JUDICIAL REVIEW
INTRODUCTION
Judiciary has the ultimate power to review and determine the validity of a law or order which is described as the powers of ”Judicial review”. In India, this system is governed by the principle of ‘procedure established by law’ under which there is one test i.e. test whether the law is made in accordance with the procedures of the law or not, if not it will be declared unconstitutional.
There is a rule of law in India and here the constitution is the supreme law. Indian constitution is the law of the country, and if any law violates the basic structure of the constitution then the Indian Judiciary has the power to nullify that law.
HISTORICAL BACKGROUND
The concept of Judicial Review first started in the United States of America The word Judicial Review was Summarized in Marbury v.Madison in 1803 by John Adams who was the president of that time, lost the presidential election to Thomas Jefferson.
On his last day, Adam appointed William Marbury as the Justice of the Peace and others to positions in government but when Jefferson came to power, he was against it, so he stopped Secretary of State Madison from giving appointment letters to Judges. Marbury, one of the Judges, approached the Supreme Court and filed a writ of Mandamus. The court refused to consider the petition and first opposed the order of the Legislature i.e. congress and thus the Supreme Court of the USA developed the principle of Judicial Review.
CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEW
The power of Judicial Review is vested in many articles. These articles are Article 13, 32,131-136,143,226, 145, 246,254,251 and 372 These articles will be explained in brief below ;
ARTICLE 13 Any law that contravenes any of the provisions of the part of fundamental rights should be void.
ARTICLE 32 provides the right to constitutional remedies which means that a person has the right to move the Supreme Court for enforcement of fundamental rights and empowers the Supreme Court to issue writs.
ARTICLE 226 Empowers high courts to issue writs for enforcement of fundamental rights.
ARTICLE 143 of the Constitution of India’s power of the president to consult the supreme court that is related to the question of law or fact of public importance.
ARTICLE 372 (1) says that any law that exists before the commencement of the Constitution shall be continued unless it is repealed by the law.
ARTICLE 131-136 The courts have the power to adjudicate disputes between individuals and between the states and the union.
ARTICLE 245 states that the power of both the parliament and the state legislature is subject to the provision of the constitution. The validity of any law can be challenged before the court on specific matters if the law violates any fundamental rights.
ARTICLE 246 (3) states that the power of parliament and the state legislature are subject to provisions of the constitution of India.
Articles 251 and 254 state that in the case of inconsistency between union and state laws, the state laws will become void.
CASES OF JUDICIAL REVIEW IN INDIA
In Shankari Prashad v. Union of India First Amendment Act 1951 is before the Supreme Court on the ground that the ”Right to Property” has been restricted by the act and it has been argued that it is not created as a fundamental right under Article 13 (2). The Supreme Court rejected this argument and said that the conditions of Article 368 are universal in their entirety, and Parliament has the right to amend the Constitution without any exceptions.
Golaknath v. State of Punjab
Dealt with amending the power of parliament with respect to fundamental rights, the right to hold and acquire property was a fundamental right under Article 19(1)(f)
Questions
1. Whether parliament by law amend fundamental rights?
2. Whether such an amendment is a law under Article 13(2)?
Judgment
Fundamental rights cannot be amended
The Constitutional Amendment Act was also a ‘law’ under Article 13(2).
CONCLUSION
Judicial Review is an essential feature of the Indian constitution which ensures that the laws passed by the legislature and the functioning of the executive are in accordance with the constitution.
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Author: Purnima kankrayne, 2nd year LL.B., Allahabad University
