By- Nihala Jasmin K K.
Indian Constitution stands first among all other laws when it comes ti India i.e., if there is anything said in the Indian Constitution then all other laws should follow it. Judicial review is one of the most important power of both the Supreme Court and High Courts. Technically, judicial review is the power of the judiciary to examine and invalidate actions undertaken by the legislative and executive branches of both the federal and State governments. In law there are no synonym i.e., for eg; female, women, lady etc have its own meaning and one word cannot be used in general for a category.
The final authority is constitution of India which is the fundamental law of the land. It is so called because every other law action, policy, amendments laid down by the Parliament must be in the spirit of the Constitution of India. As we all know our constitution is divided into parts and every part has several articles. In the Part III of the Constitution mentioned what are called as fundamental rights which starts from Article 12 to Article 35.In general we can say that in a nation there are two components
In comparison to State individual is very weak .The State can any day destroy the individual if they wants so .Then in order to ensure that the individual is not destroyed by the State by arbitrary use of power, each and every citizen is protected by the most powerful element in the nation, constitution of India. This phenomenon is called lexes .So law is the King of Kings. These rights ensure that every individual have human existence.
The judiciary plays a very important role as a shield of the constitutional values. They make sure to heal the wound that is being done by the legislature and the executive and also they try to provide every citizen what has been guaranteed by the Constitution and thereby ensure the public trust and faith. Judicial review is defined as the doctrine under which executive and legislative actions are scrutinized by the judiciary. Even though we have in India the principle of separation of powers among three arms of the State, namely, the executive, the legislative and the judiciary, the judiciary is vested with the power of review over actions of the other two arms.
Article 13(1) of the Constitution declares that all laws in force in the territory of India immediately before the commencement of the Constitution shall be void to the extent to which they are inconsistent with the provisions of part III of the Constitution.
Article 13(2) provides that the state shall not make any law which takes away or abridges the fundamental right conferred by part lll of the Constitution. Any law made in contravention of fundamental rights shall be void to the extent of contravention.
Article 13(3) defines the term law and the term includes any ordinance, order ,by-law, rule, regulation, notification, custom or usage having force of law. Thus not only the legislative enactment ,but any other subordinate legislation or any other law having the force of law can be declared void by the courts if they are violative of fundamental rights.
Article 13 is giving us negative definition of law, in other words Article 13 is telling what is not law and at the same time it is describing the power of Judicial review. Any order, legislation, action, amendment by the State which violates , abridges, or contravenes anything in Part lllof the Constitution which deals with our fundamental rights is not law . Whenever the judiciary feels fundamental rights of individual are in danger the court can exercise the power of judicial review which protects the individuals like an Amazon layer protects us from UV rays.
Article 13providesfor the 'judicial review' of all the legislations in India whether they are passed before or after the coming into force of the the power of judicial review the High Courts and the Supreme Court can pronounce or declare a law as unconstitutional if it is inconsistent withany of the fundamental rights. All laws which are passed by the legislature are liable to be struck down by these courts if they are violative of fundamental rights.
ORIGIN: POWER OF JUDICIAL REVIEW TO THE COURTS
We get this beautiful idea from USA. Powerof judicial review is exercised by the Supreme court as well as the High courts. This idea is first mentioned in the famous case Marbury v. Madison case (1803) by the chief justice of Supreme court of USA, Marshall .He actually explains it rather than spelling the word. He said “The judiciary has the power to examine the laws made by the legislature.
It was also declared that if any such law is found to be in violation of the constitution then such a law would be declared by the court by the court as ultra-vires of the constitution, which means power of judicial review by the courts. So running our eyes through this case we came to know the origin of judicial review.We can conclude that judicial review is the power of a court to enquire whether a law or executive or other official action conflicts with written constitution and if the court concludes that it does,then they can declare as unconstitutional and void.
Is the judicial review an absolute power?
Does the courts have in practical unlimited powers with judicial review. This is explained in two landmark cases.
In Kesavananda Bharathi v. State of Kerala (AIR 1973 SC 1461), popularly known as 'Fundamental Rights ' case the Supreme Court held that judicial review is an integral part of the Constitution and the High Courts and Supreme have been vested with the power to decide the constitutional validity of the provisions of statutes. If the provisions of statutes are found to be breach any of the Fundamental Rights, the Supreme Court and the High Courts can struck down such provisions by virtue of Article 13 of the Constitution. It has been held that judicial review is the ‘basic feature' of the Constitution and, therefore ,it cannot be damaged or destroyed by amending the Constitution under Article 368 of the Constitution.
In I.R Coelho v. State of Tamil Nadu (2007)the supreme court utilised what is as called as a retrospective effect. In the year 2007 came the judgement of Kesavananda Bharathicase which says judicial review is also a part of basic structure and so that it cannot be taken by any law ,order, amendment including the in famous 9thSchedule. The Supreme court in this judgement said under no conditions regardless of whether it is written in 9th schedule or in whichever schedule there will be always judicial review starting from the date 24.04.1973.
In the words of great Chief justice Y.V Chandrachud while dealing with a case in 1980 said that everything is under judicial review. Therefore it is an absolute power.
Judicial review is called upon to ensure and bodyguard fundamental rights which are guaranteed in Part III of the Constitution. The power of the Supreme Court of India to enforce these rights is derived from Article 32 of the Constitution. This provides citizens the right to directly approach the SC to seek remedies against the violation of fundamental rights. Judicial review is also called the interpretational and observer roles of the Indian judiciary.
For having a proper analysis of Article 13,laws can broadly classified into two. They are:
(i) Pre-constitutional laws and
(ii) Post-constitutional laws.
According to Article 13 (1) all pre- constitutional laws i.e., laws which were in force on the date of commencement of the Constitution shall be void to the extent to which they are inconsistent with fundamental rights from the date of commencement of the Constitution. Thus it is very that Article 13(1) is not retrospective in operation. It is prospective in operation. All pre- constitutional laws inconsistent with fundamental rights will become void only after the commencement of the Constitution .They are not void ab initio. A declaration of invalidity by the court is also necessary in order to make the laws invalid.
Post – constitutional law
Post- constitutional law is a law enacted by legislature after the commencement of the constitution.Article13(2) clearly prohibits the state from making any law which takes away or abridges any of the fundamental rights. If against this clear direction the state enacts a law then it will be ultra vires and void from the very inception. However a court declaration of unconstitutionality of such a law is necessary.
Concluding this article we can say that thegrowth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. The Judges have a duty to perform, which is even more arduous to keep the judicial ship afloat on even base. Accountability is an essential part of rule of law .The judgments must be logical, precise, clear andshould be delivered without looking the status and face of the person.
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