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Tag: Judicial Review

Judicial Review Protecting The Spirit Of The Constitution

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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…

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Indian Constitution

Article 368 Amendment of Constitution

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Abstract To govern a country requires laws framed and followed. These laws which describe the power and limitations of Government and the principal functions of the organs of Government, set out the framework of Government, such laws are known as Constitutional laws, written in a Constitution. As laws framed today may be good for the present situation but may not be good the for future, they lose their efficacy according to the changes in situation and time. Laws require changes according to time. So, our Constitution provides the provisions to make amendments in our Constitution concerning time. What are those provisions, how do they come into force, and how does the Supreme Court interpret these laws? What is the theory of the Basic structure of the Constitution? Introduction Every law needs to be modified according to the requirements of time and situation. If laws are not changed according to time it will result in revolution and other illegal methods for changes in laws will be followed. Art. 368 of the Constitution of India provides the provisions of amendment of the Constitution of India. As we know there are two kinds of Constitutions in the world. One is a Written Constitution and the other is an Unwritten Constitution. Written constitutions are rigid and amendments are difficult. Whereas the Unwritten Constitution is not so rigid. The Constitution of India is a written Constitution and a federal one. Provisions of amendment in the federal Constitution are more complex in comparison to the Unitary Written Constitution. Our Indian Constitution provides unique provisions of the amendment. For amendment in the Union’s subject, the provisions are different from the provisions of amendment in the state’s subject. The Constitution of India provides three different ways for the Amendment of the Constitution. The Supreme Court has given the principle of basic structure concerning the amendment of the Constitution. Necessity for Amendment of Constitution The provisions for amendment of the Constitution are made to overcome the difficulties that may be encountered in the future in the working of the Constitution. If no provisions were provided for the amendment of the Constitution, the people would have recourse to extra-constitutional methods like a revolution to change the Constitution. As discussed above the federal written Constitution are rigid. The framers of the Indian Constitution were keen to avoid excessive rigidity and were anxious to have a document that could grow with the growth of the Nation and adapt itself to the changes in need and circumstances of a growing Nation. But the framers of the Indian Constitution were also aware that if the Constitution was so flexible it would be a playing of whims and caprices of the ruling party. they adopted a middle course. It is neither too rigid to admit necessary amendments nor too flexible for undesirable changes. For amendment the various Articles of the Constitution are divided into three categories: Amendment by Simple Amendment by Special By Special Majority and Ratification of Ways of Amendment of Constitution of India [Article – 368] As discussed above our Indian Constitution provides three different ways to amend the Constitution of India. These are: Amendment by Simple Amendment by Special By Special Majority and Ratification of 1  – Amendment by Simple Majority: The amendments contemplated in Articles 5, 169, and 239-A, can be made by a simple majority. 2  – Amendment by Special Majority: Article of the Constitution which can be amended by Special Majority as laid down in Article 368. All Constitutional amendments, other than those referred to above, come within this category and must be effected by a majority of not less than 2/3 of the members of that House present and voting. 3  – By Special Majority and Ratification of States: The States are given a special voice in the amendment of the State list subject to Schedule VII of the Constitution. Procedure for Amendment of Constitution: It must be passed by each House by a majority of the total membership of that house and by a majority of not less than 2/3 of the members of that House present and voting. a Bill which seeks to amend the provisions mentioned in Article 368 which requires in addition to the special majority mentioned above the ratification by 1/2 of the States. Article 368, however, does not constitute a complete code. The process of amending the Constitution is a legislative process governed by the rules of that process. Amendment of Fundamental Rights and The Basic Structure of the Constitution The question of whether fundamental rights can be amended under Art. 368 came for the Supreme Court in Shankari Prasad vs. the Union of India. The Supreme Court held that fundamental rights can be amended by the use of Art. 368 of the Constitution of India. In Sajjan Singh vs. State of Rajasthan, again this question arises as to whether fundamental rights can be amended by the procedure of Article. 368. The Supreme Court approved the majority judgment of Shankari Prasad’s case and held that the word “amendment of Constitution” means an amendment of all the provisions of the Constitution. Then, in Golak Nath vs. State of Punjab, the question arises, the Supreme Court by a majority of 6 to 5 prospectively overruled its earlier decision of Shankari Prasad’s case and Sajjan Singh’s case and held that Parliament had no power from the date of this decision to amend PART III of Constitution. But after that, the Parliament brought the 24th Amendment Act, of 1971 which states that Parliament has the power to amend Part III of the Constitution of India. Then came the famous case of Keshvananda Bharti vs. State Of Kerala also known as the Fundamental Rights case, in this case, the Supreme Court gave the famous theory of the Basic Structure of the Constitution. The Supreme Court by majority overruled the Golak Nath’s case which denied the Parliament to amend Part III of the Constitution. The majority held that Article. 368 even before the 24th Amendment Act contained the power…

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Indian Constitution