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Constitutional Law | Aug. 1, 2024

The Role of Judicial review in Modern governance.

The Role of Judicial review in Modern governance. 

Abstract 

The article discusses on the role of judicial review in India as a key mechanism for ensuring modern and good governance. Judicial review, which is derived from the U.S. Constitution and enshrined in Section 13 of the Indian Constitution, allows courts to review legislative actions and nullify those that violate constitutional principles or fundamental rights. This power reinforces the judiciary’s role as a guardian of the Constitution, ensuring checks and balances, preventing abuse of power, and safeguarding individual and minority rights.

Modern governance is characterized by the use of updated technologies and methods to achieve better outcomes and efficiency. Good governance is seen as a model for sustainable performance and stakeholder engagement, drawing comparisons between successful liberal-democratic states and less effective economies. Reforming the state, private sector, and civil society is essential for promoting good governance, with judicial review serving as a critical tool for maintaining constitutional authority and federal balance as a result, ultimately, judicial review is depicted as vital for accountability and transparency, contributing to a governance system that is modern, inclusive, and effective in meeting the needs of its citizens.

         1. Introduction

Judicial review is something that our judicial authorities have the power to issue. Its given under Sec 13 of the Constitution of India, where it says that if any law  that is being made by the legislature can be reviewed , and if the judiciary finds it unlawful or breach in FR of citizens, then the can make that law null and void. It’s the discretion power of the judiciary. Its being taken from the US constitution.

Modern governance is also be said as good governance, which can be achieved with modern tools. By using of new updated technologies and methods , the governing bodies can gain deeper insights and can upgrade new processes that can deliver better governance and better results as a whole. 

Therefore when there is a chance of reviewing the government, there law makings, there enactment etc., then automatically it leads in developing the countries governance and making it a good and modern governance.

2. Evolution of modern governance 

It Is the evolution of leadership, the operational practices to drive sustainable performance , stake holders engagement, investors confidence etc.

The concept of "good governance” thus emerges as a model to compare ineffective economies or political bodies with viable economies and political bodies. The concept on the responsibility of governments and governing bodies to meet the needs of the masses as opposed to select groups in society. Because countries often described as “most successful” are liberal-democratic states, concentrated in Europe and the Americas, good governance standards often measure other state institutions against these states.

To promote good governance, reforms can be implemented in three key areas: the state, the private sector, and civil society. Here, the need and demand for reform can differ by different cultures, reflecting each country’s social priorities and Various national initiatives and international movements focus on different aspects of governance reforms and  with each movement setting its own criteria for what constitutes good governance which is based on its specific needs and objectives.

3. Exercise of Judicial Review.

India was founded as a democratic welfare State which would Allow equal opportunity to everyone irrespective of caste, colour, sex or any other form of discrimination; a State where everyone would have equal opportunity for personal growth and for contributing to the cause of nation. India was established as a democratic welfare state with the goal of providing equal opportunities to all individuals, regardless of caste, creed, sex, or any other form of discrimination. The vision was to create a society where every person could pursue personal growth and contribute to the nation’s development without facing any barriers. 

The Indian judiciary holds a crucial position within the country’s governance framework, serving as the guardian and custodian of the Constitution. This role grants the judiciary the responsibility of ensuring that the fundamental rights enshrined in the Constitution are upheld and protected. It acts as a vigilant watchdog, safeguarding individuals—both citizens and non-citizens—against discrimination, misuse of state power, and arbitrary actions by the government. By fulfilling this role, the judiciary not only maintains the rule of law but also reinforces the principles of justice and equality that are central to India’s democratic ethos.

The judicial system has an important role to play ultimately in ensuring better public governance. There may be a plethora of Regulations, rules and procedures but when disputes arise, they have to be settled in a court of law. There is no area where the judgments of Supreme Court have not played a significant contribution in the modern governance, whether it be environment, human rights, gender justice, education, minorities, police reforms, elections and limits on constituent powers of Parliament to amend the Constitution.

Therefore when there is a chance of reviewing the government, there law makings, there enactment etc., then automatically it leads in developing the countries governance, though all the citizens will be having the right to get to know about there government, and leading in its efficiency, and that finally leads to a good and modern governance.

Its benefits in Modern governance 

 1.Ensures Constitutional Authority :  Judicial review emphasizes that the .Constitution is the highest law of the land, requiring all laws and government actions to align with its principles and values.

  2. Maintains Checks and Balances  Through judicial review, courts act as a restraint on the powers of the legislative and executive branches, helping to maintain a balance of power and preventing any single branch from gaining excessive control or misusing its authority.

3. Prevents Power Abuse : Judicial review serves to prevent the legislature and executive from misusing their powers, thereby reducing the risk of government tyranny.

4. Safeguards Individual Rights : by providing protection against government actions that violate constitutional rights and liberties, judicial review acts as a shield for individuals’ freedoms.

