Power Of Judicial Review Research Articles

SECURING THE RIGHT TO PRIVACY AGAINST THE STATE SURVEILLANCE

This research paper gives an overview on right to privacy as a fundamental and human right of every citizen and the important aspects are being covered subject to restrictions imposed by state. Privacy as a fundamental right has been upheld by the apex court of the nation and the activities of state which violates this essential and basic right needs to be considered by the judiciary under their power of judicial review and judicial activism Data in today’s society is used by the Big Tech companies to make millions of dollar and this trade of data undermines the basic right of citizens who do not want their nasty algorithm to affect the privacy of citizens. A number of cases has been heard by judiciary and the landmark judgments have provided for protection of right to privacy. Article 21 of Indian constitution has a very wide scope and the intent of the framers of the constitution when they framed this article was not to limit its applicability to life and liberty but also cover various other facets of it. This paper will further provide a comprehensive analysis on right to privacy in India.

Constitutional Chaos in Bangladesh: A Journey from Secularism to Islamism

Every modern state stands on the separation of state and religion. Bangladesh was born as a secular state with a full guarantee of the right to freedom of religion. Though it started its journey proclaiming itself as a secular state, some political actors in the later course of history pushed the country into an almost Islamic Republic. This paper attempts to figure out what motivated the political actors to begin Islamizing the state by illustrating the chaos that arose from the constitutional modifications in question. It also argues that the basic structure doctrine and the principles of ‘Lemon Test’ turn the laws in Bangladesh, desecularizing the state, unconstitutional. It unearths the religiousness and secularity that our forefathers practiced in their daily lives long before Islam established itself on this land. It further finds the Constitutional Court of Bangladesh as the last resort to have those black laws declared unconstitutional, applying its supreme judicial review power within the current frameworks and limits of the constitution in reference to the landmark decisions of the American, Indian, and Turkish Constitutional Courts.

JUDICIAL ACTIVISM IN INDIAN DEMOCRACY

Judicial Activism is a powerful weapon, which the judges have to wield to Sub serves the ends of justice by making the law responsive to the felt necessities of the changing times. The scope of judicial activism varies with the courts power of Judicial Review. The judicial activism is use of judicial power to articulate and enforce what is beneficial for the society in general and people at large. Supreme Court despite its constitutional Limitation has come up with flying colors as a champion of justice in the true sense of The word .JUSTICE…this seven letter word is one of the most debated one sin the entire English dictionary. With the entire world population being linked to it, there is no doubt about the fact that with changing tongues the definition does change. The judicial activism has touched almost every aspect of life in India to do positive justice and in the process has gone beyond, what is prescribed by law or written in black and white. This article covers definition, Theories of judicial activism, development of Judicial Activism in India, Judicial Activism in various periods.

How can constitutional review experiments fail? Lessons from the 1925 Chilean Constitution

Abstract Constitutional designers establishing a new judicial review mechanism can fail to make that mechanism a relevant instrument for checking the power of incumbent legislators or presidents. Judges may refuse to exercise their newly established powers, politicians may refuse to obey their rulings, or the judiciary may be packed, among other possible reasons. The causes can be attributed to the existence of a dominant party system, the lack of political competition, problems of institutional design, or judicial culture. This article contributes to the understanding of this problem by exploring the failed constitutional mechanism that Chilean constitutional designers established in 1925. The 1925 Chilean Constitution established the power of judicial review of legislation for the first time in Chile’s history, but the Supreme Court generally avoided to be involved in political battles. Chile had a competitive political system with frequent and regular rotation in power. The literature claims that, under these conditions, we should expect judges to be more independent and empowered, but this is not what happened in the Chilean case. Scholars studying this period of Chilean constitutional history generally associate the passivity of the Supreme Court with a legalistic culture promoting an apolitical and formalistic judicial behavior. This article claims that the narrative of judicial apoliticism served to justify, and perhaps to persuade, the Supreme Court’s choice not to intervene in politics, but more attention needs to be given to the institutional weaknesses of the judiciary of that time and to the possible strategic judicial choice.

