Brain Booster Articles
JUDICIAL REVIEW: IN NEED OF REFORM
Author: Riya Luhadia, III year of BALLB(Hons.) from Seedling School of Law and Governance, Jaipur National University
Has Judicial Reform been added to the Constitution by any method? What is the jest of Judicial Reform according to Indian Courts and Constitution? Do both of them have similar viewpoints on the topic or have different views? We need to know about all as this is the main concept that falls within the path of seeking Justice.
Judicial Review is the power of the judiciary to analyze the constitutionality of legislative enactments and executive orders of both the Central and State government. After analyzing if they are found to be violative of the Constitution, then they can be declared as illegal, unconstitutional, and invalid. The power of Judicial Review in India has been with the Supreme Court and High Court through the Constitution of India itself.
MEANING OF JUDICIAL REVIEW
Judicial Review is the process whereby Courts exercise control over the findings of fact and interpretation of the law by governmental agencies.
Judicial Review is not found in the Constitution.
The concept was articulated by the Court in the case of Marbury v. Madison.
Judicial Review allows the Court to – Determine the meaning of Legislation and invalidate statutes that are deemed to be unconstitutional.
Through the concept of Judicial Review, there can be checks and balances in the separation of powers. The doctrine or concept also varies from country to country depending upon the laws and circumstances so the scope and jurisdiction also vary.
Examples of Judicial Review: The striking down of Section 66A of the IT Act because it was against the Fundamental Rights guaranteed by the Constitution.
EMERGENCE OF JUDICIAL REVIEW IN INDIA
The Constitution makers of India very wisely incorporated in the Constitution itself, the provision of Judicial Review to maintain the balance of federalism, to protect the Fundamental Rights guaranteed to the citizens so that all can have access to the useful armament for equality, liberty, and freedom. Judicial Review has Constitutional value and the power for the same has been given to the High Court and the Supreme Court to decide about the Constitutional validity of the provision of statutes
NEED AND IMPORTANCE
To maintain the standard of the supremacy of the Constitution.
To maintain the Federal equilibrium this means to balance between the centre and the state.
To guard against harming the Fundamental Rights of the citizens
Create healthy Nationalism.
PURPOSE OF THE STUDY
Judicial Review should be understood in the context of two distinct Legal System:
Civil Law and
With that by two distinct theories of Democracy also:
The doctrine of Legislative Supremacy and
Separation of Powers
GROWING DIMENSION OF JUDICIAL REVIEW
Basically to ensure fairness in the action of administration, to rule on the question of legislative competence between the centre and the state, and most important is to guard the Fundamental Rights of the citizens guaranteed by the Constitution. The power of the Supreme Court in India for the enforcement of the mentioned Fundamental Rights is given under A-32 of the Constitution and in case of violation of Fundamental Rights citizens can also directly approach the Supreme Court. Under A- 226 and 227 power of Judicial Review is given under the Constitution about High Courts and under A-32 and 136 to the Supreme Court.
SUPREMACY OF JUDICIAL REVIEW
Justice Khanna in Keshavanand Bharati vs. State of Kerala, held that because some Fundamentals Right exist and that is to be the part of the Constitution, the power of Judicial Review has also be exercised with a glimpse to see that the guarantees allowed by these rights are not repudiated.
Chief Justice Subba Rao in the case of Golaknath vs. State of Punjab supported the act of Judiciary and stated that Article 32, 141, and 142 are expressed in a particular way to authorize the Court to meet the end of justice by formulating the legal doctrines in a wider scope.
DOCTRINE OF CHECKS AND BALANCES
Each organ of the government is allowed to control other organs of government by which they can maintain checks and balances on each other's organs. For example, the Budget is made by the Execution and passed by the Parliament.
Similarly, Law is made by the Parliament but reviewed by Judiciary whether it is valid or invalid. There is no water-tight separation of powers but there is a form of government where there is the smooth functioning of all the organs by maintaining checks and balances. If we talk about the Indian Democratic system, there is the power given to the Judiciary to check the validity of the Legislation signed by the Parliament.
