INTRODUCTION
The right of judicial review is not expressly granted to federal courts by the Constitution. Scholars debated when the right to review laws first appeared in the late nineteenth century, in the midst of a lively political dispute over whether courts were using the power of judicial review too vigorously. Just five cases were found between the start of the Federal Constitutional Convention and Marbury in which courts declined to enforce laws because they were unconstitutional, according to Professor Sylvia Snowiss, whose 1990 book Judicial Review and the Law of the Constitution is the leading historical study of early judicial review.
Judicial review is an exceptional power in the hands of Judiciary. It is a power to declare any law null and void made by any other branch of government which violates the fundamental rights of the citizens. It holds a great essence in a democratic Nation, there are always two groups of people, one who advocates the Judicial Review and branded as enemies of the legislature another who always tries to supersede the Judiciary. It is important to note that independency of judiciary should never be in danger and must deliver independent decisions to protect the constitution. Henceforth, judiciary is a custodian of nation’s legal system to guard against the legislature’s tendency to overstep its authority’s limits. The institution of judicial review oversees the decisions taken by the executive branch, just as the police combat crime and the Holy Inquisition protects the religion.
This independence of the Judges is equally essential to protect the Constitution and the rights of individuals from the effects of those ill humours which the arts of designing men have created. However, the discretion of judges can be an important protection against the consequences of society’s occasional ill humours, and not only for infractions of the Constitution. These may also be limited to the violation of private rights of specific groups of people as a result of unjust and partial legislation. The object of judicial review, according to author’s interpretation, is to promote the expression of grievances by providing a hearing i.e. also be termed as right-to-a-grievance. One of the key duties of Roman tribunals, which had the power to veto proposed legislation and administrative acts, was to redress complaints. Furthermore, one of the English Parliament’s primary tasks has been to seek redress for individual grievances.
According to the right-to-voice-a-grievance conception of judicial review, judicial review realises the right to a hearing by allowing those who have a grievance access to the courts; additionally, judicial review offers the requisite form of deliberation. The right-to-a-hearing conception of judicial review considers it necessary to have the ability to hear particular cases and deliberate an opportunity that is a distinguishing feature of judicial review.’ The aim of the courts is to hear complaints. If individuals have a right to a hearing, this right both explains and justifies the fact that judicial review is entrusted to a judicial body, and that statutory judicial review, as practised in common law countries, occurs only in the context of concrete cases and controversies involving individual rights. When one wants to violate another person’s rights, one should usually give that person a chance to be heard. Failure to have a hearing, results in lawsuits, indicating that such a duty exists.
APPLICATION OF DOCTRINE OF JUDICIAL REVIEW IN INDIA
In Indian scenario, there has been no express provision with respect to judicial review. It is generally believed that power of judicial review of Supreme court is traceable to article 13(1) & (2)[1] and article 32(1)[2], that of High court is generally drawn from article 226[3] of Indian Constitution. Article 13(2) explicitly prohibits the legislature not to make any law in contravention of part III, and the same shall be declared void. Further article 32 states that a Supreme Court has a power of hear any grievances with respect to part III and same shall enforce them. Article 226, on the other hand, gives the High Courts the authority to strike down laws that violate not only the provisions of that part, but also “for some other reason.” As a result, the High Courts’ judicial review authority encompasses not only Part III but also the rest of the constitution. As a result, the Supreme Court of India and the High Courts have been given the power of judicial review in all three ways, as far as is commonly known, namely, first, the power of the courts to review delegated or subordinate legislation and executive actions in terms of their compliance with the parent Acts. This is known as the “ultra vires” doctrine, and it is used by courts in England, the United States, and India. Second, under federal constitutions, courts have the authority to implement the scheme of legislative power sharing between the federal government and the provinces. Thirdly, judicial review in its third and most widely used context refers to the courts’ ability to declare legislative acts invalid if they are in violation of the country’s fundamental law, the Constitution. Further, in historical judgment of Supreme court, judicial review was held to a part of basic structure doctrine.[4] In stark contrast to US practise, India’s Supreme Court has consistently held from the start that constitutional amendments are reviewable in general. It began nullifying constitutional amendments on substantive grounds after the Golaknath decision in 1967. In this case, Supreme court for the first held that parliament cannot abridge fundamental rights and the amendments shall be subjected to judicial review and cannot only be reviewable but can also be declared unconstitutional. Prior to this judgment, supreme court did reviewed various constitutional amendment Act’s such as 1st C.A.A, 1951, 17thC.A.A, 1965 which shows the inherent power of judiciary to review even the constitutional amendments.
APPLICATION OF DOCTRINE OF JUDICIAL REVIEW IN U.S.A
The United States of America adopted a written Constitution with a federal polity, creating a government that is constitutionally limited or governed. The American constitutional framework established fertile ground for the creation of the judicial review doctrine, in which the federal Supreme Court would be the arbiter in enforcing federal principles and protecting people’s rights. “The limited Constitution can be maintained in effect no other way than by the medium of courts of justice, whose task it must be to make all actions contrary to the manifest tenor of the Constitution void,” Hamilton, one of the American Constitution’s founding fathers, argued.[5] In the locus classicus Marbury v. Maddison, it was Chief Justice John Marshall who articulated and authenticated the modern theory of judicial review. The doctrine of judicial review was established by the learned Chief Justice on the following fundamental principles:
- The Constitution is the “fundamental and supreme Law of the land” and therefore commands supremacy.
- In the case of written constitutions, especially those of federal character, the court must serve as an arbiter in preserving the balance of legislative power distribution between the union and the federating units.
- Despite the fact that it is not explicitly stated, the right of judicial review is inherent in the federal Constitution.
- “It is categorically the province and responsibility of the judicial service to determine what the law is.
- The President of the United States and Supreme Court judges have taken an oath to uphold the Constitution.
Over time, the concept of judicial review has become a cornerstone of American constitutional jurisprudence, and the right of judicial review has come to be used by federal and state supreme courts to assess the legality of federal and state legislators and governments’ legislative and executive decisions. In U.S the approach towards the reviewability of the constitutional amendments is different from India. In the landmark judgment of Coleman v. miller, the judgment precluded the judicial review of constitutional amendments on both substantive and procedural questions and first time declared constitutional amendments to be a political questions. Further, the court stated unequivocally that Congress has “sole and full power over the amending process” under Article V of the US Constitution. The Supreme Court found constitutional amendments to be “political issues,” and therefore they were declared outside the scope of its judicial review authority.
CONCLUSION
Since judicial review of constitutional amendments is “the pinnacle of judicial activism,” the judiciary of a given country can only uphold the high standard if the citizens of that country recognise the validity of such an endeavour. The existing judicial review procedure could be transformed if people’s perceptions of the Constitution and democratic institutions shift. The judiciary’s work is an important part of the ongoing process of deliberation and legislation. Judicial review gives injured parties a voice and enables the specifics of individual cases to be included in the state’s decision-making process.
[1] 13. Laws inconsistent with or in derogation of the fundamental rights, (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.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
[2] 32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
[3] 226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, 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
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32
[4] Keshvananda Bharti v. state of Kerela
[5] Alexander Hamilton, The federalist 28.
