Critique on Judicial Review
By Aaratrika Bal
The judicial review usually is referred to that authority of the judiciary where it gets to infer the Constitution and then announce any law or order passed by the legislature or executive as invalid or void. It is prevalent in the nations which have their own written Constitution like India. The articles of the Indian Constitution which provide for judicial review are Article 13, Article 32, Article 226, Article 227 and Article 136. In India, the judicial review consists of three aspects. They are as follows:
1. “Judicial review of legislation action”,
2. “Judicial review of administrative action”,
3. “Judicial review of judicial decisions”.
According to the above-cited article, “In this way, the legal survey is intricate and developing the subject. It has its foundations long back and its degree and degree shift from case to case. It is viewed as the fundamental elements of the Constitution. The court in its activity of its capacity of legal survey would fanatically protect the human rights, key rights and the residents' privileges of life and freedom as additionally numerous non-statutory forces of administrative bodies as respects their command over property and resources of different sorts, which could be consumed on structure, medical clinics, streets and so forth, or abroad guide, or compensating victims of crime.”
There had been many cases linked to the authority of judicial review like State of Madras v V.G. Row, Golaknath v State of Punjab. In the case of Keshavananda Bharti, the function of judicial review was highlighted. Judicial review not only confirms if the legislation made are according to the proper procedure but also confirms that they do not contradict some existing provisions of law. The foundation of this power of the Supreme Court, that is the judicial review had been done infamous cases like A. K. Gopalan v State of Madras, Marbury v Madison, Romesh Thapar v State of Madras, Dwarka Prasad v State of Uttar Pradesh and Dwarkadas v Sholapur Spinning and Weaving Co., etc. the power of judicial review is very complex in India. It is often considered that the process is not properly evaluated and that the judges are unelected. In many countries the public vote for the judges. There is a constitutional limitation of the judicial review too. The judicial review considers law and politics to be two completely different sectors. Nowadays it might be misused and be influenced by personal affairs. The personal affairs might lead to bias too. Thus, there are many factors that can be used as a criticism of the power of judicial review exercised by our judiciary. Higher courts can also use this power against the public. Judicial review gives the power to scrap off laws and orders, but this also creates conflict. Presently, the idea of judicial review has undergone a major change, the precise sense of judicial review is never again compelling.
The open experts release their obligations; they have enough space for appropriate watchfulness. This is the huge disadvantage in our framework, that the general population, who are unsatisfied from the choice of open expert, take it to the court. The court does not give an advantage to the next affected individuals. The judicial review helps in adjudication matters more, when compared to administrative issues. “It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the Constitution”. Also, it is considered that the review is not of a nature that can be decided by courts.
The review is usually retrospective. Thus, I feel there is much criticism against this power of judicial review. It is also a time taking and expensive process in the eyes of an amateur. The conclusion of this criticism given above is that, although the judicial review is of actual judicial nature, it creates an issue when it is expected to provide aid and help in matters it is not supposed to function. The scope of judicial review is decreased due to its limitation in availability and function. This jurisdiction is abused too by influential people. This power is not automatic in nature, that is, the Supreme Court can not use the power whenever it wants to, the apex court can use it only when there is a question about the validity of any law. Critics describe this power to be undemocratic in nature and also it lacks clarity. It also is the cause of suspension and inadequacy. Many provisions have been taken to stop the misuse of this power of the judiciary. The use of judicial power has been limited to only legal and constitutional cases. The Parliament can pass laws and amendments for overriding the hurdles created by Judicial Review.
Thus, after going through all the criticism about judicial review, we need to make sure that it is not inclined by either the court or by the influential society of the society. Judicial review has been introduced for an important and useful purpose, and if utilized properly, it can be of great use to the society and the justice system.