JUDICIAL REVIEW BY - SHAMBHAVI SINGH
JUDICIAL
REVIEW
AUTHORED BY -
SHAMBHAVI SINGH[1]
Introduction
The judiciary assumes a
pivotal role within democratic nations, serving as the bastion of the rule of
law, guardian of individual rights, and custodian of constitutional integrity.
It functions as a formidable checks and balance on the other branches of
government, adeptly mediating disputes and preserving the equilibrium of power.
In essence, the judiciary serves as the vanguard of democratic principles,
steadfastly safeguarding the rights and freedoms of citizens. Its primary
mandate lies in the judicious interpretation and application of the law,
ensuring equitable and impartial dispensation of justice in strict accordance
with the Constitution and well-established legal tenets.
Within a federal system,
the judiciary assumes the crucial role of being the equilibrium-restoring
mechanism for federalism, resolving disputes that arise between the central
government and individual states, as well as among states themselves.
Federalism, characterized by the constitutionally defined allocation of powers
between the central and state governments, epitomizes a legalistic form of
governance, necessitating the presence of an impartial arbiter to maintain the
delicate equilibrium between the centre and states.
In this context, the
legal maxim "Ubi jus, ibi
remedium" comes to mind, emphasizing that where there is a right,
there must be a remedy. The judiciary serves as the embodiment of this
principle, ensuring that when conflicts concerning the distribution of powers
under the constitution arise, a remedy is readily available. Furthermore, the
maxim "Salus populi suprema lex
esto," which means "The welfare of the people shall be the
supreme law," underscores the judiciary's responsibility to safeguard the
well-being of the populace by diligently upholding the federal structure's
integrity through its rulings and adjudications.
In numerous nations with
a codified constitution, the doctrine of judicial review prevails, signifying
that the constitution holds the highest legal authority, and any law
contradicting it is rendered null and void. Courts are entrusted with the role
of elucidating constitutional provisions, wielding the authority to declare any
legislation or administrative action incongruent with the constitution as
unconstitutional and, consequently, invalid.
This judicial function
emanates from the recognition that a system grounded in a written constitution
would lack practical effectiveness without an authoritative, independent, and
impartial adjudicator of constitutional matters. Moreover, it serves as a
necessary mechanism to curtail governmental entities from exercising powers
that are not constitutionally sanctioned.
Regarding the importance
of judicial review within a written constitution, Schwartz makes the
observation: “A constitution is naught
but empty words if it cannot be enforced by the courts. It is judicial review
that makes constitutional provisions more than mere maxims of political
morality. In practice, there can be no constitution without judicial review. It
provides the only adequate safeguard that has been invented against
unconstitutional legislation. It is, in truth, the sine qua non of the constitutional
structure[2]”
The doctrine of judicial
review serves a dual and interconnected purpose: firstly, it legitimizes
governmental actions, and secondly, it acts as a bulwark safeguarding the
constitution from unwarranted intrusions by the government. These two functions
are inextricably intertwined, forming a cohesive mechanism within the legal
framework.
The constitutional
interpretation role is fulfilled by the courts through both direct and indirect
exercises of judicial review.
Direct judicial review
entails courts examining individual cases to determine the constitutionality of
laws, whereas indirect judicial review empowers courts to shape constitutional
interpretations and impact government actions indirectly through broader legal
statements and judgments. Both types of review are vital for preserving the
rule of law and safeguarding constitutional principles.
Justice Antonin Scalia, a
prominent jurist, held a nuanced view on judicial review. He expressed
scepticism about direct judicial review, advocating for caution in overturning
laws enacted through the democratic process. However, Scalia recognized the
importance of indirect judicial review through legal principles and precedents,
emphasizing the role of consistent interpretations in evolving constitutional
meaning. His views highlight the delicate balance between judicial review and
democratic principles.
Evolution and Origin of Judicial
Review
The origins of the
judicial review doctrine can be traced back to the natural law theory articulated
in Dr. Bonham's case[3] in
England. In this case, an Act of Parliament validating the Charter of the Royal
College of Physicians was declared void. The argument was that if a
parliamentary act contradicted common law rights, reason, or was impractical,
the common law would prevail, deeming such an act null and void.