SEPARATION OF POWER
The doctrine of Separation of Power states that three organs which are Legislative, Executive, and Judiciary should be separated into the water-tight compartment so that there is no concentration of power. This is needed to limit the powers of the State. The only Judiciary has the power to check the validity of the Legislature as per the doctrine of separation. To avoid clashes between the organs there is the separation of powers among them but at times there is a conflict the organs overlap each other creating a situation of distrust but the Judiciary is that organ out of three where at times judgment can be reversed by the method of Judicial Review.
ICICI Ltd. vs. GRAPCO Industries Ltd., in this case, the Apex Court held that the High Court can interfere with interim orders of the Courts and Tribunals if they are made without Jurisdiction.
Sidheshwar Sahakari Sakhar Karkhana vs. Union of India, in this case, the Apex Court opined that normally the Judiciary does not interfere in policy matters which are within the purview of the Government. Unless it is contrary to the Law or against the provision of the Constitution. Mohan Das Hegde vs. State of Karnataka, in this case, the Supreme Court laid down that even a wrong decision of a business corporation cannot be challenged unless it is malafide.
LIMITATIONS WHERE REFORM IS NEEDED IN JUDICIAL REVIEW
COST OF LITIGATION: It is one of the most important drawbacks in the system of Judiciary during the procedure of Court for the Judicial Review. Because litigation consists of many fees including Court fees, advocate fees, etc which if not paid leads to the dismissal of the suit. And according to A-39A of the Constitution, there will be no discrimination while serving justice on grounds of economic disability but as we know that there are many illiterate people who are not even aware of this right and hence do not come to Court for justice because of the financial reasons.
JUSTICE DELAYED IS JUSTICE DENIED: Till now there are lacs of pending cases before the Courts in which some prisoners have already completed their punishment but have not yet given justice and if justice is delayed then what is the need of that Justice as they have suffered more than prescribed. The reason why people are losing trust and faith in Judiciary is the delayed justice and increase in the fees due to which citizens forget their right to access justice.
STRENGTH OF JUDGE: Due to the rise in the number of cases there must be more Judges appointed and after that also recent reports says that in 25High Courts of India there is a total number of Judges sanctioned is 1,079 and out of which 404 posts are still vacant. As the number of Judges in every High Court is decided by the President of India and in that Parliament do not play any role regarding the same.
COMPROMISE IN THE QUALITY OF JUSTICE: There are many Courts which do not have proper infrastructure and facilities for the appropriate library, collection of books, inadequate number of Court staff, no proper management of workspace which automatically leads Courts in difficulty then how come one be given Justice if there is a lack in the process of working of Courts due to infrastructure problem. There is clear compromise visible in these situations.
CORRUPTION IN JUDICIARY: In simple language, it is said that where there is power in hand there is corruption as most of the people in power try to dominate others and use their position and power for their benefits which directly leads to corruption. Corruption in Judiciary has been divided at every level from subordinate to higher and with that there is an easy or simple procedure to remove the corrupt judge from his position as they somehow make their defence strong by using the power. At many times there create clashes between executive and Legislature the Judiciary comes into the frame and resolves those clashes which mean the Judiciary plays a prominent role but at times of corruption it loses the trust of the citizens.
Judicial Review is a kind of court proceeding through which a judge reviews the lawfulness of a decision or action made by a public body. It is a power of a Court to decide whether a law or decision by the Government is constitutional. There is a compulsory requirement in the reforms of Judicial Review so that the citizen's trust and faith in the Judiciary are maintained because it is a fact that whenever something wrong happens with someone first thing which comes in the mind and the words come out of the mouth is "I will see you in the Court" through which it can be said that till now the trust and belief have been established by the citizens on the system of Courts and Judiciary. So, if the same level of trust and belief is maintained throughout by the citizens in the courts and system of Judiciary then it is necessary to make developments in the system of Judiciary by the Government through reforms. Government should improve and make better the quality of Justice to win the trust of the Citizens as this is only the appropriate method which people thought of to seek justice otherwise there will be injustice and injustice only.
 Patanjali Sastri, J, in State of Madras v. V.G. Rao (1952) SCR 597
 (1973) 4 SCC 225, AIR 1973 SC 1461
 1967 AIR 1643
 1999(4) SCC 710 [Para 7]
 2005 (2) SCJ 496,
 (2005) 2 SCR 1128