Introduction
Constitution of India is the supreme law, the apex court invested with the power. As a guardian to protect the fundamental right and the basic feature of the constitution. Any issue related to the constitutional provision or validity lies in the domain of supreme court. This is because the Supreme court is also found the authority for interpreting the constitution.
The supreme court evoking power under article 13 of the constitution of India. It can declare a law as in constitution or void. If such case law in volatile of the fundamental right in the constitution. Thus the article 13 is the main basis for evoking the power of the judicial review by the high court.
Judicial review is a process under whereby executive and legislative actions need review by the judiciary. The courts have to assess whether a law is in compliance with the constitution or not. Under judicial review, the court may invalidate laws and decisions that are arbitrary. As per the constitution particularly violation of the fundamental right or due process or rule of law.
This aspect of a constitution makes it a living constitution, which guides governance and decision of the legislature. Judiciary exercises check and balance an arbitrary action of executive and legislative by judicial review. Where every one organ of government exceeds its limits given by the constitution.
Definition
A Judicial review is the power of the apex Court of the United States to review actions taken by the legislative branch (Congress) and the executive branch (president). Decide whether the actions are legal under the Constitution. The court can invalidate an action if it is not according to the constitutional. Judicial review is an essential part of checks and balances within the federal government giving the Supreme Court (judicial branch) equal power with the other two branches of Government.
Judicial Review in India:
In early years after independence apex court adopted an approach characterized by caution and circumspection following the British tradition of limited judicial review the court normally adopted a pro-legislature attitude. This is clear from a famous A. K. Gopalan case, however, it did not take long for judges to break this attitude. This led to several cases related to the right to property in which the judiciary was loggerhead with the parliament. The entire nation witnessed a series of such events where a decision of apex court tried to nullify by legislation and it went on.
The struggle between the two pillars of government continued on various issues such as the power of amending the constitution. During (1970-1980) the legislature sought to bring forth policies based on socialist measures and amendments made in the preamble by inserting socialist, secular and fraternity, in article 13 of the Indian constitution sub-clause (4) was Making amendment not challenged in the court of law. They attempted to protect the apex court having concern for the interests of propertied classes only A\and insensitive to the needs of the masses.
After the period of emergency, the judiciary was on the receiving end for having delivered a series of judgments. Many perceived which as being volatile of the basic human rights of Indian citizens and it changed the way it looked at the constitution. The Supreme Court said any legislation is amenable to judicial review. But it is momentous amendments8 to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect the life of a citizen.
Judicial review extends to every governmental or executive action – from high policy matters like the President’s power to issue a proclamation on failure of constitutional machinery in the States like in Bommai case, to the highly discretionary exercise of the prerogative of pardon like in Kehar Singh case or the right to go abroad as in Satwant Singh case. Judicial review knows no bounds except the restraint of the judges themselves regarding justifiability of an issue in a particular case.
The Judiciary has the power of judicial review by which:
(i) The laws and rules of the legislature and executive are reviews by the court in every case that come before the court; in litigation cases.
(ii) The court decided on the constitutional validity of the laws and rules of the government.
(iii) The court has the power to reject any law or its part if they find it to be unconstitutional or against the Constitution.
Features of Judicial Review in India:
- Both uses judicial Review Power the Apex Court and High Courts:
The power of Judicial Review exercised by both the Apex Court and high court. But the final power to decide the constitutional validity of any law is in the hands of the Apex Court of India.
- Judicial Review of Central and State Laws:
It can carry judicial Review out in the aspect of all Central and State laws, the orders and decree of the executives and constitutional amendments.
- A LIMITATION:
It can carry judicial Review out in the aspect of the laws incorporated in the 9th Schedule of the Constitution.
- The judicial review covers laws and not political issues:
It can be only applying to the questions of law. They can exercise it in the aspect of political issues.
- Judicial Review is not automatic:
The Apex Court does not use the power of judicial review of its own. when any law or rule is specifically confronting before it then only apex court use the power of the judicial review or when during hearing a case, the validity of any law confronted before it.
- Judicial Review Decision gets implemented from the Judgement:
- When law gets decline as unconstitutional it ends to operate from the judgment. All activities performed based on the law before the date of the judgment are invalid, remain valid.
Conclusion:
Based on the above discussion, for any democracy to survive, the power of the court called judicial review is paramount. Judicial review is the backbone of a democratic process in a country.
However, judicial review has shortcomings in terms of apprehension that……… can sometimes exceed their jurisdiction and power to control or direct the other organ of governance. This time may lead to what we call judicial activism.
Frequently, the Hon’ble apex court has held that judiciary should restraint from exercising judicial over activism and crossing the jurisdiction.
From the above observations, judiciary exercises an attitude of self-restraint. If we look at the judgment of the apex court on the certain question of fundamental issues related to constitutional law, we see that there is a sharp division among the judges of the apex court on such basic questions of the power of the Parliament to amend the Constitution, federal relations, powers of the President, etc. This aptly shows the observation of the judge. It has taken the decision by various courts which are not good at constitutional validity under judicial review by the apex court. Every apex court can review its own verdict.
Judicial self-restraint in relation to legislative power manifests itself in the form then there is a presumption of constitutionality when the validity of the statute is a challenge. In the words of Fazl Ali, “… the presumption is always in favor of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.