Our Constitution provides necessary conditions but, not a sufficient safeguard against the violation of the Federal system. That’s why this necessitates the creation of an institution who 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. Basically 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 Articles 226 and 227 of the Constitution in regards to the High Courts and Article 32 and 136 to the Supreme Courts.Â
SUPREMACY OF JUDICIAL REVIEWÂ
In the case AK Gopalan v. State of Madras[1], the Supreme Court held that a statute to be valid must in all cases be in conformity with the Constitutional requirements and it is for the Judiciary to decide whether an enactment is constitutional or not.
In the case Golaknath v. State of Punjab[2], Chief Justice Subba Rao upheld the role of 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 BALANCESÂ
[3]In this principle separate branches are empowered to prevent actions by other branches and are induced to share power. Basically 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 avoid water tight unyielding segments of laws. It is useful to keep check on the people who just want to improve their power by performing selfishly. In Indian Democratic system, the Judiciary has the power to check the legitimacy of legislations endorsed by the parliament.
SEPARATION OF POWERSÂ
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. Basically it is a check against tyrannical rule because concentration of power at 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.Â
In the doctrine of separation of power only the Judiciary has the power to check upon 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 judgement is found conflicting, erroneous and has time to time reverse their judgment through Judicial review.
ERRONEOUS JUDICIAL REVIEWÂ
In case of Santosh Kumar Satish Bhushan Bariyar v. State of Maharashtra[4] where the petitioner was convicted for death penalty by the trial Judiciary and the higher Courts of the State. The court stated that the situations, which are related to criminal and crime must be looked before the pronounced death penalty.Â
The Indian Apex Court in their judgement accepted that the Judgement in the Rajiv Gandhi Assassination 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.
https://effectivelaws.com/secularism-in-india-is-it-a-facade/
LIMITATIONS IN JUDICIAL REVIEW WHERE REFORM IS NEEDED.
COST OF LITIGATION[5]
It is one of the most disadvantageous under the procedure of court for the Judicial review. The litigation cost contains the process fee, court fee, advocate fee. The non payment of Judiciary fees consequences in dismissal of the suit. In Article 39A, it is clearly mentioned 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’s 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 for advocate fees.
ADVOCATE FEES
The power of money has influenced the verdict of the judiciary, although Article 14 assured equivalent defence it has always been violated. According to Section 57 of the Indian Evidence Act, 1872, judges are presumed to know every law. So in such situations there is no need of an advocate. Under the Advocates Act, 1961, an advocate’s duty is to assist in the administration of justice. They are considered as the officers of the court. The court requires the aid of advocates in the administration of Justice, without giving any financial assistance. In this case, paying fees to the advocate, disrupts Article 14 of the Indian Constitution.
JUSTICE DELAYED IS JUSTICE DENIED
The number of pending cases in Judiciary is increasing day by day. Many of the prisoners have already completed their maximum sentence but the 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 Judiciary. Every citizen has the right to access justice but due to the delay, the service condition and large amount of fees people are losing their faith in the Judiciary.
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. Parliament does not play any role there. [6]Andhra Pradesh High Court right now has 70% vacancy, Rajasthan has 52% vacancy. In fact 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.
COMPROMISE IN THE QUALITY OF JUSTICE
The number of cases is increasing but the government is not increasing their budget of infrastructure. Most of the courts do not have good libraries, proper work space, insufficient court staff, which is essential for qualified judgement. Proper infrastructure and support need to be provided by the government to the court.Â
DELAY IN INVESTIGATION
It is the part of documentation, where crime is committed by the accused. Many times the accused gets bail and creates hurdles in the investigation process. Many times investigation officers have more than one investigation work at a time, which causes delay in their normal work. Sometimes team investigations even cause delay. It has been seen that in some cases courts are not satisfied with an investigation report. In such conditions, the court directs for reinvestigation which takes even more time.
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 times where there are inequalities between Legislative and Executive, Judiciary plays a vital role and all these instances lead to degrading the image of Judiciary in the mind of the public.
MISUSE OF POWER
Many times judges misuse their power to access justice. Being humans, the judges are also a part of human society. The judges are interlinked with officials and advocates. They sometimes provide gratification to the judges for making judgement in their favor. There are so many middlemen who always try to approach the judges for their personal benefits. This leads to misuse of power by the judiciary officer.
CONCLUSION
Whatever 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”. It shows that people still have faith in the Judicial System. That’s why the government should also try to improve the quality of Justice and make the courts more approachable for the public.Â
REFERENCES:Â
[1] (AIR 1950 SC 27).
[2] 1967 AIR 1643.
[3] Randell G. Holcombe “Checks and Balances: Enforcing Constitutional Constraints” FL32306 Department of Economics: University of Florida(2018).
[4] (2009) 6 SCC 498.
[5] Vibhuti Singh Shekhawat, 55 “Judicial Review in India: Maxims and limitations”, The Indian Journal of Political Science (1994).
[6] Samirendra Nath Ray, 29 “The Crisis of Judicial Review in India”, The Indian Journal of Political Science(1968).
BY ROOPAL DHOOT | INDIAN LAW SCHOOL, PUNE