The theoretical basis for
judicial review took a significant step forward with Chief Justice Marshall's
1803 judgment in Marbury v. Madison[4],
United States Supreme Court. Chief Justice Marshall established the principle
that, in a conflict between the Constitution and a legislative statute, the
court should prioritize the Constitution as the superior law and declare the
statute unconstitutional. This laid the groundwork for the modern understanding
of judicial review, where the court has the authority to invalidate laws that
are inconsistent with the constitution.
Judicial Review in India
The inception of judicial
review in India can be traced to the promulgation of the Indian Constitution in
1950. India's judicial review mechanism assumes a pivotal role within its
democratic structure, endowing the judiciary with the authority to scrutinize
the constitutionality of legislative enactments and governmental actions. This
constitutional innovation signified a profound departure from the preceding
legal order under British colonial rule and laid the groundwork for the Indian
judiciary to emerge as the sentinel of the Constitution and the guardian of
individual rights.
The principle of judicial
review finds its sanctum in the Constitution itself, particularly in Articles
13, 32 and 226, bestowing upon the judiciary the power to adjudicate and annul
laws and actions that run afoul of constitutional provisions. The legal maxim
"Lex posterior derogat priori" — meaning that a later law repeals an
earlier one — underscores this constitutional authority, as the Indian
judiciary's decisions hold sway over conflicting legislative acts. Since its
inception, the Indian judiciary has played a pivotal role in the maintenance of
the rule of law and the safeguarding of the foundational tenets and values
enshrined in the Constitution.
Articles of the Indian
Constitution that deals with the doctrine of judicial review.
1. Article 13:
Article 13 deals with the doctrine of "judicial review." It states
that any law that contravenes fundamental rights shall be considered void to
the extent of the contravention. This is a fundamental aspect of judicial
review in India.
2. Article 32:
Article 32 of the Indian Constitution grants individuals the right to approach
the Supreme Court for the enforcement of fundamental rights. It is a crucial
provision that allows the Supreme Court to review actions of both the central
and state governments to ensure they are consistent with fundamental rights.
3. Article 226:
Article 226 pertains to the power of High Courts to issue writs for the
enforcement of fundamental rights as well as for other purposes. It grants High
Courts the authority to conduct judicial review of actions taken by the central
or state governments and other authorities.
In India, the courts bear
a constitutional responsibility to interpret the Constitution and, when
necessary, declare a law unconstitutional if it violates any constitutional
provision. The courts function as vigilant guardians of the Constitution,
consistently monitoring its adherence and integrity.
The doctrines of
supremacy of the constitution and judicial review has been expounded very
lucidly but forcefully by Bhagwati J as follows in Rajasthan v UOI[5]
It is necessary to assert in the clearest terms particularly
in the context of recent history. that the constitution is supreme lex, the
permanent law of the land, and there is no department or branch of govemment
above or beyond it. 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. No one however highly placed
and no authority howsoever lofty can claim that it shall be the sole judge of
the extent of its power under the constitution or whether its action is within
the confines of such power laid down by the constitution. This Court is the
ultimate interpreter of the constitution and to this Court is assigned the
delica task of determining what is the power conferred on each branch of
government, whether it is limited, and if so, what are the limits and whether
any action of that branch transgresses sach limits.
In SS Bola v BD Sharma[6],
Justice Ramaswami has provided a rationale for the practice of judicial review-
The founding fathers very wisely, therefore, incorporated in
the Constitution itself the provisions of judicial review so as to maintain the
balance of federalism, to protect the Fun damental Rights and Fundamental freedoms
guaranteed to the citizens and to afford a useful weapon for availability,
availment and enjoyment of equality, liberty and Fundamental free- doms and to
help to create a healthy nationalism. The function of judicial review is a part
of the constitutional interpretation itself. It adjusts the constitution to
meet new conditions and needs of the time.
In several instances, the
Supreme Court of India has underscored the significance of judicial review.
