Judicial Review and the Indian Courts

11 Pages Posted: 24 Jan 2012

See all articles by Chinmoy Roy

Chinmoy Roy

National University of Study and Research in Law (NUSRL), Ranchi

Date Written: January 23, 2012

Abstract

Literally the notion of judicial review means the revision of the decree or sentence of an inferior court by a superior court. Judicial review has a more technical significance in pubic law, particularly in countries having a written constitution which are founded on the concept of limited government. Judicial review in this case means that Courts of law have the power of testing the validity of legislative as well as other governmental action with reference to the provisions of the constitution. The doctrine of judicial review has been originated and developed by the American Supreme Court, although there is no express provision in the American Constitution for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had the power of judicial review. Chief Justice George Marshall said,“ Certainly all those who have framed the written Constitution contemplate them as forming the fundamental and paramount law of the nations, and consequently, the theory of every such Government must be that an act of the legislature, repugnant to the Constitution is void”. There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts declare void the acts of the legislature and the executive, if they are found in violation of the provisions of the Constitution.

The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary enactment invalid. On the contrary every court is constrained to enforce every provision" of the law of parliament. Under the constitution of India parliament is not Supreme. Its powers are limited in the two ways. First, there is the division of powers between the union and the states. Parliament is competent to pass laws only with respect to those subjects which are guaranteed to the citizens against every form of legislative encroachment. Being the guardian of Fundamental Rights and the arbiter of constitutional conflicts between the union and the states with respect to the division of powers between them, the Supreme Court stands in a unique position where from it is competent to exercise the power of reviewing legislative enactments both of parliament and the state legislatures. This is what makes the court a powerful instrument of judicial review under the constitution. As Dr. M.P. Jain has rightly observed: "The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution."

Keywords: Judicial Review, Constitution, Common Law, court

Suggested Citation

Roy, Chinmoy, Judicial Review and the Indian Courts (January 23, 2012). Available at SSRN: https://ssrn.com/abstract=1990601 or http://dx.doi.org/10.2139/ssrn.1990601

Chinmoy Roy (Contact Author)

National University of Study and Research in Law (NUSRL), Ranchi ( email )

Ranchi, Jharkhand 835215
India
+91-8092480503 (Phone)

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