Briefly explain the doctrine of judicial review discuss the scope of judicial review
Answers
"Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India."
The Constitution of India is the supreme law of the land. The Supreme Court of India has the supreme responsibility of interpreting and protecting it. It also acts as the guardian-protector of the Fundamental Rights of the people. For this purpose, the Supreme Court exercises the power of determining the constitutional validity of all laws.
It has the power to reject any law or any of its part which is found to be unconstitutional. This power of the Supreme Court is called the Judicial Review power. State High Courts also exercise this power but their judgements can be rejected or modified or upheld by the Supreme Court.
(I) Judicial Review: Meaning and Definition:
Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India.
Judicial Review is the power of the Judiciary by which:
(i) The court reviews the laws and rules of the legislature and executive in cases that come before them; in litigation cases.
(ii) The court determines the constitutional validity of the laws and rules of the government; and
(iii) The court rejects that law or any of its part which is found to be unconstitutional or against the Constitution.
(II) Features of Judicial Review in India:
1. Judicial Review Power is used by both the Supreme Court and High Courts:
Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final power to determine the constitutional validity of any law is in the hands of the Supreme Court of India.
2. Judicial Review of both Central and State Laws:
Judicial Review can be conducted in respect of all Central and State laws, the orders and ordinances of the executives and constitutional amendments.
3. A Limitations:
Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of the Constitution.
4. It covers laws and not political issues:
Judicial Review applies only to the questions of law. It cannot be exercised in respect of political issues.
5. Judicial Review is not automatic:
The Supreme Court does not use the power of judicial review of its own. It can use it only when any law or rule is specifically challenged before it or when during the course of hearing a case the validity of any law is challenged before it.
6. Decisions’ in Judicial Review Cases:
The Supreme Court can decide:
(i) The law is constitutionally valid. In this case the law continues to operate as before, or
(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from the date of the judgment.
(iii) Only some parts or a part of the law is invalid.
In this case only invalid parts or part becomes non-operative and other parts continue to remain in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot operate without it, then the whole of the law gets rejected.
7. Judicial Review Decision gets implemented from the date of Judgement:
When a law gets rejected as unconstitutional it ceases to operate from the date of the judgment. All activities performed on the basis of the law before the date of the judgment declaring it invalid, continue to remain valid.
8. Principle of Procedure established by Law:
Judicial Review in India is governed by the principle: ‘Procedure Established by Law’. Under it the court conducts one test, i.e., whether the law has been made in accordance with the powers granted by the Constitution to the law-making body and follows the prescribed procedure or not. It gets rejected when it is held to be violative of procedure established by law.
9. Clarification of Provisions which a rejected law violates:
While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the constitution which it violates. The court has to clearly establish the invalidity of the concerned law or any of its part.
Explanation:
"Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India."
The Constitution of India is the supreme law of the land. The Supreme Court of India has the supreme responsibility of interpreting and protecting it. It also acts as the guardian-protector of the Fundamental Rights of the people. For this purpose, the Supreme Court exercises the power of determining the constitutional validity of all laws.
It has the power to reject any law or any of its part which is found to be unconstitutional. This power of the Supreme Court is called the Judicial Review power. State High Courts also exercise this power but their judgements can be rejected or modified or upheld by the Supreme Court.
(I) Judicial Review: Meaning and Definition:
Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India.
Judicial Review is the power of the Judiciary by which:
(i) The court reviews the laws and rules of the legislature and executive in cases that come before them; in litigation cases.
(ii) The court determines the constitutional validity of the laws and rules of the government; and
(iii) The court rejects that law or any of its part which is found to be unconstitutional or against the Constitution.
(II) Features of Judicial Review in India:
1. Judicial Review Power is used by both the Supreme Court and High Courts:
Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final power to determine the constitutional validity of any law is in the hands of the Supreme Court of India.
2. Judicial Review of both Central and State Laws:
Judicial Review can be conducted in respect of all Central and State laws, the orders and ordinances of the executives and constitutional amendments.
3. A Limitations:
Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of the Constitution.
4. It covers laws and not political issues:
Judicial Review applies only to the questions of law. It cannot be exercised in respect of political issues.
5. Judicial Review is not automatic:
The Supreme Court does not use the power of judicial review of its own. It can use it only when any law or rule is specifically challenged before it or when during the course of hearing a case the validity of any law is challenged before it.
6. Decisions’ in Judicial Review Cases:
The Supreme Court can decide:
(i) The law is constitutionally valid. In this case the law continues to operate as before, or
(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from the date of the judgment.
(iii) Only some parts or a part of the law is invalid.
In this case only invalid parts or part becomes non-operative and other parts continue to remain in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot operate without it, then the whole of the law gets rejected.
7. Judicial Review Decision gets implemented from the date of Judgement:
When a law gets rejected as unconstitutional it ceases to operate from the date of the judgment. All activities performed on the basis of the law before the date of the judgment declaring it invalid, continue to remain valid.
8. Principle of Procedure established by Law:
Judicial Review in India is governed by the principle: ‘Procedure Established by Law’. Under it the court conducts one test, i.e., whether the law has been made in accordance with the powers granted by the Constitution to the law-making body and follows the prescribed procedure or not. It gets rejected when it is held to be violative of procedure established by law.
9. Clarification of Provisions which a rejected law violates:
While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the constitution which it violates. The court has to clearly establish the invalidity of the concerned law or any of its part.