Judicial Review is the power of the judiciary to review the actions taken by the legislature and the executive organ of the government and decide whether or not the actions taken by the legislature and the executive are in conformity with the Constitution. If the enactments done by the legislature and the executive are found unconstitutional then the judiciary has the power to declare those acts illegal, unconstitutional and invalid ( null and void) after which they cannot be enforced by the government.
Origin of Judicial Review
The judicial review is one of the very important contributions of the USA to the political theory. The origin of the judicial review has been result of a judicial decision and the continuance of judicial review has
It is also very important because it allows the supreme court of the country to check the decisions of the lower courts of the country and it also helps to check on the legislative and the executive branch of the government. The most important thing that judicial review do is the protection of the rights of the individuals and it create a balance between the powers of the government and maintain equality to every person. If there is no judicial review then the system of civil liberties would be very different.
Types of Decisions in Judicial Review
The court can give three types of decisions after the judicial review is conducted and the decisions are as follows:
1. The law is unconstitutional.
In this case, if the laws made by the legislature is found unconstitutional then the law will ceases to operate from the date on which the Supreme Court declares the law as invalid or unconstitutional.
2. The law is constitutional and
Article 368 (4)-(5) were inserted in the in the Article 368 because of preventing the supreme court to contradict any Constitutional Amendment Act on the theory of ‘basic features' of the Constitution.
Features of Judicial Review in India
1. Judicial Review is the power which can be used by both the Supreme Court and the High Courts. But the power to determine the constitutionality of any law is in the hands of the Indian Supreme Court.
2. Judicial Review can be used in respect of all central and state laws, orders and the ordinances of the executive. It can also be used in the constitutional amendments
3. The limitation of the judicial review is that it cannot be used in the respect of the laws which are included in the 9th Schedule of our Indian Constitution.
4. Judicial Review can only be applied to the question of laws and it cannot be used in respect of any political issues.
5. Judicial Review is not automatic because the Supreme Court cannot use the power of Judicial review by its own. Judicial Review can only be used when any law or rule is specifically challenged before it or during the hearing of a case the validity of any law is
In the case of U.S. v Jones, the judicial branch had to address the questionable topic of whether or not the Fourth Amendment was violated (). Since this case was not black and white and did bring up many questions as to what was constitutional, the judges had to use judicial review. Judicial review is the power that allows judges to interpret the meaning of laws (Class, March 13). Once a law is understood a certain way, the people must follow it (Class, __). The U.S. v Jones case deals with the Bill of Rights (United, 1). This is due to the circumstance that the Fourth Amendment is included in the Bill of Rights document stating that “searches and seizures” cannot be done without a warrant (Class,___). The case of U.S. v Jones was about the violation of Jones’s Fourth Amendment when a GPS device was placed on his jeep without his consent because he was suspected of drug possession (United, 1). Since judges have the power to informally amend the Constitution using judicial review (Class, ___), they must take into consideration many contributing elements when making a decision.
The Constitution confers judicial power on the Supreme Court and on inferior courts as created by Congress (Hames & Ekern, 2013). Judicial review is the power of the court to interpret the Constitution and invalidate conflicting laws.
Judicial Branches basic job is to determine if laws or acts are unconstitutional. Subsequently, the U.S. Judicial branch checks both the Executive and Legislative branch through checks and balances. The judicial branch has the ability to rule presidential actions unconstitutional and has its judges serve for life. The Judicial Branch can also declare and interpret laws written by the Legislative Branch, and signed by the Executive Branch, unconstitutional. One example of the Judicial Branch checking the Executive Branch was in Late 2014 when the Judicial Branch declared Obama’s immigration acts unconstitutional. This allows the Judicial Branch to check the Executive Branch by allowing laws passed by the Executive Branch to be unconstitutional and not be
2. The judicial branch is known as the evaluators or interpreters. They interpret the meaning of laws and apply them to individual cases; they are the final decision if a law violates the U.S. Constitution (“Branches of Government”).
5. What is the difference between a'smart' and a'smart'? If a human being is a composite substance, she does not have freedom in the libertarian sense.... ... middle of paper ...