Constitutional Guardianship in Kenya’s Bicameral Legislature

The Constitution of Kenya of 2010 adopts a bicameral legislative structure, within a devolved system of governance, consisting of the National Assembly and the Senate. In keeping with the devolved structure of government, the Senate’s legislative mandate is to a large extent confined to considering, debating and approving Bills concerning counties as well as determining the allocation of national revenue among counties and providing oversight over the national revenue allocated to the 47 county governments. Over the last ten years, Kenya has witnessed a great consolidation of power by the National Assembly at the expense of the Senate especially with regards to the roles of the chambers over the process of enacting the Division of Revenue Bill. Such consolidation of power attempts to relegate the Senate to a peripheral role within the bicameral legislative institutional structure. Consequently, the Supreme Court has asserted its advisory power and the High Court its judicial review power to mete out this inter-institutional conflict between the National Assembly and the Senate. This paper interrogates the manner Kenyan courts have discharged the contested role of serving as guardians of a legislative institution in a conflict within the bicameral legislative system. It makes the point that while courts have the authority to intervene in inter-cameral conflicts, judicial intervention should be exercised as an option of last resort, only utilised after exhaustion of the constitutionally ordained intra-parliament mediation process.

Legal Doctrine and Judicial Review of Eminent Domain in China

Which of the three legal doctrines of public use, just compensation, and due process is the most effective in constraining abuses of eminent domain power? This article addresses this question for the first time and presents the first-ever systematic investigation of the judicial review of eminent domain in China. Our empirical study reveals that Chinese courts focus on eminent domain procedures while rarely supporting claims based on public interest or just compensation. Procedural rules are determinate and therefore easier to enforce than substantial standards of public interest and just compensation. Chinese courts also choose to focus on eminent domain procedures to confine their own judicial review power for the purpose of self-preservation in an authoritarian state that empowers the courts to monitor and control local governments but does not want them to become too powerful. The study calls for a “due process revolution” in eminent domain law and introduces the “judicial politics of legal doctrine” approach to the study of Chinese law, an approach that takes both political institutions and legal doctrines seriously.

Judicial Review: Comparative Study in India and USA

Like the American Supreme Court, the Supreme Court of India enjoys the power of judicial review and this power has been specifically recognized by the constitution. However, we see that its authority in relation to 'judicial review' of legislation is more restricted than that of the American Supreme Court.

Power of Judicial Review: A Yardstick to keep the Tribunals within their Boundaries

Judicial Review is a power of the judiciary, which protects our constitutional norms and legal framework. Judicial Review ensures the legal fraternity of society. The power of Judicial review deals with the theory of check and balance. The judiciary has been using the power for maintaining law and order in society. At present tribunals are playing a supplemental role in the justice delivery system, the judicial review is important for regulating the tribunals. The research article focuses on the power of judicial review over the working of tribunals. The paper analyses how the judiciary fixes the limitations over the working of tribunals and all quasi-judicial bodies and also focuses on the fact that judicial review is not anti of Tribunalisation it is protector of the tribunal system and judiciary playing an important role of development in tribunalisation.

Legal Doctrine and Judicial Review of Eminent Domain in China

Which of the three legal doctrines of public use, just compensation, and due process is the most effective in constraining abuses of eminent domain power? This paper addresses this question for the first time and presents the first-ever systematic investigation of the judicial review of eminent domain in China. Our empirical study reveals that Chinese courts focus on eminent domain procedures while rarely supporting claims based on public interest or just compensation. Procedural rules are determinate and therefore easier to enforce than substantial standards of public interest and just compensation. Chinese courts also choose to focus on eminent domain procedures to confine their own judicial review power for the purpose of self-preservation in an authoritarian state that empowers the courts to monitor and control local governments but does not want them to become too powerful. The study calls for a “due process revolution” in eminent domain law and introduces the “judicial politics of legal doctrine” approach to the study of Chinese law, an approach that takes both political institutions and legal doctrines seriously.

