Monday, February 12, 2018

Supreme Court & High Court Judicial Review Power

The concept of Judicial Review was propounded in the United States of America in the Marbury vs Madison case of 1803 whose judgement was delivered by the then Chief Justice of the Supreme Court of America, John Marshal.

However when we talk about India, the power of Constitutional Review in India has been vested with the Supreme Court and High Court through the Constitution of India itself.

Also the Supreme Court of India has declared the Judicial Review power of the Supreme Court and High Court in India as a basic structure of the Constitution which cannot be taken away even by way of a Constitutional amendment.

If during the Judicial Review,any legislative enactment/executive order of either State Government or Central Government is found to be in violation of the Constitution it will be declared as invalid.

Judicial Review is basically of three types in accordance with the view of the Supreme Court - 


# Judicial review of constitutional amendments.
#Judicial review of legislation of the Parliament and State Legislatures and subordinate legislations.
# Judicial review of administrative action of the Union and State and authorities under the state.


What can be obtained by maintaining the principle of Judicial Review - 


# Supremacy of the Constitution is maintained
# Federal Equilibrium that is distribution of power between Centre and States in maintained.
# Fundamental Rights of the Citizens are protected.

Judgements in various cases propounding the essence of Judicial Review


1. Chief Justice Kania in A.K. Gopalan v. State of Madras (1950)

“In India it is the Constitution that is supreme and that a statute law to be valid, must be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not”

2. Chief Justice Patanjali Shastri in State of Madras v. V.G. Row (1952)

“Our constitution contains express provisions for judicial review of legislation as to its conformity with the constitution. This is especially true as regards the Fundamental Rights, to which the court has been assigned the role of sentinel on the qui vive”

3. Justice Khanna in Kesavananda Bharati v. State of Kerala (1973)

“As long as some Fundamental Rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these Rights are not contravened”

4. Justice Bhagwati in Rajasthan v. Union of India (1977)

The Constitution is supreme lex, the permanent law of the land, and there is no branch of government above it. Every organ of government, be it the executive or the legislature of the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one however highly placed and no authority howsoever lofty, can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the constitution. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits”

5. Chief Justice Chandrachud in Minerva Mills v. Union of India (1980)

“It is the function of the Judges, may their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the Fundamental Rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled”

6. Chief Justice Ahmadi in L. Chandra Kumar v. Union of India (1997)

“The judges of the Supreme Court have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations”

7. Justice Ramaswami in S.S. Bola v. B.D. Sharma (1997)

“The founding fathers very wisely, therefore, incorporated in the Constitution itself the provisions of judicial review so as to maintain the balance of federalism, to protect the Fundamental Rights and Fundamental Freedoms guaranteed to the citizens and to afford a useful weapon for availability, availment and enjoyment of equality, liberty and Fundamental Freedoms and to help to create a healthy nationalism. The function of judicial review is a part of the constitutional interpretation itself. It adjusts the Constitution to meet new conditions and needs of the time”

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