CONSTITUTION: JUDICIAL REVIEW
Two words, "judicial" and "reviews," become the overarching fulcrum to test the validity, viability, compatibility, or consistency of laws, rules, regulations, orders, decrees, and so on in relation to the constitution of the land in a certain "context." The creatures of the constitution—the legislature, executive, and judiciary—need to perform their duties within the constitutional confines. If the legislature is to legislate and the executive is to execute, then the judiciary is to interpret what is just or unjust to maintain the constitutional balance. In constitutional parlance, all organs need to maintain and perform within their respective spheres.
It entails the "Judiciary" conducting an examination or reexamination, study or restudy, evaluation or reevaluation, retrospection or survey to determine the validity, compatibility, alignment, or consistency of laws, rules, regulations, orders, or decrees issued by any state institutions (legislative, executive, or administrative) or public functionaries in accordance with the constitution or laws of the land.
Since it is in
accordance with the constitution, it may be called "constitutional judicial review."
In the case of a democratic setup
where there is a written constitution but where there is none, the overarching
judicial review is confined to "administrative review" only, as in
the other British system. The judicial review is meaningful in the context of a
democratic constitutional setup. Where the validity of legislative and executive action
must be within the perimeter of
constitutional supremacy,
The question of judicial review is completely anathema in a totalitarian, dictatorial, or theocratic state.
2.
Implied Power
But the pertinent issue that arises here is ‘who is to see that the constitution is upheld and constitutional balance is maintained? The derivation from this comes directly to the judiciary for validation as it is not directly involved in legislation nor in the execution part. As such, It is implied from the Constitution of India.
3.
Cases
3.1.
India
Incase of India, various provisions of the Constitution of India give the power of validation and interpretation to the judiciary under the superintendence of the Supreme Court of India.
3.1.1. Art 13 (1): All laws in
force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be
void.
Art 13(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.
3.1.2. Art 32. Remedies for
enforcement of rights conferred by this Part.—
(1) The right to move the Supreme Court of India by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court of India shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
(Art.
226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in article 32 3***, every High Court shall have
power, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including 4[writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.)
The Supreme Court
shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred
by this Part.
3.1.3. Art 129. Supreme Court to be a court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
3.1.4. Art 131. Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Government of India and one or more States; or
between
the Government of India and any State or States on one side and one or more
other States on the other; or
between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
Through the implied power the Supreme Court of India also declared a number of Constitutional amendment as void as the are not in consonance with the basic structures of the Constitution.
Declared
fully null and void.
For
the first time in indpendent India the Supreme Court of India on 16th
Ocober 2015 by a 4-1 majority struck down the twin acts of the Parliament of
India, the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National
Judicial Appointments Commission Act, 2014, in their entirities as unconstitutional as they violate the
Basic Structure of the Constitution of India.
Justices
J S Khehar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel declared the 99th
Amendment and NJAC Act unconstitutional while Justice Chelameswar upheld it.
3.1.6. The Constitution (Ninety-Seventh Amendment) Act, 2011
Declared
partially void.
A three-judge bench of the Supreme Court on 20 July 2021 quashed part of the 97th Amendment Act and Part IX B of the Constitution which governs the “Cooperative Societies” in the country. he Supreme Court on July 20 in a 2:1 majority verdict upheld the validity of the 97th constitutional amendment that deals with issues related to effective management of cooperative societies but struck down a part inserted by it which relates to the Constitution and working of cooperative societies. A three-judge bench of the Supreme Court on Tuesday quashed part of the 97th Amendment Act and Part IX B of the Constitution which governs the “Cooperative Societies” in the country.
3.1.7. The Constitution
(Fifty-Second Amendment) Act, 1985
‘The court overturned paragraph 7 and invoked the doctrine of severability to support the remainder of the paragraphs of the tenth schedule. “The elimination from the jurisdiction of the courts u/paragraph 7 was incidental and to reinforce the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions of the tenth schedule if he had known that paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule alone cannot stand even if the paragraph is deemed unconstitutional. The provisions of paragraph 7 can, therefore, be considered to be separable from rest of the provisions. “, the court stated.’
3.1.8. The Constitution (Forty-Second Amendment) Act, 1976
Part XIVA of the Constitution was incorporated through Section 46 of the Constitutional Law (42nd Amendment) of 1976 with effect from March 1, 1977. It included two provisions, Articles 323A and 323B. The Court ruled clause 2 (d) of article 323A and clause 3 (d) of article 323B to be unconstitutional, to the extent that they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution.’
3.1.9. The Constitution
(Forty-Second Amendment) Act, 1976
‘The Supreme Court in the “Minerva Mills Ltd. and others Vs. Union of India(1980) and Constitution (42nd Amendment) Act ,1976 – Limitations on judicial review” stated that Section 4 of the Constitutional Amendment Act 42 is outside the amending power of Parliament and is void since it damages the fundamental or essential characteristics of the Constitution and destroys its basic structure.’
3.1.10. The Constitution
(Thirty-Ninth Amendment) Act, 1975
Clause 4 of this Act inserted Articles 71(2) and 329A which provided that disputes regarding the election of four high officials, namely, the President, Vice-President, the Prime Minister and Speaker of the Lok Sabha, should be adjudicated by whatever authority and procedure was provided by law, and that any court order, made before its commencement, declaring such an election to be void, should be deemed null and void. This was struck down as unconstitutional in Indira Gandhi vs Raj Narain (1975). The 39th Amendment also extended immunity to a number of statutes from judicial purview on the ground of infringement of Fundamental Rights by including them in the Ninth Schedule. But only clause 4 was challenged in Indira Gandhi.
