Judicial Review

The concept of Judicial Review started from the case of Marbury vs Madison in 1800 in the USA. In this case, justice John Marshall held that
judiciary has inherent power to review actions by legislature even if no explicit provision is given in the constitution.

Indian Situation
By adopting a written constitution and an independent judiciary, India has provided the rule of law instead of rule on men to the citizens. However,
the rule of law will be rendered useless if the legislature is able to make laws that violate the fundamental rights of the citizen. Thus, the
constitution in Art 13 has provided the judiciary with the power to review laws made by the legislature. This is called Judicial Review.
Art 13 says:

1.

All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent
with the provisions of this Part, shall, to the extent of such inconsistency, be void.

2.

The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void.

3.

In this article, unless the context otherwise requires,

4.

(a) law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of
India the force of law;

laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India before
the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof
may not be then in operation either at all or in particular areas.

Nothing in this article shall apply to any amendment of this Constitution made under article 368.

In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that the power vested in SC by art 32 and High Court by art 226 over
legislative action is a basic feature.

Indian Constitution has given high importance to the Independence of Judiciary System. Every democratic
country puts a great store on the independence of the judiciary as a guarantee of individual freedom. Independence of the judiciary
means that the judiciary as an organ of the government should be free from influence and control of the other two organs i.e. the
executive and the legislature, of government. Freedom from the influence and control of the executive is of crucial importance. It is
important for individual freedom, that the judges give their verdict without fear or favor.
Every democratic country adopts various means to ensure freedom of the judiciary and thereby to ensure individual freedom. The
U.S.A. has adopted system of separation of powers to ensure independence of the judiciary. But in constitutional systems based on the
concept of Parliamentary sovereignty, the adoption of separation of powers is ruled out. This is the case in England. This is also partly
the case in India, for in India, the doctrines of Parliamentary and constitutional sovereignty are blended together.
The constitution of India adopts diverse devices to ensure the independence of the judiciary in keeping with both the doctrines of
constitutional and Parliamentary sovereignty.
o

Firstly, the judges of the Supreme Court and the High Courts have to take an oath before entering office that
they will faithfully defend the constitution of India and the laws. Recognition of the doctrine of constitutional
sovereignty is implicit in this oath.

Secondly, the judges of the Supreme Court and the High Courts are appointed by the President. The
President makes the appointments in consultation with the highest judicial authorities. He of course takes advice
of the Cabinet. The constitution also prescribes necessary qualifications for such appointments. The constitution
tries to make the appointments unbiased by political considerations.

Thirdly, the judges of the Supreme Court and the High Courts serve during good behavior and not
during the pleasure of the President, as is the case with other high Government officials. They may be removed
from office only through impeachment. Their salaries and allowances once fixed cannot be varied adversely
during their tenure, except during a financial emergency under Article 360 of the constitution.

Fourthly, the judges serve up to the 65th year of age and after retirement cannot engage in legal practice.