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COMPARATIVE STUDY OF JUDICIAL REVIEW AND SEPARATION OF POWERS
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COMPARATIVE STUDY OF JUDICIAL REVIEW AND SEPARATION OF POWERS
ABSTRACT
This research paper focuses on the
relationship and minor differences between judicial review and separation of
powers, making it a comparative study of the two. The Supreme Court's
intervention in the recent Jharkhand case raised questions regarding the
precise scope and character of the legislative and judicial branches of
government. Any discussion of this subject would be inadequate without examining
the notion of separation of powers, which seeks to define the scope of
jurisdiction each branch of government possesses concerning the others. This
experiment is carried out as part of the Jharkhand case. The paper serves two
purposes.
The study begins with an examination
of the idea of separation of powers in order to fully appreciate its
significance and practical implementation. The second goal is to explore the
theory in the context of the Jharkhand case to explain how the previously
mentioned theoretical notions may be used practically. In short, the study
seeks to establish whether the Supreme Court's involvement in the Jharkhand
case is justified by the principle of separation of powers.
HYPOTHESIS
Separation of powers: -
§ Aristotle's
Politics, written in the 4th century B.C., identified three branches of
government: the Judiciary, Public Officials, and the General Assembly.
The idea of separation of powers states that no branch of government may usurp another's jurisdiction.
The idea of separation of powers states that no branch of government may usurp another's jurisdiction.
The following
are some of the most fundamental aspects of separation of powers:
(i)
A written constitution with supremacy over all
institutions established under it.
(ii)
Power allocation among the three equal-status
organs of the state.
(iii)
Legislative authority cannot be delegated to
anybody.
§ Blackstone
viewed judicial legislation as the best aspect of common law, whereas Bentham
saw it as an appropriation of the legislative role.
§ Montesquieu
established the notion of separation of powers to safeguard human liberty and
prevent governmental consolidation. If the judge behaves like a legislator, he
or she may abuse their authority and become the oppressor.
§ According
to Lord Acton, "absolute power corrupts absolutely."
§ During the
American Constitution negotiations, Yates, a member of the Constituent
Assembly, questioned judges' independence from the law.
§ Alexander
Hamilton argued that while both the legislature and the court represent the
state's citizens, the people have more authority than either. People's
intentions will take precedence over measures taken by the legislative and
judicial institutions.
§ President
Franklin D. Roosevelt We shall pack the court with justices who will act as
judges rather than legislators.
In Indian Constitution:-
§ Article 50
states that the Judiciary and Executive should be maintained separate.
§ According
to Article 53(1), the President of India exercises executive responsibility
over the Union of India.
§ Article
121 prohibits Parliament from discussing the activities of judges. Similarly,
the court will not scrutinize Parliamentary proceedings under Article 122.
§ Articles
211 and 212 apply to State Legislatures and High Courts, respectively.
§ According
to Article 361 of the Indian Constitution, the governors and president are not
subject to court proceedings.
§ According
to Article 50, the judiciary and executive branches must be maintained
distinct.
According to Article 53(1), the President of India exercises executive responsibility over the Union of India.
According to Article 53(1), the President of India exercises executive responsibility over the Union of India.
§ Article
74(2) limits the Court's ability to investigate whether the Council of
Ministers provided advice to the President.
One of the
most basic aspects of the Indian Constitution is the separation of powers,
which it guarantees.
Parliament
cannot change the core aspects of the Constitution, which are the independence
of the judiciary and the authority of judicial review, because doing so would
affect the essence of the documents.
Judicial Legislation:-
The fundamental process for
legislation in a democracy is to present the bill to the legislature for
consideration, even if the judge determines that it is required to eradicate
significant social malpractice that is adversely affecting people's lives.
The Legislature cannot foresee every
possible problem. The Constitution is a permanent document, in contrast to
government orders, which are subject to revision, amendment, surrender, or
replacement.
