Meaning of Judicial review & Role of the

judiciary in the state

Judicial Review
Judicial Review is a process by which judiciary can review the
executive actions & (in some countries) legislative actions U.K.,
New Zealand, and some other countries have Legislative
Supremacy over the Judiciary and the Executive. It means that
Parliament can pass any legislations if they want & Judiciary
cannot nullify it.
This point is made clearly by Lord Reid:1
“It is often said that it would be unconstitutional for the
United Kingdom Parliament to do certain things, meaning that
the moral, political and other reasons against doing them are so
strong that most people would regard it as highly improper if
Parliament did these things. But that does not mean that it is
beyond the power of Parliament to do such things. If Parliament
chose to do any of them, the courts would not hold the Act of
Parliament invalid.”
In a landmark case Marbury v. Madison 2, by the United
States Supreme Court which forms the basis for the exercise of
judicial review in the United States under Article III of the
Constitution. The landmark decision helped define the boundary
between the constitutionally separate executive and judicial
branches of the American form of Government.
Judicial review is adopted in the Constitution of India from
judicial review in the United States of America. In the Indian
constitution, Judicial review is dealt with under Article 13.
Judicial Review refers that the Constitution is the supreme
power of the nation and all laws are under its supremacy.
Article 13 states that:
1. All pre-constitutional laws, if in part or completely in conflict
with the Constitution, shall have all conflicting provisions
deemed ineffective until an amendment to the Constitution
ends the conflict. In such situation, the provision of that law will
again come into force, if it is compatible with the constitution as
amended. This is called the Doctrine of Eclipse.
2. In a similar manner, laws made after adoption of the
Constitution by the Constituent Assembly must be compatible
1
Madzimbamuto v Lardner-Burke [1969] 1 AC 645:
2
5 U.S. 137 (1803)

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 with the constitution, otherwise the laws and amendments will
be deemed to be void ab initio.
3. In such situations, the Supreme Court or High Court interprets
the laws to decide if they are in conformity with the
Constitution. If such an interpretation is not possible because of
inconsistency, and where a separation is possible, the provision
that is inconsistent with constitution is void. In addition to
article 13, articles 32, 226 and 227 provide a constitutional
basis to judicial review in India.
Due to the adoption of the thirty-eighth amendment, the
Indian Supreme Court was not allowed to preside over any laws
adopted during a state of emergency that infringes upon
fundamental rights under article 32 i.e. Right to Constitutional
Remedies. Later with the Forty-second Amendment of the
Constitution of India, article 31 C was widened and article
368(4) and 368(5) were added, which stated that any law
passed by the parliament can't be challenged in the court on
any ground. The Supreme court in the Minerva Mills v. Union
of India3 case said that Judicial Review is one of the basic
character of the constitution and therefore can't be taken away
quashing Article 368(4) & (5) as well as 31 C.
Role of Judiciary in a State
As we all know that there are three organs of government-
Legislature, Executive and Judiciary. All of them constitute the
state. There should be synchronisation in between the three
organs to successfully run a state.
Importance of Judiciary
In the ancient periods, least attentions were paid towards
the independence of judiciary as the Monarchs have all the
powers in their hands. But after a long time, people realised
that it does not give full justice to the victims. Bodin and
Montesquieu give more stress on independence of judiciary. In
the current scenario, all the major democratic countries have
the independent judiciary as to ensure the protection of the
fundamental rights of their citizens. The Judiciary is a guard to
its people and the constitution. In some countries like in China,
Russia, Portugal the Judiciary is not free as a result legislative &
executive bodies can easily exploit their citizens. Bryce has
rightly said,” There is no better test of excellence of a
Government than the efficiency of its judicial system, for
3
AIR 1980 SC 1789

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 nothing more nearly touches the welfare and security of the
average citizen than his knowledge that he can rely on the
certain and prompt administration of the justice.” 4 He further
added,” Law is respected and supported when it is trusted as
the shield of innocence and the impartial guardian of every
private civil right…. if the law be dishonestly administered, the
salt has lost its flavour, if it be weakly or fitfully enforced, the
guaranteed of order fail …. if the lamp of justice goes out in
darkness, how great is that darkness?
In many countries, the judiciary is the advisor to the
executive in legal matters. Bryce says,” The significance of
judiciary by Marriot who observes.’ It matters not how elaborate
the machinery of legislation may be, how scientific the product,
how perfect the organisation of the executive, the life of
individual citizen may nevertheless be rendered miserable, his
person and property will be alike insecure, if there be any
defect or delay in the administration of justice or any partiality
or ambiguity in the interpretation of law.” Garner also observes
“A society without legislative organs is conceivable and indeed,
fully developed legislative organs did not make their
appearance in the life of the state until modern times, but a
civilised state without a judicial organ is hardly conceivable.” 5
Thus, the judiciary is essential otherwise the tough people will
exploit the weak people of the society. Therefore, judiciary is
important for maintaining peace and for enjoyment of
fundamental rights.
Functions of the Judiciary
Judiciary performs following functions for safety and welfare of
the society.
1. It interprets the law.
Many cases are brought before the judges in which the law
is not clear or are silent. The court gives the decision. Later, it is
quoted in other similar cases. In this way, the court interprets
the law.
2. Protector of civil rights.
Court protect the rights given to the citizen by the
Parliament.
3. Decides the cases.

