Judicial review is kind of like the heartbeat of the Constitution in a constitutional democracy that is alive and well. It supports rights enforcement, liberty preservation, and the rule of law.
Judicial review refers to the authority of higher courts to assess the legitimacy of governmental or state actions. The Court exercises its inherent authority to ascertain the legality of an activity and provide suitable remedies. Professor Wade highlights that judicial review is a crucial instrument for ensuring that public bodies adhere to proper limits and preserve the principles of the rule of law.
What is judicial review
Judicial review is the process by which the courts of a country assess whether the legislative, executive, and administrative branches of government are acting in accordance with the constitution. Actions that are seen to be inconsistent are deemed as unconstitutional and, as a result, are considered null and void. The establishment of judicial review in this context relies on the presence of a written constitution.
Judicial review is based on the idea that the courts have the power to decide whether or not the actions of the legislature and the administration are legitimate. Decisions rendered by both federal and state courts must be consistent with the principles outlined in the Federal Constitution. The executive and legislative branches of government must also fulfill their duties with a strong focus on constitutional principles.
Historical background of judicial review
The concept of judicial review is primarily based on Common Law principles. Chief Justice Coke’s decision in Dr. Bonham’s case (1610) contains the first indications of judicial review; it states that Acts of Parliament would be governed by common law and that the Court might declare an enactment unlawful if it is contrary to common reason and right. However, that was prior to the Glorious Bloodless Revolution, which solidified the authority of Parliament in England. Interestingly, Coke himself did not adhere to this perspective later on and did not reference Bonham’s case in his Institutes.
However, it had a significant impact on both sides of the Atlantic, particularly in the United States where it resonated due to its written Constitution.
In 1793, Judge Spencer Roane of the Virginia Court presided over the case of Kamper v. Hawkins. According to a case in Virginia, it was stated that if the legislature has the power to violate the Constitution of Virginia, then the Constitution is no longer reliable. This means that the rights and freedoms of the people are completely dependent on the decisions of the legislature.
In the case of Calder v. Bull in 1798, Samuel Chase, serving as a judge, relied on the principles of a higher law and judicial review to uphold restrictions on legislative power that went beyond what was explicitly stated in the constitution.
In the case of Marbury v. Madison 5 U.S. 137, Chief Justice Marshall in 1803 explained the responsibility of the Court when there is a conflict between a regular law and the Constitution, stating that the Constitution takes precedence.
In his paper titled “The Higher Law Background of American Constitutional Law” and his lecture on “The Debt of American Constitutional Law to Natural Law Concepts,” Prof. Edwin Corwin highlights the significance of the dictum in Bonham’s case as a crucial source for the concept of judicial review. This observation has greatly influenced subsequent writers in the field. He discusses the significant role of the common law tradition in shaping judicial review in the United States.
An idea central to the Constitution is the idea of a “higher law,” or body of law, which, in the past, has been the common law or the natural law, but which, in modern times, is often a written constitution. Judicial review, then, predates the concept of a written Constitution.
Therefore, when there is a conflict between higher law and ordinary law, the higher law takes precedence, and the ordinary law is deemed unconstitutional. The responsibility of striking down laws that are unconstitutional rests with the judiciary, which is tasked with enforcing both the laws.
In countries that have a written Constitution and a Bill of Rights, the powers of the Government and Parliament are clearly defined and limited. The Constitution establishes three branches of Government: legislative, executive, and judiciary. Each branch holds supreme authority within its own domain.
Constitutionalism refers to the concept of a government that operates within the boundaries set by a fundamental law. It highlights the idea of a written Constitution as a superior law. Every organ has its own set of powers that are restricted in scope. The judiciary plays a crucial role in upholding the Constitution and determining the powers and boundaries of different branches of government.
Judicial review arises from the idea of a fundamental, higher law. This concept is essentially about the doctrine of ultra vires in Constitutional law. Judicial Supremacy refers to the power of the courts to invalidate laws that are in conflict with the Constitution. It is a concept that involves the review of laws by the judiciary. However, in a democratic nation governed by a written Constitution, the supreme authority lies with the Constitution itself. The prevailing principle is Constitutional Supremacy.
In countries such as England, which until recently operated under the principle of Parliamentary Sovereignty (although this concept has been significantly influenced by the European Convention and the Human Rights Act), the rule of law prevails. This means that executive power is generally subordinate to the law and the legislature, and any action must be supported by legal authority. On the other hand, in countries like the U.S. and India, the absolute reign of law is observed, which entails the subordination of legislative power to constitutional rights and limitations.
