KNC501/KNC601 Constitution of India, Law and Engineering

Chapter 6: Judiciary

Unit 1

Unit 2

Unit 3

Unit 4

Unit 5

Appendix

Judicial Review in India

Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India.

Judicial Review is the power of the Judiciary by which-

    1. The court reviews the laws and rules of the legislature and executive in cases that come before them; in litigation cases.
    2. The court determines the constitutional validity of the laws and rules of the government;    and
    3. The court rejects that law or any of its part which is found to be unconstitutional or against the Constitution.

Features of Judicial Review in India

1. Judicial Review Power is used by both the Supreme Court and High Courts

Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final power to determine the constitutional validity of any law is in the hands of the Supreme Court of India.

2. Judicial Review of both Central and State Laws

Judicial Review can be conducted in respect of all Central and State laws, the orders and ordinances of the executives, and constitutional amendments.

3. A Limitations

Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of the Constitution.

4. It covers laws and not political issues

Judicial Review applies only to the questions of law. It cannot be exercised in respect of political issues.

5. Judicial Review is not automatic

The Supreme Court does not use the power of judicial review of its own. It can use it only when any law or rule is specifically challenged before it or when during the course of hearing a case the validity of any law is challenged before it.

6. Decisions in Judicial Review Cases

The Supreme Court can decide:

    1. The law is constitutionally valid. In this case, the law continues to operate as before, or
    2. The law is constitutionally invalid. In this case, the law ceases to operate with effect from the date of the judgment.
    3. Only some parts or a part of the law is invalid. In this case, only invalid parts or part becomes non-operative and other parts continue to remain in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot operate without it, then the whole of the law gets rejected.

7. Judicial Review Decision gets implemented from the date of Judgement

When any law gets rejected as unconstitutional it ceases to operate from the date of the judgment. All activities performed on the basis of the law before the date of the judgment declaring it invalid, continue to remain valid.

8. Principle of Procedure established by Law

Judicial Review in India is governed by the principle: ‘Procedure Established by Law’. Under it the court conducts one test, i.e., whether the law has been made in accordance with the powers granted by the Constitution to the law-making body and follows the prescribed procedure or not. It gets rejected when it is held to be violative of procedure established by law.

9. Clarification of Provisions which a rejected law violates

While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the constitution that it violates. The court has to clearly establish the invalidity of the concerned law or any of its part.

Author – Dilip Kumar Rawat

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