4
Bryce: “Modern Democracies”, Vol. II, p. 421
5
Garner: “Political Science and Government”, (1955), p. 684

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 The Court gives the decision in disputes between the
citizen & citizen, citizen & the state
4. Custodian of the fundamental rights.
In India, Supreme Court is the Custodian of the
Constitution. It means that if any fundamental right of any
person is violated s/he can file an appeal in High Court or the
Supreme Court for the protection of his/her fundamental rights.
5. Guardian of the Constitutions.
In the famous Marbury vs Madison (1803) case the then
Chief Justice Marshall of U.S.A. said that the Constitution is the
highest law of the land and it’s the duty of the courts to protect
it. The principle laid by Justice Marshall is now known as Judicial
Review.
6. Decides the conflicts of jurisdiction between the Centre
and State Governments in Federations.
In the federal constitution, there is always a possibility of
disputes between the jurisdiction of State and Centre.
Therefore, Supreme Court has the has the right to decide the
dispute.

7. Advisory.
In India, The Supreme Court has given the right in the
Constitution to render advice on legal matters when asked for
by the President
8. Miscellaneous functions.
The court appoints the guardians for the property of
minors. It appoints the receivers for the companies which are
unable to meet their financial obligations. It accepts the appeals
relating to the elections.
Independence of Judiciary
Need and the importance of the independence of the
judiciary.
For giving decision without any fear, Judiciary should be
independent otherwise Legislature would affect the decision of
the Judiciary. President William Howard Taft said” As between
the individual and the state, as between the majority and the
minority, as between the powerful and the weak, financially,
politically, socially, courts must hold an even hand and give

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 judgement without fear or favour.” Dr. Garner says” If the,
Judges lack wisdom, probity and freedom of decision, the high
purpose for which the judiciary is established cannot be
realised”.
Conditions or factors which make the Judiciary
independent
1. Mode of the appointment of judges.
There are 3 modes of the appointment
a. Election by the people
In some parts of India people elect the President of Judicial
Panchayats. This method is used in the major parts of U.S.A.
There are some historic examples of the defeat of the able and
distinguished judges because of unpopularity of judicial
decisions. Laski said, “Of all the methods this election is without
exception the worst.”6
b. Elections by the Legislature
This method is used in Switzerland. This method is not
good as Judge require a majority to be elected so he must be
friend of the party. So, he will not give correct justice.
c. Appointment by the Executive
This method is used in England, India, Canada, Australia,
Japan and U.S.A. The appointment of Chief Justice of India is
done by the President on the recommendations of PM and on
consultation of judges of Supreme Court. This method is also
not free from all influences of Parliament.
Laski suggested that judicial appointments should be
made on the recommendations of the Minister of Judges with
the consent of a standing committee of the judges which would
represent all sides of their work.” 7 In lower courts the judges are
selected through examinations done by State Public Service
Commissions and are appointed by Governor. This is best
method and is followed in many countries.
2. Long tenure
A long tenure of the judges is important for justice. When
the tenure will be short the judge will be busy for his re-
election. He will not give full justice because of being re-
elected.
6
Laski: “Grammar of Politics”, p. 545
7
Laski: “Grammar of Politics”, p. 548

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3. Security of service
For the independence of judiciary, it is essential that there
should be security of service for judges and the executive
should not remove them at will. If this situation happens the
judge will never give decision against executive and legislature
4. Adequate salary to the judges
It is necessary that they should be paid enough to run their
livelihood and not to indulge in corrupt practices.
5. High Qualification
For the independence of judiciary, it is also important that
the judges should be able persons since only an able judge can
give correct decisions and express his views freely.
6. Separation of the judiciary from the Control of Executive
For the independence of judiciary Montesquieu
emphasised that judiciary should be kept free from executive
otherwise no justice will ever be given to people
7. No practice after retirement
The judge should not be allowed to do legal practice after
retirement, because his previous colleagues would favour him
in the cases in which he appears as a lawyer.

Conclusion
Based on above points we can conclude that the appointment
of judges should be good and their dismissal should be very
tough, their tenure should be long and salary should be
adequate.
Willoughby has well said,” that judges shall be selected
without regard to their political affiliations, that once selected,
they should hold office for a long tenure, they shall not be the
subject to dismissal by the executive may be removed for the
misconduct by the impeachment by both the houses and their
compensation shall not be withheld or diminished during their
term in the office.”