The judge must therefore interpret
the clause while taking the authors' intentions of the Constitution into
consideration. In addition to preventing autocratic leadership, the separation
of powers is meant to act as a check and balance on the actions of other
organs.
Although the House of Lords disagreed
in Laker Airways (1977), arguing that a judge's role is restricted to that of a
referee, the Supreme Court has the authority to create laws, as stated in State
of Punjab v. Nand Kishore (1995) SCC 614.
In Vishnu Dutt Sharma v. Manju Sharma, AIR 2009 SC 2254, the Supreme Court held that a reading of Section 13 of the Hindu Marriage Act, 1955, shows that the legislature has not created any foundation for issuing a divorce decree that would cause the marriage to irretrievably dissolve. The Court is unable to incorporate such a justification in Section 13 of the Act since the legislature has the authority to amend it.
In the 2003 Prakash Hinduja case, the
Supreme Court ruled that if the State provides a directive that is equal to the law
and the State ignores it, the State cannot be prosecuted in contempt of court.
This is due to the fact that the Court's order lacked the jurisdiction and
power to make a direction that was on par with the laws. Therefore, the
courts ought to exercise caution in this regard and resist the urge to enact
judicial law. "Judicial legislation" is an oxymoronic word.
Applications of the judicial process to the administrative process have been made. The Reserve Bank of India (RBI), Telecom Regulatory of India, and other regulatory bodies are products of the legislature and have both legislative and judicial jurisdiction since administrative law was developed to meet the demands of administrative agencies in the complex modern society. Due to the necessity of economic regulation, the conventional distribution of powers had to be abandoned.
Applications of the judicial process to the administrative process have been made. The Reserve Bank of India (RBI), Telecom Regulatory of India, and other regulatory bodies are products of the legislature and have both legislative and judicial jurisdiction since administrative law was developed to meet the demands of administrative agencies in the complex modern society. Due to the necessity of economic regulation, the conventional distribution of powers had to be abandoned.
The Authority has the power to
establish private rights and obligations as the Agencies must make decisions
and create laws and regulations that have legal effect. The legislative
delegated authority to the administrative agency, which then created the rules
and regulations. In administrative adjudication, the authority that makes a
factual decision becomes a "quasi-judge," and it mimics the legal
system. Judges do not make decisions; members of the administration do. The
separation of powers paradigm is undermined by the notion that economic powers
must be guided by the "public interest". Part of the reason the
Agencies were established was to provide "cheap" and
"inexpensive" professional justice. Timely justice is delivered in a
way that is both "user-friendly" and "affordable."
In actuality, the courts have not
acknowledged the theory's full force. As a result, the notion offers insulation
rather than legal separation.
LITERATURE REVIEW
Judicial Review:-
The Constitution is the supreme
law. Hans Kelsen calls it the State's "grandmom." All other laws in
the country are derived from the Constitution. According to the jurist H.L.A.
Hart, the Constitution is the standard by which all other laws are measured.
According to the Constitution, additional laws must have their validity
assessed. If a law violates any of the core tenets of the Constitution, it is
considered unconstitutional. The same standard also applies to executive
actions. Furthermore, CEOs are prohibited from making choices that contradict
core principles or ideals that are vital to the identity of the Constitution.
The judiciary bears the responsibility of confirming the constitutionality of
laws and actions. This procedure is referred to as "judicial review."
Consequently, judicial review is defined as "the power of the court to
determine whether the acts of legislature and executive are consistent with the
Constitution or the Constitutional values."
Underpinning the concept of judicial
review is the supremacy of the country's Constitution. As the guardian of the
Constitution, the Judiciary is empowered to prevent actions that are against
the Constitution. The judiciary has the power to use judicial review to reverse
any decision that breaches the Constitution. The concept is contained in
Article 13 of the Constitution of India. According to the article, any
legislation that is passed must meet the requirements outlined in the Indian
Constitution. It also renders any existing laws that disagree with it void to
the extent of the dispute. Giving the judiciary the power to carry out judicial
review, then. The Indian Constitution's Articles 32 and 226 uphold the
fundamental rights outlined in Part III.