Justice Khanna, in the Kesavananda case[7],
emphasized this importance by stating...
While Fundamental Rights endure as integral components of the
Constitution, the exercise of judicial review must persist to ensure the
protection of the rights guaranteed therein. Consequently, judicial review has
firmly entrenched itself within our constitutional framework.
DOCTRINES
Art. 13 of the
constitution has given rise to the formulation of several doctrines:
Doctrine of Severability
The legal concept known
as the Doctrine of Severability, sometimes referred to as the Doctrine of
Separability or Severance, permits a judge to uphold a portion of a statute or
contract while ruling that other portions are unconstitutional, void, or
unenforceable. Put another way, the court has the power to "sever,"
or separate, the lawful provisions from the defective ones in a law or contract
that contains both.
When a provision may be
divided into parts that are unconstitutional or legally void and parts that are
constitutional or valid, this theory is used. The objective is to protect the
legitimate sections and let them stand alone.
The Doctrine of
Severability allows the court to invalidate only the unconstitutional portion
of a legislation, keeping the rest of the law untouched, in the event that a
statute with several parts is determined to offend the constitution. This is to
prevent rejecting a contract or statute in its entirety if only a section of it
is flawed.
The legislative intent
will determine how the Doctrine of Severability is applied, and the court will
take into account whether the remaining provisions can accomplish the
legislative goal on their own or with the help of other parties.
This approach is crucial
for striking a balance between upholding legally binding agreements and dealing
with clauses that are unconstitutional.
Doctrine of Eclipse
The Doctrine of Eclipse
constitutes a legal principle addressing the temporary inapplicability or
unenforceability of a law that contravenes constitutional provisions. According
to this doctrine, when a law, initially deemed unconstitutional, undergoes
amendment to align with constitutional norms, it is regarded as being in a
state of "eclipse" during the period when it was incongruent with the
constitution.
In essence, if a law,
originally found to violate constitutional precepts, is subsequently amended to
rectify the constitutional concerns, the revised law is considered valid from
the date of the amendment onward. Nevertheless, for the period preceding the
amendment, the law is deemed to be in a state of eclipse—temporarily inert or
ineffective.
The doctrine acknowledges
that upon amending a law to adhere to constitutional requisites, it undergoes a
revival, and its enforceability is reinstated. Throughout the eclipse period,
the law is technically devoid of validity, but its legal standing is
rejuvenated following the necessary amendments.
This concept is
particularly pertinent when amendments are introduced to existing laws to
ensure alignment with constitutional principles. It underscores the notion that
legal provisions can experience renewal through adherence to constitutional
standards. The doctrine of eclipse is employed to circumvent the complete
nullification of the law, providing for its reinstatement following necessary
adjustments to ensure constitutional compatibility.
Doctrine of Waiver
The Doctrine of Waiver is
a legal principle that pertains to the deliberate and voluntary abandonment or
surrender of a recognized legal right, privilege, or claim. When an individual
or entity exercises a "waiver," it signifies their decision not to
assert or enforce that particular right, either explicitly or through their
actions.
Crucial aspects of the
Doctrine of Waiver encompass:
1. Voluntariness: Waiver must be a
deliberate and voluntary action, free from coercion or compulsion. The party
relinquishing the right must do so willingly and with a comprehensive
understanding of the associated consequences.
2. Knowledge: The party waiving a right
must possess awareness of the existence of the right and the option to enforce
it. Lack of knowledge regarding the right may impede the validity of the
waiver.
3. Intent: The act of waiver should
manifest a distinct intention to renounce the right. This intent may be
expressly articulated or inferred from the party's conduct.
4. Prejudice: In certain instances, a
waiver may be deemed invalid if it causes undue harm or prejudice to the other
party. Courts may assess whether the party claiming waiver would suffer
detriment if the right were enforced.
5. Contractual Waiver: Parties
frequently incorporate waiver clauses into contracts, outlining the rights that
can be waived and the circumstances under which such waivers are applicable.
These contractual provisions are generally upheld, provided they adhere to
legal standards.
