Courts and Judicial Review Chapter Notes - Humanities/Arts PDF Download

Introduction

1.  Judicial Review - General

• Judicial review is a principle or a legal doctrine or a practice whereby a court can examine or review an executive or a legislative act, such as law or some other governmental or administrative decision, and determine if the act is incompatible with the constitution.

2. Separation of Powers - General

• The doctrine of separation of powers ensures that each branch has distinct powers and responsibilities, based on organizational scheme of the Constitution. 
• Furthermore, Constitution provides checks and balances so that no one branch exercises its supremacy over the others or misuse the powers provided to them. 
• Advantages of Separataion of Powers include: 
  1) it allows for liberty as it avoids concentration of powers in one branch; 
  2) it promotes efficiency; and 
  3) it facilitates and enriches democratic discussion through the powers of checks and balances of each branch.
• The doctrine of division of powers between the federal or centre and states or provinces. Federal government has law making powers different than that of states or provinces. The doctrine of division of powers stipulates and delimits subject matters or items on which the federal government and provincial/state governments have powers to make laws.

India, which is based on the parliamentary form of government, follows the system of separation of powers among the three branches of the government as prescribed in the Indian Constitution. 

• The executive branch consists of the President, the Prime Minister and the bureaucracy. 
• The legislative branch includes both houses of Parliament: the Lok Sabha and the Rajya Sabha. 
• In the judiciary, the Supreme Court is the final authority for interpreting the constitution; judiciary is quiet independent of the other two branches.

Scope of Judicial Review in India

The scope of judicial review in courts in India has developed with respect to three issues: 

• protection of fundamental rights as guaranteed in the Constitution; 
• matters concerning the legislative competence between the centre and states; and 
• fairness in executive acts.

The ways in which judicial review is practiced by the Supreme Court of India are:  

1. Individual and Group Rights-

• Article 13(2) of the Constitution of India provides that: "The State shall not make any law which takes away or abridges the rights conferred by this Part (Part III - Fundamental Rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void." 
• Furthermore, Article 32 offers the Supreme Court the power to enforce fundamental rights, and provides one the right to move the Supreme Court for the enforcement of those rights. 
• Like Article 32, Article 226 is a parallel provision for High Courts in states and allows one to institute similar writs in the High Courts for the enforcement of fundamental rights.

2. Centre-State Relations- 

• Article 246 of the Constitution provides that the Parliament has exclusive powers to make laws with respect to matters itemized in the 'Union List' (List 1 of the Seventh Schedule of the Constitution). 
• It provides further that both the Parliament and the Legislature of any State have powers to make laws with respect to matters enumerated in the 'Concurrent List' (List III of the Seventh Schedule of the Constitution). 
• With respect to the States, it provides that the Legislature of any State has exclusive power to make laws with respect to matters listed in the 'State List' (List II of the Seventh Schedule).

3. Fairness in Executive Actions- 

• In matters of executive or administrative actions, judicial review practice of courts have often employed doctrines like 'principles of natural justice', 'reasonableness', 'proportionality', and 'legitimate expectation'. 
• There is a Latin phrase audialterampartem, which literally means 'listen to the other side'. This phrase is an established principle in the Indian law practice and was applied by the Supreme Court in several cases. 
• The courts have often used the principle of reasonableness in most cases that involve state action. The realm of contract law offers an example. 
• Whenever states are parties to any contract, the courts attempt to distinguish such contracts with that of contracts entered between private individuals or parties. 
• Another principle frequently utilized by courts in administrative law, especially in service matters, is the principle of proportionality. Essentially, judicial review offers safeguards to the aggrieved against any sentence or punishment that is disproportionate and burdensome.

4. Basic Structure- 

• The Supreme Court has extended the practice of judicial review to the matters concerning the constitutional amendments by developing the doctrine of the basic structure of the Constitution. 
• Article 368 confers power to the Parliament to amend the Constitution: "by way of addition, variation or repeal any provision of this Constitution" This Article in its wordings does not provide any limitation on the power of the Parliament to amend the Constitution. 
• Supreme Court has also held judicial review to be the basic structure or feature of the Constitution; as a result, it can nullify any constitutional amendment that abolishes or disregards judicial review in issues concerning to fundamental rights of citizens.