Updated: Feb 4, 2021
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UPSC LAW OPTIONAL MAINS FREE WRITING PRACTISE | TOPIC : JUDICIAL REVIEW | SOLUTION
QUESTION : Make a distinction between judicial review and judicial power. Explain the scope of judicial review with reference to the cases arising under the Xth Schedule of the Constitution.
POINTS TO NOTE ABOUT THIS QUESTION :
This is a complex question having 2 parts
Part 1 | Regarding distinction between Judicial review and Judicial power
Part 2 | Scope of judicial review only concerned with X Schedule.
Most aspirants concentrate only on one part make sure to answer both parts.
Usually judicial review is asked under IX schedule but here X schedule is asked, we have to note the same.
ANSWER FOR THE QUESTION :
CONCEPTUAL DIFFERENCE BETWEEN JUDICIAL REVIEW AND JUDICIAL POWER| Judicial review means power of the judiciary to examine the actions of legislature, acts of the executive or judicial decisions whereas judicial power means the power of the court to decide the matter and pronounce a judgment.
HOW JUDICIAL POWER AND JUDICIAL REVIEW HAS DIFFERENT SOURCES | Article 13 provides for judicial review for the protection of fundamental rights under Part III of the Constitution. It provides that any law which is inconsistent with fundamental rights shall be declared as void. Article 226 and 32 also deals with judicial review by High Court and Supreme Court respectively. On the other hand, constitution provides appellate , original, criminal and civil jurisdiction to both High Court and Supreme Court which is nothing but vesting of judicial power on these institutions. In, fact Supreme Court is given a super power called special leave petition which increases its judicial power.
HOW JUDICIAL REVIEW AND JUDICIAL POWER HAS DIFFERENT NATURE | Article 50 of the Constitution talks about separation of powers but judicial review is an exception to this doctrine, whereas judicial power in essence the core duty of Courts.
THERE DIFFERENCE IN EXISTENCE | Judicial review is available to only High Court and Supreme Court, whereas every court had judicial power. A small causes court or Judicial magistrate court indisputably enjoy judicial power but cannot say whether executive or legislature has acted against constitution.
OUT COME OF BOTH | By all observation we can say judicial review makes High Courts and Supreme Court the interpreters who safeguard our constitution, whereas judicial power makes the judiciary in itself., i.e., any court can exist without the power of judicial review but no court can exist without the judicial power.
EXAMPLE TO DIFFERENTIATE JUDICIAL POWER AND JUDICIAL REVIEW | If Supreme Court passes its order on constitutionality of recent controversial Agricultural laws 2020, then it has exercised its power of judicial review, whereas when Supreme Court confirmed the sentence of Late Chief Minister of Tamil Nadu Selvi. Jayalalitha it exercised its judicial power.
SCOPE OF JUDICIAL REVIEW IN XTH SCHEDULE
WHAT IS THIS SCHEDULE ALL ABOUT ? Xth Schedule to the Constitution was added in the year 1985 by 52nd Amendment Act. It provides for anti-defection law in India. This Schedule provides for disqualifications on the ground of defection and situations where these disqualifications do not apply.
Rule 7 to the 10th Schedule provides bar of jurisdiction of courts in matters related to disqualification of the member of a house under 10th Schedule. But this provision has been challenged numerous times, and in the court held in Kihoto Hollohon case that such barring power is valid except in case of judicial review.
In Kihoto Hollohon v. Zachillhu & ors (1992), the court held upheld the constitutional validity of 52nd Amendment and observed that the law of anti- defection recognizes the practical need to place the properties of political and personal conduct. It also held that final decision regarding defection is made by presiding officer and his decision would be final and subject to judicial review once the decision becomes effective. There cannot be judicial review before the Speaker’s decision.
The bench said, “the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequences.”
RATIONALE | The Rajasthan High Court held that the reason for limiting the court’s jurisdiction in cases falling under 10th Schedule is that the ‘office of the Speaker is held in the highest respect and esteem in parliamentary traditions.
In Dr. Kashinath G Jalmi and anr. v. The Speaker and ors. the court again held that Speaker or Chairman of the house does not have review power under 10th Schedule and his order is final subject to judicial review.
Although judicial power is the lifeline of judiciary we can call the power of judicial review to be a super power which operates where judiciary is not expected to intervene as per strict rules of separation of powers, this super power is given so our constitution is saved.
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