All questions of Judicial Review, Activism & PIL for BPSC (Bihar) Exam

Both the statements are correct.

The doctrine of judicial review originated and developed in the USA. It was propounded for the first time in the famous case of Marbury V. Madison (1803) by John Marshall, the then chief justice of the American Supreme Court. In India, on the other hand, the Constitution itself confers the power of judicial review on the judiciary (both the Supreme Court as well as High Courts).

The scope of Judicial review in India is narrower than what exists in USA. American constitution does not explicitly mention the concept of Judicial review in its provisions.

The power of judicial review ensures the constitutionality of laws.

1. The 'Procedure established by law' gives wide scope to the Supreme Court to grant protection to the rights of its citizens.
   This statement is incorrect. The concept of "procedure established by law" is narrower than the "due process of law" found in the U.S. Constitution. Under "procedure established by law," the Supreme Court of India is primarily concerned with whether a law has been enacted following the correct procedure laid down by the legislature. It does not provide the same broad scope for judicial review of the law's reasonableness or fairness as "due process of law" would.
2. It can declare laws violative of these rights void not only on substantive grounds of being unlawful but also on procedural grounds of being unreasonable.
   This statement is incorrect. The Indian judiciary, under the "procedure established by law," can declare laws void if they do not follow the proper procedure or violate fundamental rights. However, it cannot declare a law void purely on the grounds of it being unreasonable or unfair in substance unless it violates a specific fundamental right.

Explanation:

The power of judicial review is the power of the judiciary to review and declare the validity of laws and executive actions. In India, the power of judicial review is derived from the Constitution.

Article 13:
- Article 13 of the Indian Constitution deals with laws inconsistent with or in derogation of the fundamental rights.
- It states that any law made by the legislature that is inconsistent with or in derogation of the fundamental rights shall be void to the extent of the inconsistency.
- This means that if any law is found to be in violation of the fundamental rights guaranteed by the Constitution, it can be declared void by the judiciary.
- This provision gives the judiciary the power to review laws and declare them unconstitutional.

Article 32:
- Article 32 of the Indian Constitution gives the Supreme Court the power to issue writs.
- Writs are orders issued by the Supreme Court or High Courts to enforce fundamental rights or for any other purpose.
- The power to issue writs is an important tool for the judiciary to protect and enforce fundamental rights.
- This provision gives the Supreme Court the power to review executive or legislative actions and provide relief to individuals whose fundamental rights have been violated.

Article 226:
- Article 226 of the Indian Constitution gives the High Courts the power to issue writs.
- High Courts have the power to issue writs for the enforcement of fundamental rights or for any other purpose.
- Like the Supreme Court, the power to issue writs is an important tool for the High Courts to protect and enforce fundamental rights.
- This provision gives the High Courts the power to review executive or legislative actions and provide relief to individuals whose fundamental rights have been violated.

Conclusion:
- The power of judicial review in India is derived from the Constitution.
- Article 13, Article 32, and Article 226 are the constitutional provisions that give the judiciary the power of judicial review.
- Therefore, the correct answer is option 'D' - 1, 2, and 3.

The Power of Judicial Review

The power of judicial review refers to the authority of the judiciary to review and strike down any legislation or executive action that is found to be unconstitutional or in violation of the basic structure of the Constitution. This power is an essential feature of a democratic system and is aimed at ensuring that the government operates within the limits of the Constitution.

Statement 1: The Supreme Court has declared the power of judicial review as a basic feature of the Constitution or an element of the basic structure of the Constitution.

This statement is correct. In the landmark case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that the power of judicial review is an essential feature of the Constitution and is part of the basic structure of the Constitution. The Court also stated that this power cannot be taken away by the legislature through the process of constitutional amendment.

Statement 2: The power of judicial review can be curtailed or excluded by a constitutional amendment.

This statement is incorrect. As mentioned above, the Supreme Court has held that the power of judicial review is an essential feature of the Constitution and cannot be taken away by the legislature through the process of constitutional amendment. Any attempt to do so would be unconstitutional and would be struck down by the courts.

Conclusion:

In conclusion, statement 1 is correct, while statement 2 is incorrect. The power of judicial review is an essential feature of the Constitution and cannot be curtailed or excluded by a constitutional amendment.

The judiciary in India is immensely powerful. Barring a few cases, it has the right to review most acts/rules and regulations. Decisions taken by regulatory authorities like the Telecom Regulatory Authority of India (TRAI) are although subjected to Appellate Tribunals' scrutiny. They can also be challenged in the High courts and Supreme Court.

Both of them are correct.

The constitutional validity of a legislative enactment of an executive order can be challenged in the Supreme Court or in the High Courts on the following three grounds. 

Understanding the Supreme Court's Role in Law Constitutionality
The statements provided revolve around the nature of the Supreme Court’s examination of laws concerning their constitutionality. Let's analyze both statements:
Statement 1: Examination of Substantive Questions
- The Supreme Court does not solely focus on whether a law is within the powers of the concerned authority.
- It also considers various factors, including the law's adherence to fundamental rights and constitutional provisions.
- Therefore, this statement is incorrect as it oversimplifies the court's role.
Statement 2: Reasonableness and Policy Implications
- The Supreme Court often evaluates the reasonableness and suitability of laws.
- The court can strike down laws that are arbitrary, unreasonable, or infringe upon fundamental rights.
- Hence, this statement is also incorrect because it implies that the court does not assess the law's policy implications.
Conclusion: Why Both Statements Are Incorrect
- Both statements fail to capture the comprehensive nature of the Supreme Court's review process.
- The court actively engages in determining not just the legality of a law but also its reasonableness, rationality, and impact on citizens' rights.
- Thus, the correct answer is option 'D', as both statements are not correct.
Implications for UPSC Aspirants
- Understanding the judicial review process is crucial for UPSC aspirants.
- A nuanced grasp of the Supreme Court's functions can aid in answering related questions effectively.
In summary, the examination of laws by the Supreme Court goes beyond mere legality, encompassing a broader evaluation of their constitutional validity, reasonableness, and implications on fundamental rights.

The concept of Public Interest Litigation originated in The United States

This is to say that constitutional supremacy entails that the constitution trumps any other norm into the legal system in case of open conflict and/or conditions the interpretation of other norms that show some sort of inconsistency with constitutional imperatives.