The Court's assurance of fundamental rights is meaningless and irrelevant unless it has the power to protect them from capricious infringement. The power of judicial review was used in this situation. The judicial review process allows the court to assess actions that pose a risk of unjustly denying fundamental rights.
The Court's assurance of fundamental rights is meaningless and irrelevant unless it has the power to protect them from capricious infringement. The power of judicial review was used in this situation. The judicial review process allows the court to assess actions that pose a risk of unjustly denying fundamental rights.
Judicial review authority is one of
the core components of the Constitution.
State of Kerala v. Kesavananda Bharti (1973) 4 SCC; Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299; Raja Rampal v. Hon'ble Speaker, Lok Sabha (2007) 3 SCC 184).
HISTORICAL BACKGROUND
In England, the power has always been
with the Parliament. It was not intended for the judiciary to assess the
Parliament's acts because the Parliament is paramount. Judicial scrutiny
applied only to executive acts. Despite not being mentioned specifically in the
British Constitution, the court was in charge of making sure that the executive
branch acted in accordance with its values. Even though the judiciary expanded
the definition of negligence in cases like Rylands v. Fletcher 1868 UKHL
1 (the principle of strict liability) and Donoghue v. Stevenson
1932 UKHL 100 (a manufacturer of goods owes a duty towards an ultimate
consumer with whom there is no contractual relation), the notion that judges do
not make laws was maintained.
Judicial review was another concept
that Britain brought to its colonies. The concept has therefore always been
present in the Indian legal system. In the United States of America, the
situation was comparable. It was given the common law system because it was a
British colony. The American concept of judicial review was developed based on
the common law system.
In Marbury v. Madison (1803),
the U.S. Supreme Court made it clear for the first time that
legislative actions are subject to judicial review. The use of review authority
by the judiciary is not mentioned in the U.S. Constitution. In the Marbury
ruling, it is argued that the Court assumed independent judicial review
jurisdiction. Even though the writers of the Indian Constitution supported
parliamentary rule, they decided to use judicial review in light of the lessons
acquired from both countries.
In Golaknath v. State of Punjab
AIR 1967 SC 1643, the Court decided that the Parliament could not amend
the Constitution to eliminate the Part III rights. Consequently, the 24th
amendment (1971) to the Constitution declared that the Parliament has
unrestricted power to alter the document.
Kesavanand Bharati v. State of Kerala
AIR 1973 SC 1461
was the case in which the disagreement started. The court acknowledged that
Parliament has the authority to amend the Constitution, but cautioned against
the fundamental structural idea. When considering constitutional amendments,
the Court pointed out that the core principles of the document must be taken
into account. The Court further stated in Minerva Mills v. Union of India
AIR 1980 SC 1789 that constitutional change cannot nullify the
Constitution itself. Occasionally, the Supreme Court of India has upheld the
principles enshrined in our Constitution by using its judicial review
authority.
CONCLUSION
Further, there are many judicial
reviews described by the laws that are namely: -
§ Judicial review of Administrative Action
§ Judicial review of Policy Decisions
§ Judicial Review of Economic Policy
§ Judicial review of Price Fixation
§ Judicial review of decisions based on
expert opinions
§ Judicial review of subordinate
legislation
§ Judicial review in Contractual cases
§ Judicial review in Disciplinary
Proceedings
§ Judicial review of the Quantum of
punishment
§ Judicial review of LPG
§ Judicial review of order passed under
Clemency level
§ SUO MOTO Judicial review
Article Information
COMPARATIVE STUDY OF JUDICIAL REVIEW AND SEPARATION OF POWERS
Authors: SAKSHI SHARMA, YATI YADAV
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/11/09
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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