[21 May 2024] The Hindu Op-ed: Critical times call for strong judicial adjudication

PYQ Relevance:Mains: 

Q) What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the Constitution? (UPSC CSE 2016)

Q) The Supreme Court of India keeps a check on arbitrary power of the Parliament in amending the Constitution. Discuss critically. (UPSC CSE 2013)


In India, Judicial Review implies (UPSC IAS/2017):
(a) the power of the Judiciary to pronounce upon the constitutionality of laws and executive orders.
(b) the power of the Judiciary to question the wisdom of the laws enacted by the Legislatures.
(c) the power of the Judiciary to review all the legislative enactments before they are assented to by the President.
(d) the power of the Judiciary to review its own judgements given earlier in similar or different cases.


Prelims:  Judicial Review;

Mains: Judicial Review and Judicial Activism;

Mentor comment: The Indian constituent assembly adopted judicial review to ensure the effective functioning of the constitutional democracy in India. Judicial review allows the judiciary to protect the fundamental rights of citizens enshrined in the Constitution. It serves as a mechanism to ensure that laws and actions of the government do not violate these rights. It also ensures the successful operation of constitutional democracy in India. It allows for the protection of democratic principles, the separation of powers, and the independence of the judiciary.

Let’s learn.

Why in the News?

Concerns have arisen due to the ambiguity in the CAA Rules regarding the status of applicants denied citizenship, raising fears of detention center placements.

  • Petitioners have expressed worries about dual citizenship for foreign applicants, potentially leading to citizenship uncertainty and conflicting with the Parent Act.
The Supreme Court of India will assess the constitutionality of the Citizenship (Amendment) Act (CAA) and its associated rules shortly.
Constitutional courts rarely intervene to invalidate legislation, presuming laws passed by Parliament are valid unless proven to violate constitutional provisions.

The lack of interdiction in the Judiciary:

  • Manish Kumar vs Union Of India, 2021: The Legislation is generally assumed to be free of malice. The Supreme Court said that there can be no estoppel against the Legislature, and the concept of transferred malice is alien in the field of legislation
  • Gurudevdatta Maryadit and Ors. vs State Of Maharashtra and Ors (2001): The Supreme Court, in this case, has stated that legislative malice falls outside the jurisdiction of law courts. It also held that it is not appropriate to attribute malice to the legislative process.
  • Case of Anoop Baranwal vs Union of India (2023): This case called for an independent body to select the Election Commission of India (ECI) to avoid executive dominance.
    • The Chief Election Commissioner and other Election Commissioners Act, 2023 reinstated the Prime Minister’s Committee’s role in ECI appointments.
  • Jaya Thakur vs Union of India (2024) challenged the Act, highlighting its unconstitutional nature threatening democratic foundations.
    • The Court’s refusal to prevent the Act’s implementation based on presumed validity raises concerns about safeguarding democracy and free elections.

Impacts of Lack of Interdiction in Critical Times:

  • Conventional wisdom falls short in addressing challenges posed by populist regimes using motivated legislation.
  • Obsolete presumptions of law validity hinder constitutional courts from playing a counter-majoritarian role effectively.
  • Impact of Political Statements: Legislation reflects political ideologies, especially in regimes undermining constitutional democracy. Judicial reluctance to interdict laws based on presumed validity can lead to irreversible consequences, as seen in cases like demonetization and the dilution of Kashmir’s special status.

Way Forward:

  • Strengthen Judicial Review: Judicial review should be strengthened to effectively check legislative actions that manipulate Electoral processes or undermine Constitutional Democracy.
    • Courts need to adopt a more assertive approach in critical times to fulfill their counter-majoritarian role.
  • Prioritize Urgent Cases: Urgent cases challenging unconstitutional laws should be prioritized to prevent irreversible consequences. Delays in deciding such cases can make the litigation almost a fait accompli, as seen in the dilution of Kashmir’s special status.
  • Ensure Effective Implementation of Judgments: Courts should ensure the effective implementation of their judgments by preventing the legislature from overriding them through motivated legislation. 
  • Enhance Judicial Infrastructure: Improving judicial infrastructure, such as increasing the number of judges and courts, can help expedite the hearing of urgent cases. Adequate resources and efficient case management systems are crucial for the timely delivery of justice.

What is Judicial Review?

The term “judicial review” refers to the power of the courts to examine the actions of the legislative, executive, and administrative branches of government to determine if they are consistent with the Constitution.

Article 372 (1) establishes the judicial review of the pre-constitution legislation. 

Article 13 declares that any law which contravenes any of the provisions of the part of Fundamental Rights shall be void.
The primary purpose is to uphold the rule of law and protect the Constitution by striking down unconstitutional laws or actions. It is based on the Constitution and existing legal precedents.

What is Judicial Activism?

Judicial activism occurs when judges take an active role in shaping policies by broadly interpreting the Constitution and laws to achieve what they consider just outcomes.
According to Articles 32 and 226 of the Indian Constitution, the higher judiciary has the power to consider any legislative, executive, or administrative action as unconstitutional and void if it does so.
Judicial activism often involves mechanisms like suo-moto cases and public interest litigation that have no explicit constitutional backing.
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