Whereas the fundamental principles of our Indian constitutional system are comprised of limited government and judicial scrutiny. The concept entails three primary components: i) a written Constitution that establishes and restricts the government’s organs, ii) the Constitution acting as a supreme law or benchmark against which the behavior of all organs is evaluated, and iii) a mechanism to prevent, control, and if required, invalidate any breach of the supreme law. Judicial review is the penalty used in contemporary Constitutional law.
While our legislatures possess extensive powers, they operate within the boundaries set by the Constitution. In a democratic nation governed by a written Constitution, the supreme authority lies with the Constitution itself. However, it is the responsibility of the Court to interpret the Constitution, as it has the ultimate authority in determining its meaning.
Definition of judicial Review
In government, the definition of judicial review is as the capacity of the court system (judicial branch) to examine court judgments if it believes the executive or legislative branches of the government have developed a law or policy that the judicial system does not believe is reasonable or fair. The United States has three branches of government: executive, legislative, and judiciary. The objective underlying judicial review is to maintain a balance of power among the three bodies of government described above.
In everyday language, the term “judicial review” is often used to refer to the process of reviewing the constitutionality of laws. However, it’s important to note that judicial review can also extend to the actions of administrative agencies, even in countries without a written constitution. This broader scope of review is sometimes referred to as “constitutional review.”
Administrative review evaluates the actions of administrators to determine if they were reasonable or an abuse of discretion. When courts find that challenged administrative actions are unreasonable or involve abuses of discretion, they declare those actions null and void. The same goes for actions that are deemed inconsistent with constitutional requirements when courts exercise judicial review.
Regardless of whether a court has the authority to proclaim the actions of government agencies as unlawful, it may nonetheless accomplish the same outcome via the exercise of “indirect” judicial review. In such instances, the court declares that a disputed rule or conduct could not have been intended by the legislature due to its inconsistency with other laws or recognized legal principles.
Constitutional judicial review
Most people agree that the concept of constitutional judicial review had its start when John Marshall, the fourth chief justice of the US (1801–35), said in Marbury v. Madison (1803) that the US Supreme Court may strike down laws passed by Congress. However, Marshall’s claim of judicial review’s authority was not explicitly supported by the United States Constitution. Its success was dependent on the Supreme Court’s verdict and the lack of strong political opposition to it.
There are various forms of constitutional judicial review. In countries that adopt the U.S. practice, such as Kenya and New Zealand, judicial review is limited to actual cases and can only be conducted retrospectively. This means that only laws that are currently in effect or actions that have already taken place can be declared unconstitutional, and this can only happen when there is a specific dispute between the parties involved.
In France, the process of judicial review occurs in a theoretical manner, without the presence of an actual case or dispute, and it happens before a challenged law is put into effect. In some other countries like Austria, Germany, South Korea, and Spain, courts can review laws only after they have been put into effect. This can be done either in general or in specific cases.
Different legal systems have varying degrees of court authority when it comes to constitutional judicial review. For instance, in the United States, all courts have the authority to consider claims of unconstitutionality. However, in certain countries like France, Germany, New Zealand, and South Africa, only specialized constitutional courts are allowed to handle such claims.
Several constitutions in Europe and Asia, which were written after World War II, included different versions of judicial review. Take France, for instance. The highest court of criminal and civil appeal there, known as the Cour de Cassation, doesn’t have the authority to review judicial decisions. Instead, they have a constitutional council called the Conseil Constitutional, which has a blend of judicial and legislative powers.
Germany, Italy, and South Korea have also established special constitutional courts, while India, Japan, and Pakistan have set up supreme courts that exercise judicial review similar to the United States and the British Commonwealth.
Importance of Judicial review
- It is crucial for upholding the authority of the Constitution.
• It helps to prevent the abuse of power by those in positions of authority.
• It upholds the system of federalism.
• It is crucial to examine potential abuses of power by the legislative and executive branches.
• Ensuring the independence of the judiciary is crucial. • Safeguarding the rights of the people is important.
Classification of Judicial Review
In India there are three main categories in which judicial review can be classified. Here is a list of the items:
- Legislative Action Reviews: This review involves ensuring that laws passed by the legislature align with the Constitution’s provisions.
- Review of Administrative Actions: This tool ensures that administrative agencies adhere to constitutional discipline when exercising their powers.
- Judicial Decision Review: examples of this include the Golaknath case, the Minerva Mills case, the bank nationalization case, the privy purse abolition case, and others.
