1. While the contribution of the Supreme Court towards asserting the supremacy of constitutional rights is undeniable, the rightful limits of judicial intervention in the executive and legislative domains has been questioned in recent times.
2. The heightened debate surrounding the morality and legality of court’s intervention in public policies every now and then often challenges the constitutionally mandated jurisdictional equilibrium between the legislative, executive and judicial branches of the Indian state.
Judicial Review in its most widely accepted meaning is the power of the courts to consider the constitutionality of acts of organs of Government (the executive and legislature) and declare it unconstitutional if it violates.
Justice Syed Shah Mohamed Quadri has classified the judicial review into the following three categories:
1. Judicial review of constitutional amendments.
2. Judicial review of legislation of the Parliament and State Legislatures and subordinate legislations.
3. Judicial review of administrative action of the Union and State and authorities under the state.
IMPORTANCE OF JUDICIAL REVIEW
Judicial review is needed for the following reasons:
CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEW
1. Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void.
2. Article 32 guarantees the right to move the Supreme Court for the enforcement of the Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs for that purpose.
3. Article 226 empowers the High Courts to issue directions or orders or writs for the enforcement of the Fundamental Rights and for any other purpose.
SCOPE OF JUDICIAL REVIEW
The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court or in the High Courts on the following three grounds.
1. it infringes the Fundamental Rights (Part III),
2. it is outside the competence of the authority which has framed it, and
3. it is repugnant to the constitutional provisions.
The scope of judicial review before Indian courts has evolved in three dimensions-firstly, to ensure fairness in administrative action, secondly, to protect the constitutionally guaranteed fundamental rights of citizens, and thirdly, to rule on questions of legislative competence between the centre and the states.
Expanding Judicial Review
Challenges of Judicial overreach
Judicial Review or Judicial Overreach
Those supporters of wider judicial review often consider that it furthers the rule of law. They don’t see it as being anti-democratic by emphasising that it rises from the Constitution itself-the social contract that reflects the will of the people.
(ii) Those Against
While the Court’s jurisdiction as a soldier to protect and advance fundamental rights merits loud affirmation, the Court however should not to be seen as dismissive or disdainful of the processes of democratic governance.