Tuesday, 31 May 2022

Judicial Review

 Judicial Review

India has 3 organs known the legislature, executive, and judiciary. Judiciary as the organ is independent whereas the rest of the organ is somewhere dependent on each other. Judiciary's task is to adjudicate controversies over the application of laws in a specific situation. The judiciary is also responsible for keeping a check on the rest of the organs this is known as judicial review.

Judicial review can be defined as a procedure by which a court can review an administrative action by a public body and secure a declaration, order, or award. The actions which are against the constitution of the country are declared as void, this showcases that such a review depends upon the written constitution. 

Judicial review was first discussed in the United States, in the case of Marbury v. Madison. The court ruled out that the newly elected president of that time and his secretary of the state, john madison was wrong to prevent William Marbury from being justice of the district court as being appointed by the former president before leaving the office, so writ was filed under the mandamus against the secretary of the state. In this case, the judiciary act gave the supreme court jurisdiction, marshall court ruled the act of 1789 to be an unconstitutional extension of the judiciary.

Judicial review of India has been adopted from the US constitution, but Britain follows a different rule which is that no court can declare any law as invalid which is passed by Britain.

In the Indian constitution, various provisions talk about judicial review such as Article 13, 32, 131-136, 143,226, 145, etc. There might be provisions that give chance for judicial review but there is no specific article that gives power to the court to declare the law invalid. The court only decides whether a law is constitutional or not. If the provision is considered unconstitutional then it is seen that the provision can be separated from the unconstitutional part of the provision. If it can be then the unconstitutional part is removed but if not then the whole provision is considered void.

Various cases describe a judicial review, such as  Shankari Prasad v. Union of India, this case was related to the right to property was abridged by the act and against article 13 of the constitution. it was held that the Supreme court rejected the contention and talked about the terms of article 368 are perfectly general and empowered the parliament to amend the constitution without any exception. 

Case Minerva mill case is another example of judicial review,  42 nd amendment act which gave power to directive principle over articles 24, 19, 31 of our constitution. Part iii and part iv of the constitution are equally important and absolute primacy of one over the other is not permissible.

Case P.U.C.L v. O.I, the apex court of the country, gave a historical verdict stating that to disregard or disobey the decision given by the court. It was also seen that if the legislature does not influence the subject matter then the lawmaker of no power to ask for instrumentality.


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