Laxmikanth Summary: Judicial Review UPSC Notes | EduRev

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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 
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. 

  • The Supreme Court used the power of judicial review in various cases, asfor example, the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills case (1980), and so on. 
  • In 2015, the Supreme Court declared both the 99th Constitutional Amendment, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 as unconstitutional and null and void.

IMPORTANCE OF JUDICIAL REVIEW
Judicial review is needed for the following reasons: 

  • To uphold the principle of the supremacy of the Constitution. 
  • To maintain federal equilibrium (balance between the Centre and the states). 
  • To protect the Fundamental Rights of the citizens.

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 

  • It was through the expansive interpretation of Article 21 of the Constitution in Maneka Gandhi v Union of India (1978), the Court held that the "procedure established by law” envisaged in the said article had to be just, reasonable and fair to pass the test of constitutionality. 
  • In M Nagaraj v Union of lndia, the Court declared that fundamental right in Articles 14,19 and 21 "stands atop in constitutional value” in a fulsome recognition that "human dignity, equality and freedom were conjoined, reciprocal and similar values”.

Challenges of Judicial overreach 

  • The court however in recent times has moved beyond from ensuring basic rights for citizens and has extended its review jurisdiction to what are clearly functions assigned originally and exclusively to the executive branch under the constitutional scheme. 
  • Petitions to the Court have invoked judicial review in "public interest" to question major policy decisions of the government concerning policy choices, for example, in what are now known as the 2G spectrum and coal mines allocation cases.

Judicial Review or Judicial Overreach 
(i) Supporters
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

  • Those who favour judicial restraint, argue that in a democracy, people exercise their sovereignty through elected representatives and not through the unelected judges who must defer to the wisdom of parliamentary majorities. 
  • It is argued that the failings of democracy and inadequacies of the democratic process cannot be invoked to negate the core of the democratic principle, namely that ultimate sovereignty vests in the people.

Conclusions 
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.

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