MANISHEK KR. SINGH, LEGAL NEWS REPOTER
One of the most important features of the Judiciary is the power of Judicial review. Judiciary review is the power of the supreme court and the High Court to examine the constitutionality of the Acts of the Parliament and the state legislature and executive order of both centre and state government.
According to Redform “ judicial Review is the power of the court to enquire whether a law, executive order or other official action conflicts with written constitution and if the court concludes that it does, declare it unconstitutional and void”. The Judiciary by using this power keeps check on the legislative and the executive organs of the Government within the purview of the Constitution. It is one of the most essential element for the successful and smooth running of federal form of government.
The Doctrine of Judicial Review is one of the invaluable contributions of the U.S.A to the political theory. The concept of the judicial review was developed by chief Justice Marshall of the American Supreme Court in the famous case of Marbury vs. Madinson in 1803
In the case Chief Justice Marshall laid down that the Judiciary has the power to examine the laws made by Legislature and at the time if it is found that the laws made is contrary to constitutional Provisions then it is declared to be void.
- Judicial Review is important because law passed by legislature need to be checked to make sure they are Constitutional.
- Judicial review is essential to establish a federal system of government so that it can check and balance the organs of the government.
- It is necessary for the smooth running of the federal system of government.
- It is necessary to put check on the arbitrary decision of the organs of the government.
- It is necessary for the independence of the Judiciary.
- It is important so that it protects individual rights from arbitrary encroachment of legislature functions.
- JUDICIAL REVIEW IN INDIA:-
The very feature of judicial review is also implemented in India but has not been mentioned in the constitution directly. Accordingly the constitutional validity of legislature enactment or an executive order may be challenged in the Supreme Court on the following grounds.
- Violation of Fundamental Rights.
- Outside the Competence of the authority which has framed it.
- It is repugnant to the Constitutional Provision.
The foundation of the Indian Supreme Court Review Power was firmly laid down in the case of A.K Gopalan vs. State of Madras (AIR 1950 SC) in the case guidelines regarding the judicial review have been laid down.
Various provisions in India Constitution explicitly provides for the power of judicial review to the court such as Article 13,32,131,136,141,143,226,227,245,246 and 372.
In the case of Shri Sitaram Sugar co. ltd vs. Union of India
In the case the Court, in exercise of Judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonable supported by evidence. The principles of judicial review would apply to the exercise of contractual powers by government’s bodies in order to prevent arbitrariness or favoritism.
- CURATIVE PETITION:-
Curative petition is an another form judicial review which is defined in the case of Rupa Ashok Hurra vs. Ashok Hurra (AIR 2002 SC) in which a five judge constitutional bench of the Supreme Court has unanimously held that in order to rectify gross miscarriage of justice in its final judgment which cannot be challenged again the court will “allow” curative petition by the victim of miscarriage of justice to seek a second review of the final order of the court. To entertain a curative petition there are following requirements:
- Court reaffirms that litigants are barred on challenging final decisions.
- But in cases of miscarriage of justice it would be its legal and moral obligation to rectify the error.
- The petitioner will have to establish that there was a genuine violation of Principles of natural justice and fear of the bias of the judge and judgment that adversely affected him.
- The curative petition must accompany certification by a senior lawyer relating to the fulfillment of the requirements.
- The petition is to be sent to the three judges of the bench who passed the judgment affecting the petition.
- They could also impose “exemplary costs” of the petitioner in his pleas lacked merit.
Judicial reform is among one of the topics which has widest scope in the judiciary and also the role to play in it. It is near about impossible to define the role and importance of judicial review in the judicial system as it is present everywhere in the system.