Introduction:
In 1950, India adopted the constitution. The constitution mentioned how the people of the country will live and how the state will function. The constitution adopted the parliamentary form of democracy. It did so because the state wanted no one to left out of the pyramid of the power that controls the state, and the specialty of democracy is that the power flows from the base of the pyramid to the uppermost layer. This pyramid of power has no uppermost peak because no one person or organization controls the power, unlike aristocracy. To make sure that no one person or organization controls everything, people of the country were provided with some power so that if the controlling party opts tyranny, then the people have the power to stop it. The existence of such powers in the hands of countryman is an essential feature for a country’s governmental form to be called democracy.
When we said power to stop tyranny we didn’t mean being a violent rebel like ancient times, we meant the implicit power. There are many such examples one of those is judicial review. Right and wrong may be a subjective concept, but legitimate and illegitimate are not. People can use the power of judicial review when they think that a decision or rule of law violated the constitution.
What is the meaning and definition of judicial review?
Judicial review is a power provided by the constitution to the judiciary, using which it can interpret the constitution and can declare any order of the legislative or executive void if it is found violating the constitution. In the uppermost layer of the democracy lies legislature, executive, and the judiciary. Judiciary review is the power of the judiciary through which it maintains checks and balances the power of the other two i.e. Legislature and executive. Checks and balance is an important feature in the separation of power so that no one branch of power dominates the other two.
Judicial review isn’t a raw tyrannical power but has some features and criticisms.
What are the features of the judicial review in India?
• Judicial review is used by both the Supreme Court and High Court.
Article 226 (Power of High Courts to issue certain writs) and Article 227 (Power of superintendence over all courts by the High Court) of the constitution are concerned with the power of High court for judicial review, whereas in regard to the Supreme Court Article 32 (Right to Constitutional Remedy) and Article 136 (Special leave to appeal by the Supreme Court) are concerned.
• Judicial review can be conducted in respect of all central laws as well as state laws.
• Judicial Review applies to the question of law, and not to political issues.
• Judicial review is not automatic.
Meaning that the Supreme Court and the high courts cannot automatically use the power on their own. It can only be accessed and used when any law or rule is specifically challenged before it or when during the hearing of a case the validity of any law is challenged before it.
• The decision concluded in the judicial review is implemented from the date of judgment.
• In India, judicial review is governed by the principle and procedure established by the law.
The judicial review decision gets rejected when it is held that it violated the procedure established by the law.
• When Supreme Court uses judicial review and calls an established law or any order by legislative or executive to be invalid it needs to cite the constitution which it violates.
• Judicial review of the laws incorporated in the 9th schedule of the constitution cannot be conducted.
What are the criticisms of judicial review in India?
• Judicial review empowers the court to decide the fate of the laws passed by the legislative, which represents the majority of the country. Therefore, some call it undemocratic.
• The constitution does not clearly describe the system of judicial review and depends upon several articles of the constitution.
• The system of judicial review is a source of delay and inefficiency.
The review is so slow that years pass by to get to the conclusion, and when justice is delayed justice is denied.
• It can make the legislative irresponsible as it can depend upon the Supreme Court for determining the constitutional validity of law it passes.
• Reversal of its own decision by the Supreme Court
On many occasions it has been seen reversing its own decision, reflecting the subjectivity in the opinions of judges and judgments.
The existence of judicial review can be misused by the people owning the power or by the court upon which the baton is to pass the judgment, but its non-existence can create even more chaos. Because the non-existence of this power means democracy is in danger of being extinct in the country. So the decision comes to the choice which will be less harmful i.e. its existence.
Why should judicial review exist?
• It is essential for maintaining the supremacy of the constitution.
• It is a system of checks and power, using which the judiciary maintains its eye over the power of the legislative and executive.
• It is a device that protects the rights of the people.
Why judicial review is called the power to protect the spirit of the constitution?
By just mentioning democracy in the constitution doesn’t make the government and it’s functioning democratic unless the people are provided with the tools through which they can point out the wrong of the government, and can appeal to the authorities to review the decision of the government. If this power is not provided then there will be no will of people in the laws formed destroying the very essence of democracy. It would anything but democracy.
This is the tool through which the legislature and the executive are not provided with power more than what the constitution gives them. Democracy means equity of power in the three branches because excess in the power of anyone branch means being more powerful than the other two creating dominance over them. One branch holding more power than the other two are the signs of tyranny and the functioning turning to aristocracy where the will of the people is crushed and destroyed.
Conclusion
It can be concluded that accountability is an important part of the separation of power. Judicial review not only maintains the separation of power but let people voice out the constitutional invalidity of any law or order. Everything has critics and criticisms, and so does judicial review, but its non-existence causes much more danger to its existence. Its existence is a sign of sustenance of democracy, by maintaining the flow of power from the base of the pyramid to the uppermost level.
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