it meant the revision of the decree or sentence of a sub ordinate court by a superior court. Under general law, it works through the remedies of appeal, revision and the like, as prescribed by the procedural law of the land. Meaning in Public Law Judicial Review has, however, a more technical significance in public law, particularly in countries having written Constitutions. In such countries it means that courts have the power of testing the validity of the legislature as well as other Governmental actions. Checks and Balances The necessity of empowering the courts to declare a statute unconstitutional arises not because the Judiciary is to be made Supreme but only because a system of checks and balances between the legislature and the executive on one hand and the Judiciary on the other hand provides the means by which mistakes committed by one organ of the State are corrected by the other and VICE VERSA. The duty of the judiciary is to consider and decide whether a particular statute accords or conflicts with the Constitution and make a declaration accordingly. The duty of the Judiciary is simply to give effect to the legislative policy of the state in the light of the policy of the Construction. Scope Dr. A.S. Anand, former C.J.I., has observed that the scope of the Judicial Review is available in three specific areas:- (i) Judicial Review of Legislative Action. (ii) Judicial Review of Executive/Administrative Action. (iii) Judicial Review of Judicial Action. Basic Structure Judicial Review is an essential element of the basic structure of Constitution of India as affirmed by the Supreme Court in Indira Nehru Gandhi V. Raj Narayan, AIR 1975 SC 2299, Judicial Review is the power given to High Courts and Supreme Court to scrutinize legislative and administrative actions and strike down Constitutionally offending ventures. Constitutional Provisions Articles 13, 32, 226 of the Constitution. Articles 13 Article 13 of the Constitution which provides that all laws made in contravention of fundamental rights shall be void to the extent of such contravention. The Judiciary has been conferred power of judicial review to decide about the validity of laws made by the parliament/ State Assemblies. Article 32 Article 32 (2) of the Constitution postulates that the Supreme Court shall have power to issue directions or orders or writs, for the enforcement of any of the rights conferred by part III of the Constitution. Article 226 Every High Court shall have power within its jurisdiction, to issue to any person or authority or any Government, within those territories directions, orders or writs, for the enforcement of any of the rights conferred by part III of the Constitution and for any other purpose. These powers enable the Supreme Court and every High Court to exercise power of judicial review and Article 13 gives teeth to strike down such actions of the Executive or Legislature which contravenes fundamental rights. Review of Constitutional amendment In Keshavanand Bharti V. State of Kerala, AIR 1973 SC 1461, the Apex Court held that the Supreme Court of India can review even a Constitutional amendment and strike it down if it undermines the basic structure of the Constitution. Writ Jurisdiction Dr. B.R. Ambedkar defended the provisions of judicial Review and particularly for the writ jurisdiction that gives quick relief against the violation of fundamental rights, said to be the heart of the Constitution, the very soul of it. Essential for the Rule of Law Judicial Review is an essential component of the rule of law, which is a basic feature of the Indian Constitution. The essence of Judicial Review is a Constitutional fundamental. Every State action has to be tested on the anvil of the rule of law and that exercise is performed, when occasion arises by reason of a doubt raised in that behalf, by the courts. Courts must have to regard the Constitution, and Constitution is superior to any ordinary act. Fundamental Rights Former judge of the Supreme Court, H. R. Khanna, emphasized in Kesavanand Bharti, v. State of Kerala, AIR 1973 SC 1461, that - As long 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 those rights are not contravened. …………… Judicial Review has thus become an integral part of our Constitutional system. Rights, without Remedies? In Minerva Mills V. UNION OF INDIA, AIR 1980 SC 1789 Chandrachud, former C.J.I, observed that it is the function of judges to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution then becomes uncontrolled. Therefore, the power of Judicial Review is an integral and essential part of our Constitution and is unquestionably is a part of basic structure of the Constitution. It can’t be taken away A bench of 7 Judges , in L. Chandra Kumar V. UNION OF INDIA, AIR 1997 SC 1125 , the Apex Court has held that the power of Judicial Review over legislative action vested in the High Court Under Article 226 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Therefore the power of High Courts and Supreme Court to test the Constitutional validity of legislation can never be ousted or excluded. Power of Judicial review under articles 226 and 227 cannot be taken away even by a Constitutional amendment. Effect of the above Judgment The decision contrary in SAMPAT KUMAR was overruled in L. Chandra Kumar case. This landmark Judgment has prevention all future amendments to the constitution adversely affecting the power of judicial Review, conformed on the Supreme