This article is written by Saransh Pandey, a 2nd year student from Chandigarh University and an intern at Legal Upanishad.
Law relating to Judicial review in India
The art of judicial review plays an important role in the safeguarding of the rights of the people. People give up their rights and enter into a contract with the government to protect them from any type of public wrong. Judicial review is recognized as the most important tool for the construction of a novel society. We can understand Judicial Review as a form of court proceedings, where the lawfulness of a decision or action is evaluated by the judges. The main focus behind Judicial Review is to build and look after the laws which are enforced correctly for the welfare of society. The main problems often faced are exploitation of their fundamental rights and formations of certain rules or laws which indirectly deters with the rights of people.
Judicial Review in India:
Judicial Review plays an important role as a protector of the people’s rights and ensures their safety against the three organ bodies of the executive, legislature, and judiciary harm values to the constitutional rights and values. The Judicial Review is considered as an interregnal part of a feature of a country’s as an indispensable part of a feature in-country, In India, There is a parliamentary form of government that is involved in all kinds of lawmaking and policymaking process. Even, The Constitution of India has given influenced both the high court and Supreme Court of India to guard and maintain social equality and implement the fundamental rights to provide a better living habitat for the citizens.
Features of Judicial Review:
Power of judicial review can be exercised by both the Supreme Court and High Courts:
According to article 226 of the Indian Constitution, A person can approach the High Court if they face any kind of violation of their fundamental rights, and also under article 32, any person can approach the Supreme Court if there is a violation of their fundamental rights.
Judicial Review of both state and central laws:
Laws implemented by both state and center are both subjected to judicial review and any laws, articles, ordinances, and constitutional amendments passed by the government and all the other notifications are covered under article 13(3) of the Indian Constitution are subject to Judicial Review.
Judicial review is not automatically applied:
It cannot be applied itself, even the Apex Court i.e. Supreme Court cannot apply and attract the Judicial Review itself without a substantive question of law or rule is challenged before the Hon’ble Court.
Judicial review of Ordinances:
It is stated under articles 123 and 213 the Constitution of India. It gives the power to the President and The Governor to pass an Ordinance. An act of ordinance is passed by the President and The Governor is within the same restrictions. The parliament passes a law, article, ordinance, and constitutional amendments, and this power is used in exceptional cases only.
Judicial review of Money Bill:
It is stated under article 110(3) of the Indian Constitution that whenever a substantive question of law arises for a money bill. The decision of the speaker isn’t final. Article 212 of India’s constitution states that courts cannot enquire into legislative processes based on any procedural irregularities. Article 255 of the Indian Constitution provides that recommendation and procedure sanctions are matters of procedure only.
Judicial Review and the Constitution of India:
To probe the lawfulness of administrative action and statutes. The Constitution of India has given the power to the High Courts and Supreme Court of India to guard the fundamental rights of the citizens and provide a novel society. It is mentioned in article 13 that laws inconsistent with derogation of Fundamental Rights are void. If any difficulty arises between State and Center relation; then Article 246 and Schedule 7 of the Constitution have marked the working zone for the regulation construction between both State and Center. Judicial review has evolved in three ways.
To protect the fundamental rights mentioned under Part III of the Indian Constitution.
To authorize the impartiality of organizational achievement.
Safeguard of public interest.
Case Laws Related:
Shankari Prasad vs Union of India :
Facts: As the Constitution Amendment Bill was amended in several respects during its passage through the Parliament, the Constitution (First Amendment).
Issue: Whether the 1st Constitutional Amendment, 1951 passed by the Parliament is valid.
Whether the word ‘law’ used under Article 13(2) also includes the ‘law of the amendment of the Constitution of India.
Judgment: The court applies the standard of Harmonic Construction as there is a contention between article 368 and article 13. The arrangements of the constitution ought to be deciphered in a way that they don’t struggle with one another and there is concordance between them.
Analysis: This is quite a historical case with respect to Fundamental Rights because in this the Apex Court i.e. The Supreme Court of India ruled that Fundamental Rights cannot be amended and ensure safety to the citizens
Indira Nehru Gandhi V. Raj Narain AIR 1975 SC 86
Facts: election of the Prime Minister and the Speaker cannot be questioned in any court of law.
Issues: Validity of the Constitutional Amendment 392A
Judgment: The apex court i.e Supreme Court upheld the contention of Raj Narain and declared the impugned clause 4 of Article 329A uunconstitutional
Analysis: The 39th Amendment clearly shows infringement with Article 14th of Part III of the Constitution of India and the court ruled out the 39th Amendment to protect the rights of individuals.
Kesavananda Bharti vs the State of Kerala:
Facts: Kesvanandi Bharti was the chief of Edneer Mutt and a certain piece of the land was being occupied by the Kerala Government under the new Land Reforms Amendment 1969.
Issues: Validity of the land Reforms Amendment
Judgment: The Supreme Court ruled by a 7:6 majority that Parliament can amend any section of the Constitution to meet its socio-economic obligations to citizens promised by the Preamble, as long as the modification does not change the core framework of the Indian Constitution.
Analysis: The court held that Parliament can amend the Constitution of India unless it shows infringement with the Basic Structure of the Constitution which contains all the necessary rights of citizens.
Conclusion and Suggestion:
In India we have adopted we have embraced the concept of Separation of power. So we couldn’t predict the power of judicial review in a full extended frame. If the law-making bodies understand the power of law-making; it would lead to poor performance of the organs as well as the society. So to the proper functioning of the law-making bodies, each has to embrace the sphere they are working in. Also, it helps the court function for fundamental rights as well as to keep an eye on the organs. Do not misuse the power assigned to them. Judicial Review is necessary to protect the rights of individuals with the dream to form a novel society. If we don’t then people will be crushed under the laws made by people who are sovereign for their benefit.
All about judicial review
Constitution of India
Indira Nehru Gandhi V. Raj Narain AIR 1975 SC 86:
Judicial Review in India :
Keshvanandi Bharti vs union of India
Shankari Prasad vs Union of India :