Instances of waiver
encompass:
Express Waiver: A party
explicitly declares the abandonment of a specific right. For example, in a
contract, one party may expressly waive the right to pursue legal action for a
particular type of breach.
Implied Waiver: Actions or behaviour implying a deliberate
relinquishment of a right. For instance, if a landlord consistently accepts
late rent payments without objection, they may be considered to have waived the
right to insist on punctual payments.
Waiver of Constitutional
Rights: In criminal law, a defendant might waive specific constitutional
rights, such as the right to remain silent or the right to legal counsel.
The Doctrine of Waiver
holds significant importance in areas such as contract law, litigation, and
various legal contexts where parties may opt to voluntarily forego specific
rights.
Comparative Study
India and USA
A comparative study of
the judicial review systems in India and the United States reveals similarities
and differences in the structure, scope, and functioning of their respective
judicial review mechanisms.
1. Constitutional Framework:
India: The Indian Constitution provides for judicial review primarily through
Articles 32 and 226, which empower the Supreme Court and High Courts,
respectively, to enforce fundamental rights.
USA: The U.S. Constitution establishes the power of judicial review
implicitly in the landmark case Marbury v. Madison (1803), where the Supreme
Court asserted its authority to interpret the Constitution.
2. Scope of Judicial Review:
India: Judicial review in India extends to both legislative and executive
actions. The courts can strike down laws that violate fundamental rights and
review administrative actions for legality and procedural fairness.
USA:
The U.S. judicial review system similarly covers the constitutionality of laws
and executive actions. The Supreme Court's decisions, such as those based on
the Commerce Clause or the Bill of Rights, often shape the boundaries of
governmental power.
3. Separation of Powers:
India: The Indian judiciary acts as a check on both the legislative and
executive branches. It ensures that they function within the limits set by the
Constitution and do not violate fundamental rights.
USA:
The U.S. system of checks and balances involves the judiciary reviewing the actions
of the other branches. This includes assessing the constitutionality of laws
passed by Congress and actions taken by the President.
4. Judicial Activism vs. Restraint:
India: The Indian judiciary has been known for judicial activism, where the
courts take an active role in shaping public policy and ensuring social
justice. This has led to the expansion of the scope of judicial review.
USA:
The U.S. has experienced periods of both judicial activism and restraint. The
approach often depends on the composition of the Supreme Court and prevailing
legal philosophies.
5. Public Interest Litigation (PIL) vs. Class Action
Lawsuits:
India: PIL in India allows citizens to seek judicial intervention for the
protection of public interest. It has been a crucial tool in bringing about
social and environmental reforms.
USA:
Class action lawsuits in the U.S. allow a group of people with similar claims
to collectively pursue legal action. These cases often address issues related
to consumer protection, civil rights, and environmental concerns.
6. Appointment of Judges:
India: Judges in India are appointed by the President based on the
recommendation of the collegium system, which involves senior judges of the
Supreme Court.
USA:
Federal judges in the U.S. are nominated by the President and confirmed by the
Senate. The lifetime appointment of federal judges, including Supreme Court
justices, ensures judicial independence.
7. Impact of Precedent:
India: Precedent is not as rigidly followed in India as in the U.S. The Supreme
Court may depart from its previous decisions if it believes they were wrongly
decided.
USA:
Stare decisis, the principle of following precedent, is a fundamental aspect of
the U.S. legal system. The Supreme Court often adheres to its past decisions to
provide stability and predictability in the law.
In conclusion, while both
India and the USA have judicial review systems integral to their constitutional
frameworks, the differences in their legal traditions, approaches to judicial
activism, and systems of precedent contribute to distinct practices within
their respective judicial systems.
A comparative study of
the judicial review systems in India and Britain involves examining the legal
principles, structures, and practices that govern the power of courts to review
and potentially invalidate government actions. Both countries have distinct
legal traditions and systems, so it's essential to consider their historical
context, constitutional frameworks, and evolving jurisprudence.