Court and High Courts. Theory of Reasonableness In Maneka Gandhi V. UNION OF INDIA AIR 1978 SC 597, the Apex Court held that the procedure contemplated by Article 21 must be ‘right, just, fair’ and not arbitrary; it must pass the test of reasonableness and procedure should be in conformity with the principles of natural justice. Theory of reasonableness is a new tool for testing a subject during the course of judicial review. Marbury v. Madison In case of Marbury v. Madison, [1803] for the first time the U.S. Supreme Court declared something "unconstitutional," and established the concept of “ judicial review” in (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government. Competency to enact Law In Union of India V. H.S. Dhillon AIR 1972 SC 1061 a Constitutional bench of 7 Judges held that – We have the three lists and a residuary power. In this context if a Central Act is challenged, as being beyond the legislative competence of Parliament, it is enough to enquire if it is a law with respect to matters or taxes enumerated in list – II. If it is not, no further question arises. Violation of fundamental Rights Judicial Review in cases concerning violation of human/ fundamental Rights have given a great relief to the humanity. Some significant cases may be cited as: to protection against Solitary Confinement as in Sunil Batra V. Delhi Administration (1978)4 SCC 494; the right not to be held in fetters as in Charles Sobhraj v. Suptd. Central Jail, (1978)4 SCC 104, the right against handcuffing as in Prem Shankar Shukla V. Delhi Admn. AIR 1980, 1535, the right against custodial violence as in Nilabati Behra v. State of Orissa (1993) 2 SCC 746, or the right of the arrestee as in D.K. Basu v. State of W.B. (1997)1 SCC 416; the right of the female employees not to be sexually harassed at their place of work as held in case of Vishanka v. State of Rajasthan, AIR 1997 SC 3011; and Apparel Export Promotion Council v. A.K. Chopra. AIR 1999 SC 625, are just a few pointers in that directions, need not multiply illustrations. Conclusion Dr. A.S. Anand former C.J.I. has rightly observed that – Under the scheme of the Constitution, the court has played its role effectively in acting as watchdog through judicial review. He further says that judicial review plays an important role as defender, guardian and protector of the Constitution. Constitutional Courts have the power of testing the validity of the legislature as well as other Governmental actions. The Supreme Court of India and High Courts can review even a Constitutional amendment and strike it down if it undermines the basic structure of the Constitution.
Meaning in General Law Former C.J.I, Dr. A.S. Anand explained that JUDICAL REVIEW is not an expression exclusively used in Constitutional law. Literally, it meant the revision of the decree or sentence of a sub ordinate court by a superior court. Under general law, it works through the remedies of appeal, revision and the like, as prescribed by the procedural law of the land. Meaning in Public Law Judicial Review has, however, a more technical significance in public law, particularly in countries having written Constitutions. In such countries it means that courts have the power of testing the validity of the legislature as well as other Governmental actions. Checks and Balances The necessity of empowering the courts to declare a statute unconstitutional arises not because the Judiciary is to be made Supreme but only because a system of checks and balances between the legislature and the executive on one hand and the Judiciary on the other hand provides the means by which mistakes committed by one organ of the State are corrected by the other and VICE VERSA. The duty of the judiciary is to consider and decide whether a particular statute accords or conflicts with the Constitution and make a declaration accordingly. The duty of the Judiciary is simply to give effect to the legislative policy of the state in the light of the policy of the Construction. Scope Dr. A.S. Anand, former C.J.I., has observed that the scope of the Judicial Review is available in three specific areas:- (i) Judicial Review of Legislative Action. (ii) Judicial Review of Executive/Administrative Action. (iii) Judicial Review of Judicial Action. Basic Structure Judicial Review is an essential element of the basic structure of Constitution of India as affirmed by the Supreme Court in Indira Nehru Gandhi V. Raj Narayan, AIR 1975 SC 2299, Judicial Review is the power given to High Courts and Supreme Court to scrutinize legislative and administrative actions and strike down Constitutionally offending ventures. Constitutional Provisions Articles 13, 32, 226 of the Constitution. Articles 13 Article 13 of the Constitution which provides that all laws made in contravention of fundamental rights shall be void to the extent of such contravention. The Judiciary has been conferred power of judicial review to decide about the validity of laws made by the parliament/ State Assemblies. Article 32 Article 32 (2) of the Constitution postulates that the Supreme Court shall have power to issue directions or orders or writs, for the enforcement of any of the rights conferred by part III of the Constitution. Article 226 Every High Court shall have power within its jurisdiction, to issue to any person or authority or any Government, within those territories directions, orders or writs, for the enforcement of any of the rights conferred