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Judicial Review: In Need Of Reform

The article focuses on the meaning of judicial review, the supremacy of Judicial review, the doctrine of checks and balances, Separation of power in Judicial review, erroneous Judicial review, and the limitations in a judicial review where reform is needed.

By: Roopal Dhoot, 2nd Year, BA LLB, ILS Law College.

What is Judicial review?

Our Constitution provides necessary condition but not a sufficient safeguard against the violation of the Federal system. That is why this necessitates the creation of an institution that can act as an independent arbiter at the time of imbalances which can be performed only by an independent judiciary protected from political pressure or other extraneous influences it is to defend the Constitution from Legislative and Executive encroachment. Judicial review is the power of courts to pronounce upon the Constitutionality of Legislative and Executive acts of the government which falls within their normal jurisdiction when Legislative and Executive have harmed some Constitutional values and deny some right at that Judicial review plays an important role.

The power of judicial review is incorporated in Article 226 and 227 of the Constitution in regards to the High Courts and Article 32 and 136 to the Supreme Courts. 

Supremacy Of Judicial Review 

In the case of AK Gopalan Vs The State Of Madras (AIR 1950 SC 27), the Supreme Court held that a statute to be valid must in all cases conform with the Constitutional requirements and it is for the Judiciary to decide whether enactment is constitutional or not.

In the case of Golaknath Vs State Of Punjab(1967 AIR 1643), Chief Justice Subba Rao upheld the role of the Judiciary and said that Articles 32,141,142 are couched in such wide and elastic terms as to enable this court to formulate legal doctrines to meet the ends of Justice.

Under Article 13 of the Indian Constitution, the procedure and the compulsion of Judicial review was described in part III of the Fundamental Rights.

Doctrine Of Checks And Balances 

In this principle, separate branches are empowered to prevent actions by other branches and are induced to share power. Some elites check and balance the power of others because of which there is a restriction to the government or the individual. The doctrine of checks and balances avoids watertight unyielding segments of laws. It is useful to keep a check on the people who just want to improve their power by performing selfishly. In the Indian Democratic system, the Judiciary has the power to check the legitimacy of legislation endorsed by the parliament.

Separation of Powers 

The principle of ‘separation of powers’ requires that each organ should be independent of the other and no organ should perform functions that belong to the other. It is a check against tyrannical rule because the concentration of power in one place can result in tyranny.

According to Article 13 of the Constitution, Nation shall not produce the rule which condenses the right as pondered in part III.

If any legislation was created against this law, it will be declared as void or unconstitutional. 

In the doctrine of separation of power, only the Judiciary has the power to check up on the validity of the legislature. Separation of power is distributed to all the three structures i.e Legislature, Executive, and Judiciary under the Indian Constitution. Many times these organs overlap in their powers and at that time dishonesty, corruption takes place. Judiciary is one of them where judgment is found conflicting, erroneous, and has time to time reverse their Judgment through Judicial review.

Erroneous Judicial Review 

In the case of Santosh Kumar Satish Bhushan Bariyar Vs State of Maharashtra (2009 6 SCC 498) where the petitioner was convicted for the death penalty by the trial Judiciary and the higher Courts of the State, the Indian Apex Court accepted that the Judgement in the Rajiv Case was erroneous and careless. This has come after thirteen years of his hanging. Once the person is hanged, the court cannot give his life back. The error rate of the Supreme Court is 25%. There is no severe miscarriage of Justice other than this said by Prabha Sridevan former Justice of Madras High Court.

Limitations In Judicial Review Where Reform Is Needed

1.Cost Of Litigation 

It is one of the most disadvantageous under the procedure of court for the Judicial review. The litigation cost contains the processing fee, court fee, advocate fee. The non-payment of Judiciary fees consequences in dismissal of the suit. Article 39A mentions that serving Justice is not to deprive citizens through economic disability. More than half of the population is illiterate and unaware of their rights, that is why they are unable to approach the court for Justice. They do not have enough food to eat. In such conditions, they have no money to spend on advocate fees.

2. Justice Delayed Is Justice Denied

The number of pending cases in the Judiciary is increasing day by day. Many of the prisoners have already completed their maximum sentence but justice has not been provided to them yet, due to the failure in the justice delivery system. All of these factors have led to the loss of trust in the Judiciary. Every citizen has the right to access justice but due to the delay, the service condition and a large amount of fees people are losing their faith in the Judiciary.

3. Strength Of Judge

Every High Court in India has a different number of Judges and it is decided by the President of India that how many Judges would be sanctioned for the particular High Court and the Parliament does not play any role there. Andhra Pradesh High Court right now has a 70% vacancy while Rajasthan has a 52% vacancy.

If we look across the country, Sikkim is the only State where the High Court does not have any vacancies. The population ratio is 10.5 million for one judge, which is the lowest in the world. And this plays a vital role in delaying justice.

4. Compromise In The Quality Of Justice

The number of cases is increasing but the government is not increasing its budget for infrastructure. Most of the courts do not have a good library, proper workspace, insufficient court staff which is essential for qualified judgment. Proper infrastructure and support need to be provided by the government to the court. 

5. Corruption In Judiciary

Where there is power, there is corruption. The corruption in Judiciary has extended in each level from subordinate to higher. There is carelessness and directly or indirectly, they get involved in corruption and there is no simple procedure to remove the corrupt judge. At a time where there are inequalities between Legislative and executive, Judiciary plays a vital role and all these instances lead to degrading the image of the Judiciary in the mind of the public.

Conclusion

Whatsoever the case may be but now also whenever we get into some kind of fight we never forget to say “I will take it to the court” which shows that people still have faith in the Judicial System. That is why the government should also try to improve the quality of Justice and make the courts more approachable for the public. 

Endnotes:

[1] Vibhuti Singh Shekhawat “Judicial Review in India: Maxims and limitations” vol. 55 The Indian Journal of Political Science (1994)

[2] Randell G. Holcombe “Checks and Balances: Enforcing Constitutional Constraints” FL32306 Department of Economics: University of Florida(2018)

[3] Samirendra Nath Ray “The Crisis of Judicial Review in India” vol. 29 The Indian Journal of Political Science(1968)

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