Evolution and Exercise of the Power of Judicial Review of Executive Actions in Pakistan

In the modern democracies the protection of fundamental rights has gained immense importance. The fundamental rights are guaranteed by the constitutions of democratic states. The courts are empowered through the power of judicial review to protect fundamental rights against any violations of these. The concept of judicial review of executive actions emerged from the concept that the powerful executive can jeopardize the rights of the people for their political interests and there should be an independent forum to check the abuses of the human rights by the executive. In the modern era the power of judicial review has proceeded one step further as, in addition to the violation of fundamental rights, it has started examining the issues of good governance and disputes between state organs. Pakistan inherited the idea of judicial review of executive actions from the supervisory jurisdiction of English Courts to issue prerogative writs. Subsequently, Pakistan specifically incorporated the judicial review powers in the 1962 Constitution. The provincial high courts and the Supreme Court are entrusted with the power of judicial review; however, the Supreme Court can adjudicate upon matters of fundamental rights if they involve public importance. This research work examines the importance of judicial review of executive actions for the protections of fundamental rights. Then the evolution and exercise of judicial review of executive actions by the higher courts in Pakistan is analysed. This study finds that the superior courts in Pakistan have actively used this power to protect fundamental rights but in their drive to protect fundamental rights sometimes they have encroached into the jurisdiction of the other state institutions.

Judicial Review in Kenya: The Ambivalent Legacy of English Law

This Chapter considers the evolutions in the practice of judicial review in Kenya, and the continued relevance of English law, in the broader context of the role of judicial review in facilitating the attainment of democratic governance. It argues that English law bequeathed to Kenya an ambivalent legacy that continues to shape the exercise of the judicial review power. In theory, law has promised to provide a bulwark against the abuse of governmental power. In practice, however, it has largely served to facilitate authoritarianism. The Chapter begins by locating judicial review in the context of governance in colonial and post-colonial Kenya. It then examines the nature and role of judicial review in the Kenya colony, Independent Kenya, and more recently after the promulgation of the Constitution of Kenya 2010.

Do Civil Courts (In Pakistan) Have Power of Judicial Review?

This paper attempts to highlight that power of judicial review is not limited to superior constitutional courts in Pakistan. Civil Courts have effective power of judicial review of administrative and legislative actions/acts. Acquaintance with this power can give poor litigants a cost effective remedy at local level. Nature of the power and grounds of action for judicial review before civil courts are stated.

The State of Judicial Review in 1973 Constitution of Pakistancc

The aim of this paper is to highlight the power of judicial review in the 1973 constitution of Pakistan. The three organ of the government the executive, judiciary and legislature are working in such a way that each organ is functioning in its sphere. The functions and activities may not be disturbed by each other. There is a mechanism in the 1973 constitution of Pakistan of judicial review. In this way the judiciary has some check on the other branches of the government. Under the 1973 constitution, the judiciary has certain powers to control the executive and legislative branches of the government. In this way judiciary is playing a key role in Pakistan. The paper is an attempt to highlight the process of judicial review in the 1973 constitution of Pakistan and its role in constitutional history in Pakistan.

Japan: An Overview of Constitution & Judicial System

Japan was the first country in Asia to have a written constitution in late nineteenth century. The Japanese constitution is the oldest unamended constitution in the world. In 2020, Japan ranked 15th in the World Justice Project's Rule of Law Index, a middling among G7 countries. It has not had any amendments to its text in more than 70 years. It is a short constitution with only 5000 words, compared to the average constitution with 21,000 words. At the highest of the Japanese legal system is the current Constitution of Japan. Promulgated on November 3, 1946, it entered into force on May 3, 1947. The progressive constitution granted universal suffrage, stripped Emperor Hirohito of all but symbolic power, stipulated a bill of rights, abolished peerage, and outlawed Japan’s right to make war. The necessity and practical extent of Article 9 has been debated in Japan since its enactment, particularly following the establishment of the Japan Self-Defense Forces (JSDF), a de facto post-war Japanese military force that substitutes for the pre-war Armed Forces, since 1 July 1954. Some lower courts have found the JSDF unconstitutional, but the Supreme Court never ruled on this issue.Three Articles are particularly important with regard to the juridical system: the Article on legislative power provides for the Diet as the sole law-making organ of the State; the Article on executive power provides that this authority is vested in the Cabinet; and the Article on judicial power provides that the whole of judicial power is vested in the Supreme Court and in such lower courts as are established by law. Taken together, these constitutional provisions create a governmental structure in Japan that is based on the separation of powers, and provide for checks and balances among the three organs of the State. There are five types of courts in Japan: The Supreme Court, High Courts, District Courts, Family Courts and Summary Courts. Japan adopts a three tiered judicial system and a summary, family, or district court will be the court of first instance depending on the nature of the matter. The Supreme Court is the highest court in the land and has been furnished with the power of judicial review.