by part III of the Constitution and for any other purpose. These powers enable the Supreme Court and every High Court to exercise power of judicial review and Article 13 gives teeth to strike down such actions of the Executive or Legislature which contravenes fundamental rights. Review of Constitutional amendment In Keshavanand Bharti V. State of Kerala, AIR 1973 SC 1461, the Apex Court held that the Supreme Court of India can review even a Constitutional amendment and strike it down if it undermines the basic structure of the Constitution. Writ Jurisdiction Dr. B.R. Ambedkar defended the provisions of judicial Review and particularly for the writ jurisdiction that gives quick relief against the violation of fundamental rights, said to be the heart of the Constitution, the very soul of it. Essential for the Rule of Law Judicial Review is an essential component of the rule of law, which is a basic feature of the Indian Constitution. The essence of Judicial Review is a Constitutional fundamental. Every State action has to be tested on the anvil of the rule of law and that exercise is performed, when occasion arises by reason of a doubt raised in that behalf, by the courts. Courts must have to regard the Constitution, and Constitution is superior to any ordinary act. Fundamental Rights Former judge of the Supreme Court, H. R. Khanna, emphasized in Kesavanand Bharti, v. State of Kerala, AIR 1973 SC 1461, that - As long 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 those rights are not contravened. …………… Judicial Review has thus become an integral part of our Constitutional system. Rights, without Remedies? In Minerva Mills V. UNION OF INDIA, AIR 1980 SC 1789 Chandrachud, former C.J.I, observed that it is the function of judges to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution then becomes uncontrolled. Therefore, the power of Judicial Review is an integral and essential part of our Constitution and is unquestionably is a part of basic structure of the Constitution. It can’t be taken away A bench of 7 Judges , in L. Chandra Kumar V. UNION OF INDIA, AIR 1997 SC 1125 , the Apex Court has held that the power of Judicial Review over legislative action vested in the High Court Under Article 226 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Therefore the power of High Courts and Supreme Court to test the Constitutional validity of legislation can never be ousted or excluded. Power of Judicial review under articles 226 and 227 cannot be taken away even by a Constitutional amendment. Effect of the above Judgment The decision contrary in SAMPAT KUMAR was overruled in L. Chandra Kumar case. This landmark Judgment has prevention all future amendments to the constitution adversely affecting the power of judicial Review, conformed on the Supreme Court and High Courts. Theory of Reasonableness In Maneka Gandhi V. UNION OF INDIA AIR 1978 SC 597, the Apex Court held that the procedure contemplated by Article 21 must be ‘right, just, fair’ and not arbitrary; it must pass the test of reasonableness and procedure should be in conformity with the principles of natural justice. Theory of reasonableness is a new tool for testing a subject during the course of judicial review. Marbury v. Madison In case of Marbury v. Madison, [1803] for the first time the U.S. Supreme Court declared something "unconstitutional," and established the concept of “ judicial review” in (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government. Competency to enact Law In Union of India V. H.S. Dhillon AIR 1972 SC 1061 a Constitutional bench of 7 Judges held that – We have the three lists and a residuary power. In this context if a Central Act is challenged, as being beyond the legislative competence of Parliament, it is enough to enquire if it is a law with respect to matters or taxes enumerated in list – II. If it is not, no further question arises. Violation of fundamental Rights Judicial Review in cases concerning violation of human/ fundamental Rights have given a great relief to the humanity. Some significant cases may be cited as: to protection against Solitary Confinement as in Sunil Batra V. Delhi Administration (1978)4 SCC 494; the right not to be held in fetters as in Charles Sobhraj v. Suptd. Central Jail, (1978)4 SCC 104, the right against handcuffing as in Prem Shankar Shukla V. Delhi Admn. AIR 1980, 1535, the right against custodial violence as in Nilabati Behra v. State of Orissa (1993) 2 SCC 746, or the right of the arrestee as in D.K. Basu v. State of W.B. (1997)1 SCC 416; the right of the female employees not to be sexually harassed at their place of work as held in case of Vishanka v. State of Rajasthan, AIR 1997 SC 3011; and Apparel Export Promotion Council v. A.K. Chopra. AIR 1999 SC 625, are just a few pointers in that directions, need not multiply illustrations. Conclusion Dr. A.S. Anand former C.J.I. has rightly observed that – Under the scheme of the Constitution, the court has played its role effectively in acting as watchdog through judicial review. He further says that judicial review plays an important role as defender, guardian and protector of the Constitution. Constitutional Courts have the power of testing the validity of the legislature as well as other Governmental actions. The Supreme Court of India and High Courts can review even a Constitutional amendment and strike it down if it undermines the basic structure of the Constitution.
Subscribe to:
Comments (Atom)