5. Secures Judicial Independence :  By preventing the executive and legislative branches from encroaching on judicial authority, judicial review helps preserve the independence of the judiciary.

6. Preserves Federal Equilibrium : Judicial review resolves disputes regarding the division of powers between the national and state governments, ensuring that the federal structure remains balanced.

7. Protects Minority Rights : Judicial review acts as a defence against the majority’s potential oppression by safeguarding minority groups from laws that are oppressive or discriminatory toward marginalized communities.

Judicial review is an outgrowth of efforts to limit the scope of power held by those authorized to interpret both sacred and secular texts. Societies, particularly (but not exclusively) those with complex governing structures, have created systems of law that constrain or influence official and social behaviour through expressed codes or instructions. These, in turn, are overseen by special, trained officials. The fear that written laws and those empowered to enforce them will subvert the basic structures and values of a society form a prominent chapter in the history of self-government. Enabling government while protecting against its abuses is both an age-old and a universal concern.

Judicial review is the institutional capacity of courts of law to determine the constitutional validity of actions taken by either coordinate or inferior branches of government. It is an outgrowth of efforts to limit the powers of those authorized to interpret both sacred and secular texts, and to ensure that laws, and the acts of those empowered to enforce them, will be consistent with the basic values of a society and its basic governing structures.

Balancing governmental authority with its need to prevent its misuse has been a challenge for constitutional democracies. In this contemporary democracy,  judicial review introduces another challenge, i.e. justifying constraints on majority rule. This tension between democracy and the rule of law is often called the “counter-majoritarian difficulty” in the American context. (as its been developed from US constitution). As judicial review and constitutional principles have spread globally, and with the emergence of supranational courts, finding a legitimate balance that honour’s both democratic principles and individual rights, which now has become a global endeavour for all humans and citizens living.

5. Landmark Judgement of Judicial review in India and its effects.

Indian judicial history is rich with landmark cases where judicial review has been crucial. In cases like ‘Shankari Prasad v. Union of India,’ where the Parliament’s amendment power was affirmed, and the ground-breaking ‘Kesavananda Bharati v. State of Kerala,’ which introduced the ‘Basic Structure’ doctrine, the transformative impact of judicial review is evident.

Over the years, the Indian judiciary has used its power of judicial review in numerous landmark cases which made great changes in the modern governance by invalidating laws that violated the Constitution, such as Golaknath v. State of Punjab (1967), where the Supreme Court held that the Parliament did not have the power to amend the Fundamental Rights enshrined in the Constitution. This decision was later overturned by the 24^th Amendment to the Constitution, which allowed the Parliament to amend any part of the Constitution, including the Fundamental Rights. And also in cases like Maneka Gandhi v. Union of India (1978) where the Supreme Court held that the right to travel abroad was a part of the right to personal liberty under Article 21 of the Constitution. This decision expands the scope of the right to personal liberty and protected it from arbitrary restrictions by the government.

Therefore, these are some of the cases where it can be said that the doctrine of judicial review and made many changes in the exercising of government, where they cannot do anything illegal or anything without knowing to the citizens and leads in uplifting the good governance of Indian and making it to modern governance.

6. Conclusion 

Therefore, concept and benefits of judicial review in India, emphasizing its role in promoting modern governance and good governance. Judicial review, derived from the U.S. Constitution, empowers Indian courts to review laws and government actions for their constitutionality. It acts as a check on legislative and executive powers, ensuring they do not violate the fundamental rights of citizens. The judicial system is portrayed as a guardian of the Constitution, playing a crucial role in safeguarding individual rights, preventing power abuse, and maintaining checks and balances.

The text highlights that modern governance can be enhanced through updated technologies and methods, leading to more efficient and effective government processes. Good governance is described as a model that promotes sustainable performance, stakeholder engagement, and investor confidence, comparing successful liberal-democratic states with less effective economies.

Reforming the state, private sector, and civil society is seen as essential to achieving good governance, with varying needs and demands across cultures. Judicial review ensures constitutional authority, prevents government tyranny, and protects minority rights, contributing to a balanced federal structure and independent judiciary. Ultimately, the exercise of judicial review is depicted as a vital mechanism for ensuring accountability, transparency, and the development of a modern, inclusive, and effective governance system.

Reference : 

• Jesse Merriam, Joel B. Grossman, in International Encyclopaedia of the Social & Behavioural Sciences (Second Edition), 2015

• Justice Y.K Sabharwal, Role of Judiciary in good governance 

• J.B. Grossman, in International Encyclopaedia of the Social & Behavioural Sciences, 2001

• Shapiro, Martin, ‘The Success of Judicial Review and Democracy’, On Law, Politics, and Judicialization (Oxford, 2002; online edn, Oxford Academic, 1 Nov. 2003), https://doi.org/10.1093/0199256489.003.0005

• https://www.sciencedirect.com/topics/social-sciences/judicial-review