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Origin of Judicial Review and Its Excessive Use

Origin of Judicial Review and Its Excessive Use

Judicial review is defined as the power of the courts to pronounce upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be unconstitutional and hence void. The doctrine of judicial review has been originated and developed by the American Supreme Court, although there is no express provision in the American Constitution for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had the power of judicial review. Chief Justice George Marshall said, “Certainly all those who have framed the written Constitution contemplate them as forming the fundamental and paramount law of the nations, and consequently, the theory of every such Government must be that an act of the legislature, repugnant to the Constitution is void”. There is supremacy of Constitution in the U.S.A. and, therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts declare void the acts of the legislature and the executive if they are found in violation of the provisions of the Constitution. The Indian Constitution adopted the Judicial review on lines of the US Constitution as parliament is not supreme under the Constitution of India.

Importance of judicial review can be summarised in the following points;

1. Maintains the supremacy of the Constitution.

2. Checks the possible misuse of power by the legislature and executive.

3. Protects the rights of the people

4. Secures the independence of the judiciary

Despite the fact that judicial review is of great importance in maintaining the sanctity of the Constitution of India yet many top lawyers in India and various scholars are of the opinion that the power of judicial review has been at times used to an extent whereby it has encroached in the field of the legislature. Vishaka v. State of Rajasthan is a very famous case pertaining to sexual harassment. Prior to the decision given by the court in this case no law was in force which dealt with sexual harassment and a victim had to file a complaint under section 354 of the India Penal Code which dealt with criminal assault of women to outrage women's modesty. Many scholars are of the opinion that the guidelines given by the court, in this case, are an encroachment in the field of the legislature as the court indirectly formulated a law through the guidelines laid down in the judgment which is beyond the power and scope of a court to do. It is also argued that judicial review is a power vested in courts to test the validity of laws enacted by the legislature in order to ensure that no law is made which violates the fundamental rights of the people. The power of judicial review does not allow the courts to formulate new law which was done by the court in vishaka case. The court in this case itself has indirectly said that it is making a law because the legislature will take time in enacting legislation. The court had observed HAVING REGARD to the definition of 'human rights' in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in workplaces as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women. The court itself had acknowledged that the laws in force do not provide for protection against sexual harassment, therefore, the guidelines mentioned by the court are to be followed.

It is therefore said that the excessive use of judicial review results in the interference of legislative function and posed a threat of counter-majoritarian difficulty. But it is important to mention that not everyone is of the opinion that judicial review is excessively used best Supreme Court lawyers and many others are of the opinion that in order to adjust with the growing times it becomes the need of the hour to expand the ambit of judicial review in order to ensure that the rights of people are protected.

However, it is important to note that later in the year 2013, the parliament passed a law namely The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act.



Suwaiba Malik, BA LLB (Hons.) Graduated from University of Kashmir Department of Law. Presently working with LawzGrid a part of Karmasquare as an In-House Lawyer and a Content writer. It is well known that “ignorantia juris non excusat” meaning ignorance of law is no excuse. Following this rule, I desire to educate people about law and by writing various blogs and articles I aim at making legal knowledge easily available so that they become aware about their rights and liabilities.

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