In democratic legal systems around the world, the concept of judicial review plays a crucial role in maintaining the balance of power between various branches of government. Judicial review is the authority given to the judiciary, particularly constitutional or supreme courts, to evaluate laws and executive actions for their compliance with the constitution. While some constitutions explicitly mention judicial review, in others it is inferred from the structure and logic of constitutional governance. The idea of constitutional supremacy is closely tied to judicial review, as it ensures that no law or action can override the foundational principles of the state.
Definition and Purpose of Judicial Review
Judicial review refers to the process by which courts examine the validity of legislative enactments and executive orders. It serves as a safeguard against arbitrary governance and helps protect the fundamental rights of citizens. If a law or action is found to be inconsistent with the constitution, the judiciary has the power to strike it down or declare it null and void.
Why Judicial Review Is Important
Judicial review ensures the supremacy of the constitution by making it the ultimate standard against which all laws are tested. It prevents the legislature or executive from enacting or enforcing laws that are unjust, discriminatory, or violative of constitutional rights. Furthermore, it reinforces the idea of separation of powers and checks and balances, which are foundational principles in democratic governance.
Judicial Review in Written Constitutions
In some countries, the power of judicial review is explicitly mentioned in the constitution. These provisions outline the jurisdiction of the courts and define the extent to which they can review legislative or executive actions. Countries like the United States, India, and South Africa provide examples of constitutions where judicial review is either expressly stated or firmly established through interpretation.
United States Constitution
Although the U.S. Constitution does not contain the term judicial review, the practice was firmly established in the landmark case ofMarbury v. Madisonin 1803. Chief Justice John Marshall stated that it is emphatically the province and duty of the judicial department to say what the law is. Since then, judicial review has become an entrenched feature of the American legal system.
Indian Constitution
The Indian Constitution explicitly provides for judicial review under various topics. For instance:
- topic 13: Declares that any law which is inconsistent with or in derogation of the fundamental rights shall be void.
- topic 32 and 226: Empower the Supreme Court and High Courts respectively to issue writs for the enforcement of rights.
- topic 131 and 136: Grant the judiciary the authority to settle disputes involving the constitutionality of laws and executive actions.
This framework confirms the judiciary’s power to act as a guardian of the Constitution and fundamental rights.
South African Constitution
South Africa’s post-apartheid Constitution, adopted in 1996, explicitly provides for judicial review. The Constitutional Court has the authority to declare acts of Parliament or conduct by the executive as unconstitutional. Section 172 of the Constitution mandates that courts must declare law or conduct that is inconsistent with the Constitution to be invalid.
Judicial Review in Unwritten or Flexible Constitutions
In countries with unwritten or flexible constitutions, like the United Kingdom, the doctrine of parliamentary sovereignty prevails. Here, judicial review of primary legislation is limited. However, courts can still review executive actions and ensure they are lawful, rational, and procedurally fair.
United Kingdom’s Approach
The UK does not have a single codified constitution. Instead, it operates on statutes, conventions, judicial decisions, and constitutional documents like the Magna Carta. Judicial review in the UK mainly involves reviewing decisions by public authorities rather than Acts of Parliament. However, with the incorporation of the Human Rights Act 1998, UK courts gained the power to review legislation for compliance with the European Convention on Human Rights.
Mechanics of Judicial Review
The process of judicial review varies across jurisdictions, but the fundamental steps usually include:
- A petition or case is filed by an individual or group claiming that a law or action violates the constitution.
- The court determines whether it has the jurisdiction to hear the matter.
- The court examines the law or action in question and compares it with constitutional provisions.
- If found unconstitutional, the court may invalidate the law or require corrective action.
This process ensures that the legal system remains aligned with constitutional principles and democratic values.
Types of Judicial Review
Judicial review can be categorized into different types based on its scope and application:
- Constitutional Review: Focuses on assessing the constitutionality of laws and amendments.
- Administrative Review: Involves reviewing the actions and decisions of public officials or administrative bodies.
- Judicial Review of Fundamental Rights: Concentrates on whether laws violate the fundamental rights guaranteed by the constitution.
Criticism and Challenges
While judicial review is vital to constitutional governance, it is not without criticism. Some argue that it gives unelected judges too much power over democratically enacted laws. Others contend that it can lead to judicial activism, where courts go beyond their mandate and encroach on legislative functions. These debates underscore the need for judicial restraint and adherence to constitutional boundaries.
Judicial Activism vs. Judicial Restraint
Judicial activism refers to instances where judges interpret the law broadly to achieve social justice or public interest. On the other hand, judicial restraint advocates a conservative approach where judges avoid overriding legislative decisions unless absolutely necessary. The balance between these two philosophies shapes how judicial review is practiced in different contexts.
Global Influence of Judicial Review
Judicial review has become a standard feature in many democratic countries. Its success in protecting constitutional values has led to its adoption and adaptation across various legal systems. Countries transitioning to democracy often incorporate judicial review to ensure that governments remain accountable and that constitutional rights are upheld.
The concept of judicial review, whether explicitly mentioned in the constitution or derived from it, plays a critical role in upholding constitutional democracy. It ensures that the rule of law prevails over arbitrary governance and protects the rights and freedoms of individuals. As societies evolve, the role of judicial review becomes increasingly important in maintaining justice, fairness, and adherence to constitutional norms. Ultimately, judicial review reinforces the foundational principle that the constitution is the supreme law of the land.