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Discussions on Judicial Review In India

The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution. Actually the idea of judicial review implies the amendment of the declaration or sentence of a lower court by a higher court. Judicial review has a more specialized importance in pubic law, especially in nations having […]

The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution.

Actually the idea of judicial review implies the amendment of the declaration or sentence of a lower court by a higher court. Judicial review has a more specialized importance in pubic law, especially in nations having a composed constitution which are established on the idea of restricted government.

The convention of judicial review has been started and created by the American Supreme Court, in spite of the fact that there is no express arrangement in the American Constitution for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had the force of judicial review.

There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts proclaim void the demonstrations of the council and the official, on the off chance that they are found disregarding the arrangements of the Constitution.

The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No official courtroom there can pronounce a parliamentary order invalid. In actuality each court is compelled to implement each arrangement” of the law of parliament. Under the constitution of India parliament is not Supreme.

Its forces are constrained in the two ways. To begin with, there is the division of forces between the union and the states. Parliament is equipped to pass laws just regarding those subjects which are ensured to the residents against each type of authoritative infringement. Being the guardian of Fundamental Rights and the referee of protected clashes between the union and the states regarding the division of forces between them, the Supreme Court remains in an interesting position where from it is skilled to practice the force of investigating administrative institutions both of parliament and the state governing bodies.

Dr. M.P. Jain has rightly observed: “The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution.”

The power of judicial review of legislation is given to the judiciary both by the political theory and text of the constitution. There are several specific provisions in the Indian constitution, judicial review of legislation such as Act 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372. Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly. Article 13 specifically declares that any law which contravenes any of the provision of the part of Fundamental Rights shall be void.

Under our Constitution, judicial review can conveniently be classified under three heads:

(1) Judicial review of Constitutional amendments.-This has been the subject-matter of consideration in various cases by the Supreme Court; of them worth mentioning are: Shankari Prasad case , Sajjan Singh case, Golak Nath case , Kesavananda Bharati case , Minerva Mills case, Sanjeev Coke case and Indira Gandhi case. The test of validity of Constitutional amendments is conforming to the basic features of the Constitution.

(2)Judicial review of legislation of Parliament, State Legislatures as well as subordinate legislation.-Judicial review in this category is in respect of legislative competence and violation of fundamental rights or any other Constitutional or legislative limitations;

(3) Judicial review of administrative action of the Union of India as well as the State Governments and authorities falling within the meaning of State.

Therefore judicial review is a fundamental principle of law that every power must be exercised within the four corners of law and within the legal limits. Exercise of administrative power is not an exception to that basic rule.

At the same time, however, the power of judicial review is not unqualified or unlimited. If the courts were to assume jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits), the courts would assume jurisdiction to do the very thing which is to be done by administration.

The historic case of Golak Nath vs. The state of Punjab was heard by a special bench of 11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged. The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed. (1) Article 368 only provides a procedure to be followed regarding amendment of the constitution. (2) Article 368 does not contain the actual power to amend the constitution. (3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list. (4) The expression ‘law’ as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power. (5)The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) of it takes away or abridges the rights conferred by part III of the constitution. (6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution. (7) Parliament will have no power from the days of the decision to amend any of the provisions of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined there in

The improvement of judicial review in India is acquired from the British frontier time and its protected framework and the result of precedent-based law legal framework is the entrepreneur way of the established instrument.