Q. In India, Judicial Review implies

  • the power of the Judiciary to pronounce upon the constitutionality of laws and executive orders.
  • the power of the Judiciary to question the wisdom of the laws enacted by the Legislatures.
  • the power of the Judiciary to review all the legislative enactments before they are assented to by the President.
  • the power of the Judiciary to review its own judgements given earlier in similar or different cases.

Answer: (a) the power of the Judiciary to pronounce upon the constitutionality of laws and executive orders.

Judicial review:
  • Judicial review:
    • It is the power of the judiciary to pronounce upon the constitutionality of laws and executive orders.
    • Judicial review is defined as the principle under which executive and legislative actions are reviewed by the judiciary.
    • It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
      • It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution.
    • The judiciary is vested with the power to review the actions of the other two arms (Legislative and Executive).
    • Judicial review has two important functions, like, of legitimizing government action and the protection of constitution against any undue encroachment by the gov­ernment.
    • Judicial review is part of the basic structure of the constitution.
    • Judicial review also gives the power to the court to declare the action of the Government unconstitutional.
    • Judicial review is also called the observer and interpretational role of the Indian judiciary.
    • Examples set by the Indian judiciary like Suo Moto cases, the Public Interest Litigation (PIL), etc. have allowed the judiciary to intervene in many public issues, even when there is no complaint.
  • Types of Judicial Review:
    • Reviews of Legislative Actions:
      • This review implies the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.
    • Review of Administrative Actions:
      • This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.
    • Review of Judicial Decisions:
      • This review is used to correct or make any change in previous decisions by the judiciary itself.
  • Importance of Judicial Review:
    • It is essential for maintaining the supremacy of the Constitution.
    • It is essential for checking the possible misuse of power by the legislature and executive.
    • It protects the rights of the people.
    • It maintains the federal balance.
    • It is essential for securing the independence of the judiciary.
    • It prevents tyranny of executives.
  • Problems with Judicial Review:
    • It limits the functioning of the government.
    • It violates the limit of power set to be exercised by the constitution when it overrides any existing law.
      • In India, a separation of functions rather than of powers is followed.
      • The concept of separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.
    • The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
    • Judicial review can harm the public at large as the judgment may be influenced by personal or selfish motives.
    • Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.
Constitutional Provisions for Judicial Review
  • There is no direct and express provision in the constitution empowering the courts to invalidate laws, but the constitution has imposed definite limitations upon each of the organs, the transgression of which would make the law void.
  • The court is entrusted with the task of deciding whether any of the consti­tutional limitations has been transgressed or not.
  • Some provisions in the constitution supporting the process of judicial review are:
    • Article 372 (1) establishes the judicial review of the pre-constitution legislation.
    • Article 13 declares that any law which contravenes any of the provisions of the part of Funda­mental Rights shall be void.
    • Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
    • Article 251 and 254 states that in case of inconsistency between union and state laws, the state law shall be void.
    • Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to the State List.
    • Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.
    • 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.
    • Article 137 gives a special power to the SC to review any judgment pronounced or order made by it. An order passed in a criminal case can be reviewed and set aside only if there are errors apparent on the record.