Judicial Review – and their Merits & De-merits


JUDICIAL REVIEW

Judicial Review is an important contribution of the U.S.A. to political science. The power of the Judiciary to declare law unconstitutional is called judicial review. In England the judiciary has no power to sit in judgement on the law passed by parliament. But in countries like U.S.A., Canada, India, Australia, if the legislature passes a law which is against the constitution, the judiciary can declare such law as ultra vires.

The Supreme Court enjoys the power of judicial review. The Supreme Court of India has judicial review power with regard to:

(a) disputes between the centre and the states.

(b) to interpret and clarify a provision of the constitution above which there are some doubts and differences of opinion.

(c) protecting the fundamental rights.

(d) those laws passed by the legislature which are not in accordance with the constitution.

In India, the Supreme Court and High Courts enjoy this power. The following are the merits and demerits of Judicial
Review:

Merits:

1. Judges are competent to make judicial review by virtue of their knowledge and experience.

2. It enables the federal judiciary to act as the guardian of the constitution.

3. The courts are independent and less biased than legislatures.

4. It protects the fundamental rights of the people in particular the rights of the minorities.

5. It is necessary to preserve a free and limited government.

6. It enables the judiciary to guard against legislative haste and rashness.

De-merits:

1. It may violate the spirit of separation of powers.

2. By giving the power of judicial review to the courts the smooth functioning of the representative system of government is affected as the courts infringe upon the legislative and executive functions.

3. Judicial review delays the operation and implementation of important and pressing social policies so necessary for
the needs of a dynamic society.

4. Almost all problems coming before the judges involves issues of political, economic and social importance and
legislation on them. Thus it makes the judiciary a super legislature.

5. Issues brought before the courts are decided by a majority of single judge (in the U.S.A. five to four majority). It shows how the judges are sharply divided amongst themselves and their judgement vitally affects the nation as a whole.

6. Judges may over look the challenges of the changing times and may refuse to move forward. They may become conservative.

7. Judges may follow blindly only the letter of the law totally ignoring its spirit. They may develop hard attitude.

Judicial review has been accepted as an important doctrine in the working of the judiciary.

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