Describe the concepts of judicial review & dispute resolution in the Indian judicial system.
Answers
the judiciary plays a very important role as a protector of the constitutional values that the founding fathers have given us. they try to undo the harm that is being done by the legislature by the legislature and the executive and also they try to provide every citizen what has been promised by the constitution under the directive principles of state policy. all this is possible thanks to the power of judicial review.
all this is not achieved in a day it took 50 long years for where we are right now, if one thinks that it is has been a roller coaster ride without any hindrances they are wrong judiciary has been facing the brunt of many politicians, technocrats, academicians, lawyers etc. few of them being genuine concerns, and among one of them is the aspect of corruption and power of criminal contempt. in this paper i would try to highlight the ups and downs of this greatest institution in india.
the rule of law is the bedrock of democracy, and the primary responsibility for implementation of the rule of law lies with the judiciary.1 this is now a basic feature of every constitution, which cannot be altered even by the exercise of new powers from parliament. it is the significance of judicial review, to ensure that democracy is inclusive and that there is accountability of everyone who wields or exercises public power. as edmund burke said: "all persons in positions of power ought to be strongly and lawfully impressed with an idea that "they act in trust," and must account for their conduct to one great master, to those in whom the political sovereignty rests, the people".2
india opted for parliamentary form of democracy, where every section is involved in policy-making, and decision taking, so that every point of view is reflected and there is a fair representation of every section of the people in every such body. in this kind of inclusive democracy, the judiciary has a very important role to play. that is the concept of accountability in any republican democracy, and this basic theme has to be remembered by everybody exercising public power, irrespective of the extra expressed expositions in the constitution.3
the principle of judicial review became an essential feature of written constitutions of many countries. seervai in his book constitutional law of india noted that the principle of judicial review is a familiar feature of the constitutions of canada, australia and india, though the doctrine of separation of powers has no place in strict sense in indian constitution, but the functions of different organs of the government have been sufficiently differentiated, so that one organ of the government could not usurp the functions of another.4
the power of judicial review has in itself the concept of separation of powers an essential component of the rule of law, which is a basic feature of the indian constitution. every state action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt raised in that behalf, by the courts. the power of judicial review is incorporated in articles 226 and 227 of the constitution insofar as the high courts are concerned. in regard to the supreme court articles 32 and 136 of the constitution, the judiciary in india has come to control by judicial review every aspect of governmental and public functions.5