Updated: Feb 4, 2021
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NOTES ON JUDICIAL REVIEW | CONSTITUTIONAL LAW
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ORIGIN OF DOCTRINE : CASE LAW | Marbury V. Madison : Court said “the legislature has no authority to make laws repugnant to the constitution and in the case of constitutional violation the court has absolute and inherent rights to invent the system of judicial review which was already in the process of evolution, but by this decision he strengthened the system to a remarkable extent.
WHAT IS JUDICIAL REVIEW ? It is the Court’s power of declaring any law or administrative action which may be inconsistent with the constitution as unconstitutional and hence void.
WHY DOES IT NEED TO BE DONE?
To maintain the integrity of the constitution
Written v. Unwritten constitution : court burden increased with the former constitution .
Court as supreme interpreter
Duty to ensure rights of people
Duty to ensure the working of federalism
Adapting to social change
Two functions : legitimising government action ; prevent undue encroachment by the government.
As a policy and law maker.
JUDICIAL REVIEW IN INDIA
TRACING THE ORIGIN : 1773 1774 CHARTER ACT ACT OF 1858 AND 1861 (NO POWER OF JR) 1877- Emperor vs. Burah : In this case court held that aggrieved party had right to challenge the constitutionality of a legislative Act enacted by the Governor General council in excess of the power given to him by the Imperial Parliament.
MAJOR SOURCE FROM INDIAN CONSTITUTION
ART. 13(2) “The state shall not make any law which takes away or abridges the rights conferred by this Part [Part III containing Fundamental Rights] and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
STATE OF MADRAS V. ROW : COI contains express provisions for judicial review.
LAND MARK CASE LAW | A.K.GOPALAN V. STATE OF MADRAS: If you transgress the constitutional limits: court will declare the law as unconstitutional.
STATE OF RAJASTHAN V. UOI Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the constitution and it has to act within the limits of its authority. Supreme Court is ultimate Interpreter of the Constitution.
REASONS FOR JUDICIAL REVIEW IN INDIA
To maintain the balance of federalism, to protect the Fundamental Rights and Fundamental freedoms guaranteed to the citizens ; to help to create a healthy nationalism # S.S.BOLA V. B.D.SHARMA
To see that the constitutional guarantees afforded by these Rights are not contravened # Kesavananda Barathi case
A controlled constitution will then become uncontrolled : if not for Judicial review. To uphold the constitutional values and to enforce the constitutional limitations # Minerva Mills case
To maintain the balance of power under the constitution of India. Judicial Review in 3 forms : Judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action.”# L. Chandra Kumar v. Union of India
PROVISION UNDER INDIAN CONSTITUTION RELATING TO JUDICIAL REVIEW
1)Article 372 (1) establishes the judicial review of the pre-constitution legislation.
2) Article 13 : declares that any law which contravenes any of the provisions of the part of Fundamental Rights shall be void.
3)Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
4)Article 251 and 254 states that in case of inconsistency between union and state laws, the state law shall be void.
5)Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to the State List.
6)Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution. The legitimacy of any legislation can be challenged in the court of law on the grounds that the legislature is not competent enough to pass a law on that particular subject matter; the law is repugnant to the provisions of the constitutions; or the law infringes one of the fundamental rights.
7)Articles 131-136 entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state, between the states and the union; but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.
RECENT RELEVANCE OF JUDICIAL REVIEW | FARM LAWS ISSUE
The Indian agriculture acts of 2020, often referred to as the Farm Bills, are three acts initiated by the Parliament of India in September 2020. Farmer’s found it to be violating their rights and livelihood therefore initiated intense protest against the same. To restore peace Supreme Court stayed the operation of the controversial agricultural laws. Here at later hearing SUPREME COURT WILL USE ITS POWER OF JUDICIAL REVIEW AGAINST THE LEGISLATURE to check whether these laws has been enacted within the limits of constitutional provisions.
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