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.
Examples of statutes which hold constitutional power include The Magna Carta 1215, The Bill of Rights 1689, The Act of Settlement 1700, The European Communities Act 1972, The Human Rights Act 1997 and The Constitutional Reform Act 2005; to name just a few. Similarly, both judicial decisions and royal prerogatives, i.e. Crown’s residuary power; which hold constitutional importance, form part of this unwritten constitution. Conventions, on the other hand, are “unwritten maxims” of constitutional significance; described by Marshall and Moodie as “… rules of constitutional behavior which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts … nor by the presiding officers in the Houses of
Constitution is necessary for the coordinating of a state as it involves the fundamental rules and regulations in which a state exists . However the Britain constitution involves a written foundation such as the statutes. It is one of the few that is not written down in a single document . As an idea by Blick, it is due to the absence of a serious moment in the history, such as a revolution or an independence that has made Britain transformed the constitution to the level codifying it. However, two of the most important regulations of the Britain constitution are known because it is much based on Parliamentary Supremacy (means that Parliament can, if it chooses, legislate contrary to the fundamental principles of human rights) and the division of powers (meaning that Parliament, as opposed to a written constitution, it is the highest source of law in the United kingdom and that the executive, the legislature and the judiciary powers would be divided among themselves.
Based on A.V Dicey’s theory on parliamentary sovereignty, one of the main features of the legislative organs of the country has unlimited law making power. This means that the legislature or the parliament may enact law or amend them without subject, period and location limit. This is because the legislature is not an entity created by the constitution. Thus, the power of the legislature is not subject to any limitations. In the case of Mortensen v Peters , it illustrated that the sovereignty of parliament is unlimited geographically.
Parliament is equipped to make any law subject to the functioning of the Constitution and there is no other legislative power. The Judiciary is free in its field and there can be no impedance with its legal capacities either by the Executive or by the Legislature. The Supreme Court and High Courts are given the force of judicial review and they can announce any law went by the Parliament or the Legislature as unlawful. Considering these variables, many legal thinkers and scholars have accepted the fact that Separation of Powers has been acknowledged in the Indian Constitution
It is precise, definite and systematic. It is rigid in nature and a procedure separate from that of enacting ordinary law is been provided for its amendment or revision. A written constitution also known as a codified constitution. It is framed by a representative body duly elected by the people at a particular period. Examples of countries with a written constitution are USA, France, India etc.
For example, the Terrorism Act 2006, which changed the maximum duration that someone could be detained for without being charged to 28 days, can be see not take precedence over the rule of law by undermining it. Furthermore due to the UK not having a written constitution, there is no document that can tell us what powers government has or, more importantly, doesn't have, and no UK judgement specifically discredits the idea of parliamentary sovereignty. One must also consider that Parliament has influence over the rue of law. Even though the rule of law means to establish clarity of what is and isn't allowed in the eyes of the law, Parliament can pass new legislation to alter this, and hence influence the rule of law. An example of this is the Criminal Evidence (Witness Anonymity) Act 2008 which nullified the defendants right to know the identity of his witness by replacing it with a regime where witness anonymity orders could be used if circumstances allowed or required them to be
Judicial Tyranny is interpreted by the judiciary and such it can be the case that judge can legislate from the bench. , Another significant disadvantage, the parliamentary sovereignty would be effectively abolished. The principle of parliamentary sovereignty states that parliament can make or unmake or even amend any law it wishes. United Kingdom will lose a massive privilege if someday decide to codified it constitution. Last but not least, a codified constitution would give the judiciary a political point of view witch it will require from the ultimately supreme court to form judgements of issues with political nature that should be dealt by the politicians them
Many of the court’s decisions were controversial, and critics have charged that justices/ judges have written their own values into the constitution. There are several restrictions on the exercise of judicial review courts may strike down unconstitutional laws only when cases are brought to them. In the absence of a case, judges may not issue advisory opinion – that is, they may not say what they think a constitutional rule means or whether a law is invalid, moreover not every case presents the possibility of judicial review. The parties seeking review must have “standing”- that is, they must be the ones actually affected by the law in question. Also, the dispute must be “ripe” – a person may not ask a court to void a law if it has not yet been applied to that person.
CHAPTER 4 : JUDICIAL REVIEW 4.1. MEANING Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary.It is Examination by a country's courts of the actions of the legislative, executive, and administrative branches of government to ensure that those actions conform to the provisions of the constitution. In other words it is the control of two branches of the government (i.e. the Executive and the legislature) by the third branch (i.e. the Judiciary) only to the extant that their actions are in conformity with and not in violation of the constitution.