What is judicial review?
It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution.
Judicial review has two important functions, like, of legitimizing government action and the protection of constitution against any undue encroachment by the government.
Importance of Judicial Review:
It is essential for maintaining the supremacy of the Constitution.
It is essential for checking the possible misuse of power by the legislature and executive.
It protects the rights of the people.
It maintains the federal balance.
It is essential for securing the independence of the judiciary.
It prevents tyranny of executives
Critical perspective on the CAA
The recently promulgated CAA Rules are unclear about the fate of the applicants whose request for citizenship is turned down has aggravated concerns over the issue.
There is also a fear that persons whose applications are disallowed might end up in detention centres.
Some of the petitioners before the Court have also raised concerns over dual citizenship to foreign applicants who need not have to abandon their original citizenship.
This would create uncertainty in the matter of citizenship, as it goes against the spirit of the parent Act, it is pointed out.
Interdicting a statute or set of statutory rules is not a routine exercise undertaken by the constitutional courts.
Generally, a law made by Parliament is presumed to be valid unless it is shown to have ostensibly breached constitutional provisions.
The law presumes that, normally, malice cannot be attributed to a process of legislation (Manish Kumar vs Union Of India, 2021).
In Gurudevdatta Vksss Maryadit and Ors. vs State Of Maharashtra and Ors (2001), the Supreme Court said that “legislative malice is beyond the pale of jurisdiction of the law courts....”
Recent cases
Every piece of legislation is a political statement.
A regime that does not believe in the idea of constitutional democracy would naturally enact laws with scant regard to the scheme of the Constitution.
On such occasions, a sense of judicial euphoria about the ‘validity’ of the laws has precluded the Supreme Court from interdicting the operation of laws.
The absence of an order of stay against demonetisation has allowed the tragedy to happen and by the time the case was decided in Vivek Narayan Sharma vs Union of India (2023), the situation was totally irreversible.
The lack of interdiction of the dilution of Kashmir’s special status has also made the litigation almost a fait accompli, as one finds in the judgment In Re Article 370 of the Constitution of India (2023).
Anoop Baranwal vs Union of India (2023) was a radical judgment by the Constitution Bench of the top court that called for an independent body to select the Election Commission of India (ECI), with no predominance for the executive of the day.
But, recently, the Centre promulgated the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
This Act revived the earlier position of the “Prime Minister’s Committee” choosing the ECI.
It comprises the Prime Minister, a Minister chosen by him and the Opposition Leader in the Lok Sabha, whose presence is inconsequential for all practical purposes.
Appointments were made based on the new law.
The law was challenged in Jaya Thakur vs Union of India (2024).
The Court, however, refused to prevent the operation and implementation of the statute based on “presumption” of its validity.
This is not a targeted legislation, but an enactment, which, on the face of it, is unconstitutional.
The statute threatens the very foundation of our democracy, of which free and fair elections are a basic feature.
This is an illustrative case where the Court failed to protect its own judgment, essentially on account of the judicial superstition regarding the presumption of validity of the enactment.
It is no wonder that in the general election 2024, the commissions and omissions by the ECI on several occasions remain questionable.
Case of targeted legislation
The CAA and the rules under it, on the other hand, clearly fall within the category of targeted legislation.
Legislative malice is writ large in the law.
The law classifies people in the name of religion and excludes Muslims from the process for grant of citizenship.
Another prominent example of targeted legislation is the Muslim Women (Protection of Rights on Marriage) Act (2019), which criminalised instant triple talaq.
Significantly, the act of instant triple talaq had been invalidated by the Supreme Court in Shayara Bano (2017) and, therefore, there was no legal requirement to ‘criminalise’ an act which was non est in the eye of law.
The statute only motivated the ‘clever’ husbands to resort to other means of divorce or to simply desert their wives, to get rid of the penal consequences.
Thus, the law, which was aimed against the Muslim community, evidently did not come to the rescue of Muslim women.
Often, it did the opposite. The enactment was however ‘successful’ in its divisive agenda.
Anti-conversion laws in certain States in the country also followed suit.
Precedents and Need for Proactive Judicial Review
There are Indian precedents where the Supreme Court has effectively interdicted operation of parliamentary legislations.
In Ashoka Kumar Thakur vs Union of India (2007), regarding the prescription of 27% quota for Other Backward Community (OBC) candidates to professional colleges, the Court initially issued a judicial injunction.
The Court’s order of stay in the case of the three contentious farm laws in Rakesh Vaishnav vs Union of India (2021) is another example.
The Court in that case effectively prevented the implementation of the farm laws which the Centre had to withdraw ultimately following farmers’ protest.
As regarding the statutes which are glaringly unconstitutional or divisive, the process of judicial review should be strong, immediate, and unambiguous.
The top court should be able to learn from its track record and understand the political consequences of its insensitivity during critical times.
Delay often defeats the purpose of constitutional adjudication.
Time is the essence of judicial review when it comes to malicious and unconstitutional laws.
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