Judicial Review Protecting The Spirit Of The Constitution

 Article 13 aids the court and citizens to keep the power of the legislature under the survivals Article 13 describes the means for judicial review it enjoys a duty on the state to respect and implement the fundamental right  and at the same time Article 13 confers the power on the code to declare a law or act as a void if it infringes the fundamental right  that judiciary  place an important role as a protector of the guardian of the fundamental right  the primary responsibility of the implementation of the rule of law lies within the judiciary  that purpose

of judicial review is to ensure that democracy is inclusive and there is accountability for those who are in power.

The Constitution of India has guaranteed the power to the Supreme Court and High Court of judicial review to protect the spirit of the Constitution which means fundamental rights the legislative bodies have the law-making power but judicial bodies have the power to review laws whether they violate the basic principle of the fundamental right to protect the fundamental right  Supreme Court and High Court design with the power of judicial review.

Introduction

Law plays a very crucial role in today’s society we the people of India have given up on our rights and entered into a contract with the Government of India in which the government gave us protection against the wrongdoing of the society this is also known as social contract theory which was propounded by Hobbes.

To protect the law from getting miss used by arbitrary power and to keep the check and

balance on the power of each government the doctrine of judicial review was adopted by the US Constitution  doctrine of judicial review first time was used in the Marbury v/s Madison case in the USA in 1803

Through using the instrument of judicial review the court can declare any law as void which goes against the Constitution and its fundamental principle it took a lot of time and patience to fix and feature judicial review in our Constitution  judiciary has played an important role concerning judicial review, judicial review can be made in the Constitution amendment legislature action laws made by the legislature.

Court has declared judicial review as the basic structure of the Constitution which means it can never be amended or can never be removed.

We have three organs of government in our society legislature executive and judiciary

legislature makes the law executive implements and executes the law and the judiciary keeps checks on both of the organs but these powers have not been implied in the strict sense.

The power of judicial review is vested in articles 1332 131 to 136 143 to 26 145 246 251 254 and 372.

History Of The Judicial Review

The doctrine of judicial review was laid down in Marbury v. Madison

Judicial review was the act that came from the case of Marbury v. Madison in 1803 it was

the landmark case of the US Supreme Court which established the principle of judicial review in the U.S. The origin of this case was in 1801 when President John Adams was supposed to leave

the presidential house of the US as he lost the election to the upcoming President Thomas Jefferson in 1800 just before 2 days of expiring of his tenure as president in March 1801 he appointed several judges who supported his federalist party.

But current Secretary of State John Madison was unable to deliver all the commissions of the New judges before Adams’s departure later Jefferson the new President believed that undelivered commissions were void and instructed Madison not to deliver them one of the undelivered commissions was of

Williams Marbury was a Maryland businessman and a strong supporter of Adam when Madison continuously refused to deliver his commission, the Marbury Supreme Court filed a writ petition under the mandamus asking the court to force Madison to deliver his commission.

The later court refused to entertain the plea and opposed the order of legislature this is when the use Supreme Court struck down the doctrine of judicial review.

What can be obtained by maintaining the principles of judicial review?

• The supremacy of the Constitution is maintained

The Constitution is supreme and the law of the land it is important to maintain its dignity and to check that any law any act does not hear or violet the authenticity of the Constitution judicial review keeps check and balance on the power of the legislature and does not allow them to make any law which can violate the spirit of the Constitution.

• Federal Equilibrium

State and union have been allotted different sectors to make law in their list but whenever

there is a conflict arising between the union and State judicial review handles the dispute to solve the problem arising between both union and State this way judicial review maintains the federal equilibrium between the government.

• protection of Fundamental rights.

The major role of judicial review was to protect the fundamental rights that were provided to the citizens of India due to the protection of judicial review no law can touch

• Independence of judiciary

Judiciary  is the one of the main organs of society if the judiciary  does not work

independently, it will not be able to deliver fair and just justice to the victims so the judicial review does not allow the legislature or the executive to interfere in the work of the judiciary.

• Intercepting the misuse of

With so much power legislature and executive can perform certain activities which are not valid in the Constitution so to protect the misuse of the power of the executive and legislature judicial review plays an important role.

Features of Judicial Review

• Judicial review power can be exercised by both the Supreme Court and High Courts

Under Article 226 of the Constitution, a person can approach the High Court if his fundamental right is violated or any legal right also under Article 32 of the Constitution a person can move to the Supreme Court and can file five writs if his fundamental right is violated by any person.

• Judicial review of both state and Central law

all the laws ordered by laws ordinance Constitutional amendment and other notification which are being given by the state or Centre of them will go with the check of judicial review judicial review has the power to review both center and State law which are included in Article 13 Clause 3 of The Constitution of India.

• Judicial review cannot be directly applied

if the judiciary  finds that a question of law or rule of law is being challenged before the court then only the code can apply to the doctor, not judicial review it cannot directly or

automatically apply for judicial review without getting asked for the same.

Grounds of judicial review

• Constitution quality

Judicial review is done by the judiciary  in all the Constitutional amendments that are made by authorities if those amendments are been found to violate fundamental rights, they are declared void enhance considered unconstitutional al courts in many cases have cleared that

judicial review of the Constitution all amendments are important and no amendment can violet the spirit of the Constitution.

In the case of AK Gopalan vs State of Madras 1950

Kania Justice stated that whatever law will be made by parliament it will be according to the provision of the Constitution and it will be decided by the court whether the specific law violates the Constitution or not in this case, the Constitution was held supreme.

In another case of Keshav Nanda Bharti versus the state of Kerala in 1973.

Court held that parliament can change the fundamental right if found necessary but in this case, the court was given the power of judicial review where it was stated that if parliament changes the law in the wrong way or for the wrong use then that lock can be declared void.

In another landmark case of IR Coelho versus the state of Tamil Nādu, 2007 it was held that Constitution realism is about checking and balancing the power of government since the

The constitution is supreme and the government becomes a limited government Constitutionalism is about the control of the government’s power to ensure that government does not destroy the democratic framework of the governance.

Lack of jurisdiction

In the case of R vs Minister of Transport 1934, it was held that if any administrative authority has no right to perform any particular activity even though it has performed such that act will be void and non-existed in the eyes of the court.

In the case of Rafiq Khan versus the state of UP 1954, the code said that the sub-divisional magistrate has no authority or power to modify the order of the convince convention and the sentence which is passed by Panchayat Adalat.

Conclusion

In India, we have adopted the concept of separation of power but we cannot provide the power to the full extent as it will lead to the poor performance of work by all the organizations to keep a balance between all the organs of the government and the power of judicial review is been perform in full extend.

The power of judicial review is the most powerful system in India it is the guardian of the Constitution which protects the spirit of the Constitution and also safeguards the fundamental rights that are instituted in The Constitution of India it also separates the power between the union and the state assign the function of every organ in the nation in the case of Minerva Mills versus union of India the concept of judicial review became part of the basic structure so yes judicial review safeguards the right of the individual and the society and protect us from the miscarriage of justice.

Written By :-

Jyoti Singh