India and
Britain
1. Constitutional Framework:
India: The Indian Constitution, adopted in 1950, provides for judicial review
under Articles 32 and 226, allowing the Supreme Court and High Courts to
enforce fundamental rights.
Britain: The UK does not have a written constitution, but its legal system relies
on common law and statutes. Judicial review principles have evolved through
case law, and the Human Rights Act 1998 incorporates the European Convention on
Human Rights into domestic law.
2. Scope of Judicial Review:
India: The scope of judicial review in India is broad and includes the review
of legislative actions, administrative decisions, and even private actions that
affect fundamental rights.
Britain: Judicial review in the UK primarily concerns the legality, procedural fairness,
and rationality of administrative decisions. It doesn't extend to reviewing the
merits of policy decisions.
3. Grounds for Judicial Review:
India: Grounds for judicial review in India include violation of fundamental
rights, procedural impropriety, illegality, irrationality, and
unreasonableness.
Britain: The grounds for judicial review in the UK are similar, including
illegality, irrationality, and procedural impropriety. The concept of
proportionality has gained significance, especially in cases involving human
rights.
4. Separation of Powers:
India: India follows the doctrine of separation of powers, but there is a
degree of overlap between the executive and legislative branches, and the
judiciary plays an active role in maintaining this balance.
Britain: The UK traditionally has a flexible separation of powers, and the
judiciary's role in reviewing administrative actions is seen as essential for
maintaining the rule of law.
5. Evolution of Jurisprudence:
India: Indian judicial review has evolved through landmark decisions that have
expanded the scope of fundamental rights and the power of judicial review.
Public Interest Litigation (PIL) has been a significant development.
Britain: The UK has a long history of common law development in judicial review,
and significant cases, such as Anisminic v. Foreign Compensation Commission,
have shaped the legal landscape.
6. Remedies:
India: Remedies in India include writs like habeas corpus, mandamus,
prohibition, certiorari, and quo warranto. The courts can issue directions,
declarations, and damages.
Britain: Remedies in the UK include quashing orders, injunctions, declarations,
and damages. The courts have a wide range of discretionary powers.
7. Adjudicating Bodies:
India: The Supreme Court and High Courts have the authority to hear cases
involving judicial review. Specialized tribunals also play a role in
administrative law matters.
Britain: The Administrative Court within the High Court is the primary forum for
judicial review cases. The Upper Tribunal deals with certain appeals.
In conclusion, while both
India and Britain have systems of judicial review, the differences in their
legal traditions, constitutional frameworks, and the evolution of jurisprudence
result in distinct approaches to the exercise of judicial review powers. Each
system reflects the unique political, historical, and legal contexts of its
respective country.
Conclusion
In conclusion, judicial
review is a crucial aspect of legal systems in various countries, providing a
mechanism for courts to review and potentially invalidate government actions.
This process serves to ensure that government actions adhere to constitutional
principles, respect fundamental rights, and operate within the bounds of
legality, fairness, and rationality. The scope and nature of judicial review
can vary significantly among countries based on their constitutional
frameworks, legal traditions, and evolving jurisprudence.
Judicial review plays a
vital role in maintaining the balance of power among branches of government,
upholding the rule of law, and safeguarding individual rights. It serves as a
check on the potential abuse of governmental authority, preventing arbitrary
and unjust actions. The grounds for judicial review typically include
illegality, irrationality, and procedural impropriety, with some legal systems
incorporating additional principles like proportionality.
The evolution of judicial
review jurisprudence is often marked by landmark cases that shape the legal
landscape and influence the interpretation of constitutional provisions. As
seen in the comparative study between countries such as India and Britain, the
specific mechanisms, remedies, and the extent of review can differ
significantly. However, the underlying principle remains consistent — the
judiciary's role in ensuring that government actions align with the principles
of justice, fairness, and the protection of individual rights.
In a broader sense, the
concept of judicial review reflects a commitment to the idea that no branch of
government is above the law and that a robust legal system is essential for a
just and democratic society. As legal systems continue to evolve, the
application and understanding of judicial review will likely adapt to address
new challenges and ensure that the principles of justice and the rule of law
endure.