3.1.11. The Constitution
(Thirty-Second Amendment) Act, 1973
It inserted Article 371D of the Constitution, which excluded High Court’s power of judicial review. In P Samba Murthy vs State of Andhra Pradesh, (1986), the court struck down Clause (5) of Article 371D along with the Provison, as unconstitutional and void. This provison conferred power on the State Government to modify or annul the final order of the Administrative Tribunal.
3.1.12. The Constitution
(Twenty-Fifth Amendment) Act, 1971
The
Court in the “Kesavananda Bharati Vs. the State of Kerala(1973) and Constitution (25th Amendment) Act, 1971” held that the real
issue is different and of much greater importance, the issue being : what is
the extent of the amending power conferred by Article 368
of the Constitution, apart from Article 13(2),
on Parliament ?
The
thirteen-judge bench of the Supreme Court in Keshwanand Bharti Case 1973 by
a majority of 7:6 held that the Parliament has
the authority to amend any clause of the constitution as long as the amendment
does not violate the Basic Structure of the Constitution.
he
apex court upheld the entire 24th Constitutional Amendment Act 1971 but
considered the first part of the 25th Constitutional Amendment Act 1972 to be
intra vires and the second part to be ultra vires.
The court, using social engineering and balancing the interests of both litigants, determined that neither the Parliament nor the Supreme Court has the authority to corrode the Basic Structure of the Constitution, nor can it withdraw the mandate to create a welfare state and a fair society. The Basic Structure Doctrine was thus formulated in the Kesavananda case which implied that, although the Parliament has the authority to amend the entire Constitution, they must do so in a way that does not contradict the features so fundamental to the Constitution that it would be spiritless without them.
3.2. USA
Judicial review in the USA is an implied power, as it is not specifically mentioned in any part of the U.S. Constitution. It evolves due to judicial construction. The judicial construction encompasses the executive's treaty-making authority as well as congressional ratification.
In Marbury v. Madison (1803), the Supreme Court ruled that, because the Constitution clearly states that it is the supreme law of the land and because it is the province of the judiciary to uphold the law, the courts must declare state laws and even acts of Congress null and void when they are inconsistent with a provision of the Constitution. The same principle holds with regard to executive actions, contrary to the Constitution. Supreme Court pronouncements on questions of constitutionality are final and binding for all other courts and governmental authorities, whether state or federal.
The US Supreme Court declared more than two hundred acts of Congress wholly or partially unconstitutional.
However, sometimes the US Supreme Court imposes self-limitation on the justiciability of a particular legislative or executive action. as it is "not bound to consider all the provisions of the Constitution justiciable." Under the doctrine of "political questions," the Supreme Court has at times refused to apply standards prescribed by or deducible from the Constitution to issues that it believed could be better decided by the political branches of government. Since Luther v. Borden (1849), for example, it is a matter of settled practise that the Court will not use Article IV, Section 4—which provides that the states must have a republican form of government—to invalidate state laws; it is for Congress and the President to decide whether a particular state government is republican in form. Many military and foreign policy issues, such as the constitutionality of a particular war, have also been deemed political and thus unjusticiable.
Another limitation on the judiciary is jurisdiction stripping by the Congress to limit the appellate jurisdiction of the Supreme Court.
3.3.
UK and Canada
Judicial review in the UK and Canada has its roots in the English common-law system, where any judicial review means administrative review and is confined to the prerogative writs of certiorari and mandamus, and actions for damages.
It is "because there also exists a long practice of judicial review of the actions of administrative agencies that requires neither that courts have the power to declare those actions unconstitutional nor that the country have a written constitution. Such "administrative review" assesses the allegedly questionable actions of administrators against standards of reasonableness and abuse of discretion. When courts determine challenged administrative actions to be unreasonable or to involve abuses of discretion, those actions are declared null and void, as are actions that are judged inconsistently with constitutional requirements when courts exercise judicial review in the conventional or constitutional sense.
Whether or not a court has the power to declare the acts of government agencies unconstitutional, it can achieve the same effect by exercising "indirect" judicial review. In such cases, the court pronounces that a challenged rule or action could not have been intended by the legislature because it is inconsistent with some other laws or established legal principles."
3.4.
Japan
Japan has a liberal democratic system of parliamentary government based on a 1946 written constitution. Article 81 of its constitution defines the Supreme Court as a court of last resort and allows it to conduct judicial review through "the power to determine the constitutionality of any law, order, regulation, or official act." But it rarely uses its power to declare any act of parliament (Diet) unconstitutional. This may be due to the short tenure of its judges.
4.
Remarks
If a comparative assessment is to be carried out Indian judiciary headed by the Supreme
Court of India is much more proactive in exercising
its authority. Even in some cases it
can suo motu take up any action of the executive or legislature to see its compatibility with the Constitution of India or its raison d'etre as such. As a
practice, unlike the American Supreme Court, it refrains from entering into
treaty matter or foreign policies of the Government of India.
-Asutosh Satpathy
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