The Judiciary Branch offers checks and balances to the other branches of government. To both the Legislative and Executive branches, the Judicial Branch holds the power of judicial review. The Judicial branch can also declare existing laws as unconstitutional.
It did not originally have the power of judicial review until 1803 in the case of Marbury vs. Madison (Young, 283), which then gave the Supreme Court the power to interpret the Constitution and overrule any law or action that was unconstitutional. As part of the political system, the selection of judges has choice of the President and confirmed by the Senate. Once appointed, federal Judges are in the seat until they resign or die and are independent of the President's influence. (Burns, 360-361) For example, the chief justice of the United States is appointed and holds tenure for life.
endment process would undoutedly lead to the rejection of such a scheme. The post decision checks I have described are "often blunt instruments that might not achieve their proponents aims" (Wilson American Government p308 5th edition 2000). Combined with the predecision informal restraints that the court finds itself in they do however form a framework for Supreme Court action. There are certain decisions that are not the field of the judiciary, the court can only step so far outside the views of public moral consensus opinion and only for so long, the court has to act within the constitution itself. But the court so described is still one with enormous scope to govern on an enormous range of Issues.
The court determines whether on not an action is constitutional or not through the process of judicial review. Not only do they keep the Legislative and Executive branch in line, they keep other courts in line. Many and very few cases require the Supreme Court to review and overturn decision. Example are the Miranda v. Arizona cases where the police was in the wrong by violating Miranda’s Fifth and Sixth Amendment therefore ruling in Miranda’s favor. Also the Weeks v. United States case was an example of the Fourth and Fifth Amendment being violated was again ruling in the defendent’s favour. Finally, the Plessey v. Furguson case was a little different really displaying the courts power to interpret laws and ruling in the prosecuter’s favour. The Judicial Branch is certainly not the weakest branch and has a more important role than many people
In the case of Marbury v. Madison the power of judicial review was granted to the Supreme Court in 1801. The Constitution does not give power of judicial review. On Adams last day in office, several government officials upheld the case. Judicial review does not exist in countries that have a centralized or unitary form of government. The elected parliament declares it is the law of the land. Halsema Proposal to Netherlands has taken the initiative to start the process of judicial review.
This type of loosely regulated power is abnormal compared to the other branches of government, and one could pose the question “what happens if the court is wrong?”. Under the constitution, and the concept of judicial review, courts have the power to say what the constitution is, but have no power to enforce it(Shapiro). This is the ultimate check on the court that prevents it from overstepping its authority. One common constitutional theory , is the concept of the sword and the purse. It states that Congress has the sole power of the “purse” to lay taxes and control commerce of the country(Ho). This is then paired with the concept of the sword which is shared between the legislative and the executive branches(Ho): Congress has the power to declare war, and the president will be commander in chief of the army and navy(Constitution). Through this all the Supreme Court is not stated to have any of these powers. In fact, in Federalist 78 Alexander Hamilton states that the legislature is “empowered with will, the executive with force, but the judiciary only has judgement”(Fed. 78). One can assume that the framers excluded these powers from the court on purpose, seeing that the concept of Judicial review was a matter of conversation far before Marbury vs. Madison(heritage).
The Judicial Branch consists of the United States Supreme Court and the lower federal courts. Their role is to hear cases that challenges the legislation or are in need of interpretation of that legislation. (Phaedra Trethan, 2013) (Federal Government, 2003) (Sparknotes, LLC, 2011) (Independence Hall Association, 2008-2012)
all judiciary cases in which any fact is involved,) or may they act by representatives, freely and
views as to whether or not Judicial review, and the Supreme Court as a whole,
Judicial review seeks to enforce and uphold constitutional doctrines which govern the UK’s uncodified constitution by scrutinising administrative action. One constitutional function of judicial review is to enforce the rule of law. It can be argued, in defining the rule of law as “negative value...designed to minimised the harm to freedom and dignity which the law may cause in its pursuit of its goals” Joseph Raz characterised judicial review. The principle of which states the executive is to be ruled by the law and subject to it.