What do you understand by Judicial review? Discuss the features of Judicial Review in India and the issues associated it?

 1. What do you understand by Judicial review? Discuss the features of Judicial Review in India and the issues associated it? 

Answer 

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. Under Article 13(2) of the Constitution of India, any law made by the parliament that abridges the right conferred to the people under Part 3 of the constitution is void-ab-initio. The power to interpret the Constitution of India to its full extent lies within the Judiciary. Power of Judicial Review is vested in many articles such as 13, 32,136, 142, 147 of the constitution. 

Features of Judicial Review in India: 

• Judicial Review Power is used by both the Supreme Court and High Courts. But the final power to determine the constitutional validity of any law is in the hands of the Supreme Court of India.

 • 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. 

• 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. 

• Judicial Review is not automatic: The Supreme Court does not use the power of judicial review on 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. 

• Principle of Procedure established by Law: Judicial Review is governed by the principle of “Procedure established by law” as given in Article 21 of the Indian Constitution. The law has to pass the test of constitutionality if it qualifies it can be made a law. On the contrary, the court can declare it null and void. 

• 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. 

Issues Associated With Judicial Review In India 

• Undemocratic: The critics describe Judicial Review as an undemocratic system. It empowers the court to decide the fate of the laws passed by the legislature, which represent the sovereign will of the people. 

• Lack of Clarity: The Constitution of India does not clearly describe the system of Judicial Review. It rests upon the basis of several articles of the Constitution. 

• Source of Administrative Problems: Now a law can face judicial review only when a question of its constitutionality arises in any case being heard by the Supreme Court. Such a case can come before the Supreme Court after 5 or 10 or more years after the enforcement of that law. As such when the Court rejects it as unconstitutional, it creates administrative problems.

• Delaying System: Judicial Review is a source of delay and inefficiency. The people in general and the law-enforcing agencies in particular sometimes decide to go slow in respect of the implementation of a law. They prefer to wait and let the Supreme Court first decide its constitutional validity in a case that may come before it at any time. 

• Tends To Make The Parliament Less Responsible: Judicial Review can make the Parliament irresponsible as it can decide to depend upon the Supreme Court for determining the constitutionality/ reasonableness of a law passed by it. 

• Reversal Of Its Own Decisions By The Supreme Court: It is on record that on several occasions the Supreme Court reversed its earlier decisions. The judgment in the Golaknath case reversed the earlier judgments and the judgment in the Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment was held valid, then invalid and then again valid. Such reversals reflect the element of subjectivity in the judgments. 

Conclusion

 In India, we have adopted the concept of separation of power so we cannot assume the power of judicial review in full extended form. If the courts presume full and arbitrary power of judicial review, it will lead to the poor performance of work by all the organs of government. So, to keep all the functions work properly, each has to work in its provided sphere. In India, we have the concept of judicial review embedded in the basic structure of the constitution. It helps the courts to keep a check and balance upon the other two organs of government so that they don’t misuse their power and work in accordance with the constitution.

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