How do various judicial systems handle the process of judicial review, and what impact does this process have on the balance of power among the branches of government?
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The judiciary plays important role in Indian democracy and acts as the guardian of the Constitution. It is also entrusted with the responsibility of upholding the rule of law. It protects our fundamental rights and enables citizens to have recourse against the other branches of Government – the execRead more
The judiciary plays important role in Indian democracy and acts as the guardian of the Constitution. It is also entrusted with the responsibility of upholding the rule of law. It protects our fundamental rights and enables citizens to have recourse against the other branches of Government – the executive and legislative – through judicial review. Without this balance, one organ would reign supreme.
Independence is essential for a judiciary to function effectively. Judges are appointed through a transparent process and cannot be easily swayed by political expediencies. Our apex court has given many landmark decisions including in Kesavanand Bharati’s case that reiterated that some parts of the Constitution are beyond Parliament’s jurisdiction to amend.
Moreover access to justice has been widened through Public Interest Litigation. Under PIL even an ordinary citizen can approach the court on matters of public question and seek justice. This has brought in democratisation of legal process whereby voiceless people could also have access to courts, so too by the marginalised.
However, there are serious challenges which have emerged recently and which could be seen as undermining efficiency of judiciary as these relates to very concerns about delays but they direly affect possibility of timely justice.
Yet, there are some very serious challenges that have surfaced in recent past and which if looked at actually do reduce efficiency of judiciary when matters relating to the said delay itself but then these do drastically reduce even the probability of timely justice.
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Consequently, judicial review is the authority of the judiciary to declare statutes or the execution of law and policy by the executive to be unconstitutional. While it encourages checks and balances among the three branches of government it varies in implementation. In the United States, the powerRead more
Consequently, judicial review is the authority of the judiciary to declare statutes or the execution of law and policy by the executive to be unconstitutional. While it encourages checks and balances among the three branches of government it varies in implementation.
In the United States, the power judicial review, recognized in * the case of Marbury v. Judicial review (Marbury v. Madison* 1803) has placed the judiciary in a very strong position check on the legislative and executive branches. India’s courts are in the same analogous legal position with ability, the “basic structure doctrine,” to warrant this change as well as guard constitutional legitimacy while simultaneously restraining the legislative branch’s amendment-making capacities. Here, the judicial review of the UK focuses on the procedural regularity of administrative decisions because parliamentary supremacy eliminates the possibility of the declaring primary legislation unconstitutional.
Germany and other civil law nations employ constitutional courts to handle such pure constitutional claims, while the ECJ ensures compliance of its member’s laws with the treaty establishing the union. These systems show various levels and approaches of judicial control.
The control of judicial review regrettably hampering the balance of power. Its effect has been to strengthen the call for accountability and rights but has been blamed for judicial encroachment into the domain of policy formulation – undue judicial interference. In this respect, acting as a guardian of the constitution, judicial review improves governance, while the issues arising out of concerns related to the judiciary in the democratic systems are agitating. It will remain basic in support of the rule of law which facilitates a balance power that can function properly.
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