Characteristics of judicial review
Controlling administrative action:
Controlling administrative actions by the judicial review was significantly observed through several observations. In the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 408E Lord Diplock stated , “Judicial review … provides the means by which judicial control of administrative action is exercised”.
In the case of R (Beeson) v Dorset County Council [2002] EWCA Civ 1812 [2003] UKHRR 353 at [17] according to the Laws LJ, for the Court of Appeal: “The basis of judicial review rests in the free-standing principle that every action of a public body must be justified by law, and at common law the High Court is the arbiter of all claimed justifications”.
HM Government Consultation Paper: Access to Justice with Conditional Fees (March 1998) the significant observation, “the ability to challenge the acts or omissions of public authorities is a necessary check on the use of the power of the State, and a positive encouragement to maintain high standards in public administration by public bodies”.
According to Sedley [2012] JR 95 at [7] “executive government exercises public powers which are created or recognised by law and have legal limits that it is the courts’ constitutional task to patrol”.
Restraining abuses:
Restraining abuses through the judicial review were well define in these cases R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 751B Lord Templeman stated, “judicial review [is] a remedy invented by the judges to restrain the excess or abuse of power”.
In the case R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 62B where Lord Griffiths stated, “The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended”.
Judicial review under US Constitution
The power of judicial review is not specifically mentioned anywhere under the United States(US) Constitution’s text. Instead, the authority to declare legislation unlawful has been seen as an implicit power, which is drawn from Article III and Article VI of the Constitution.
Article III of the Constitution outlines the regulations pertaining to the power of the federal judiciary:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. … The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. … In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Article VI includes the Supremacy Clause, which states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. … [A]ll executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
The following reasoning has been used to infer the power of judicial review from these clauses. The courts have an inherent responsibility to ascertain which laws are relevant to a particular case. Article 1, Section 1 states that “[t]his Constitution” is the “supreme law of the land.” Thus, the United States Constitution is its guiding document. Only laws “made in pursuance” of the Constitution may be considered national laws. Legislation and state constitutions may only be upheld if they do not conflict with federal law. The Constitution renders all laws null and invalid. In any matter “arising under this Constitution,” the federal courts have the authority to rule.
The responsibility to interpret and apply the Constitution and to assess whether a legislation at the federal or state level complies with the Constitution is an inherent obligation of the federal courts. The Constitution must be followed by all judges. In the event of a disagreement, the federal courts must adhere to the Constitution and declare the legislation at odds with itself to be unenforceable. The ultimate power to determine whether legislation is compatible with the Constitution rests with the Supreme Court, since it has final appeal jurisdiction in all matters arising under the Constitution.
Judicial Review under Indian Constitution
Judicial review under Indian constitution does not contain a specific and explicit provision that grants the courts the authority to declare laws null and void. However, specific limitations have been imposed by the constitution on each of the organs; any violation of these limitations would render the law void.
The court has the responsibility of determining if any constitutional limitations have been violated or not.
Here are a few provisions in the constitution that support the process of judicial review:
Article 372 (1) outlines the process of reviewing pre-constitution legislation in court.
Article 13 states that any law that goes against the provisions of the Fundamental Rights will be considered invalid.
Articles 32 and 226 assign the responsibility of safeguarding fundamental rights to the Supreme and High Courts.
According to Article 251 and 254, if there is a conflict between union and state laws, the state law will be considered invalid.
Article 246 (3) establishes that the state legislature has exclusive authority over matters related to the State List.
According to Article 245, the powers of both Parliament and State legislatures are bound by the provisions of the constitution.
according to Articles 131-136, the court is authorized to resolve conflicts that arise between individuals, between individuals and the state, and between the states and the union. However, in such cases, the court may be tasked with interpreting constitutional provisions, and the interpretation provided by the Supreme Court is regarded as the law by all lower courts in the nation.
Article 137 grants the Supreme Court the authority to examine and assess every decision or ruling it has made. An order issued in a criminal case may only be challenged and invalidated if there are clearly visible flaws on the official record.
Overview
Judicial review serves as a protector of the Constitution and ensures the protection of the basic rights outlined in the Constitution. Furthermore, it further allocates authority between the union and the states and precisely delineates the roles of each organ operating inside the country. We have formulated the notion of judicial review, which has now become an integral component of the fundamental framework.
Finally, it is true that judicial review has evolved to protect individual rights, put an end to the abuse of authority, and avoid injustice.
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