The Ouster of Parliamentary Sovereignty?

In R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22; [2019] 2 WLR 1219, the claimant sought judicial review of a decision of the Investigatory Powers Tribunal (IPT) on the ground that the IPT had committed an error of law. But there was a preliminary stumbling block in the form of s 67(8) of the Regulation of Investigatory Powers Act 2000. By a majority, the Supreme Court held that this provision did not oust the power of judicial review of the IPT’s decisions on the ground of error of law. This note makes two points. First, the majority’s conclusion was right and the minority’s was not. Secondly, the decision of one of the majority judges, Lord Carnwath (with whom Lady Hale and Lord Kerr agreed), made several revolutionary remarks about ouster clauses generally that have attenuated the principle of parliamentary sovereignty.

The Court Is Not Your Friend

The Court Is Not Your Friend Samuel Moyn (bio) It has been over a year since Brett Kavanaugh took his seat on the Supreme Court. More evidence of his assault of Christine Blasey Ford, though by no means conclusive, has been presented in the first of several slated books about the newest oracle of the law and the pitched battle around his confirmation. Yet such attention to any justice, and his ideology or indiscretions, risks missing the point: that it is only because the Supreme Court is so powerful that the national obsession with either a judge's character or views can become so intense. Whatever else it involves, juristocracy is also a form of politics by other means. And it is not one that progressives should want. Yet in the past half century they have been principally responsible for it. From its late nineteenth-century conservative beginnings to the mid-twentieth-century liberal attempt to make it their own, juristocracy has been a triple failure of authority, process, and substance. It has been a disaster for the democratic premise that the people themselves choose their own arrangements, shunting decision-making to a council of elders supposedly possessed of unique wisdom. And in exchange for its antidemocratic premises, juristocracy has not delivered the goods that popular interests and needs require. Only democratic politics can. We will always have judges. Any interpretation of law is a form of rule, and there is no way—contrary to what many of the founders believed—of disentangling "judgment" and "will." It is for that reason that democrats from Jeremy Bentham (or even Thomas Hobbes before him) through our time have attacked interpretations of judicial power that conceal the ideological choices that saying "what the law is" inevitably involves. No wonder, then, that democratic theorists have long insisted on restraining judges, even while acknowledging that their activity necessarily involves some interpretive freedom to use and abuse. There are disputes to settle under rules, laws to apply to new fact patterns, and overreaching executives to contain. But juristocracy is a congenitally American malady. Turning to judges as secret agents of political transformation is quite another matter. When [End Page 70] Click for larger view View full resolution The Supreme Court Justices in 2018 (Jabin Botsford/The Washington Post via Getty Images) the U.S. Constitution first became attractive in the late nineteenth century, it was among conservatives facing the frightening prospect of mass suffrage and finding in James Madison's handiwork a device for potentially weathering the coming tempest. Englishman Sir Henry James Sumner Maine, to take one example, sang the praises of the U.S. Constitution as "the most important political instrument of modern times" in his Popular Government (1885), for it "proved" the existence of "several expedients" that would allow the "difficulties" besetting any country "transforming itself" into a democracy to be "greatly mitigated" or "altogether overcome." Unsurprisingly, the powers of the U.S. Supreme Court ranked high on the list of such "expedients." American constitutional practice in this era reflected these antidemocratic virtues. American conservatives retrieved from obscurity the case of Marbury v. Madison (1803), which according to myth proclaimed the power of judicial review of legislation under the Constitution (though in reality it did no such thing). Judges suddenly began invalidating more statutes, throwing out progressive legislation at both federal and state levels. It took the strife of the Great Depression, and fear of Franklin Roosevelt, to cow the institution into getting with the progressive program. Political scientists who have studied the conditions for the exercise of judicial power have claimed it generally follows the democratic will. But no [End Page 71] one should minimize the energy and time it can take for judiciaries to catch up to majorities. As a triumphant FDR observed in 1937, "Ultimately the people and the Congress have had their way. But that word 'ultimately' covers a terrible cost." Within the span of two decades, unfortunately, progressives had embraced a judiciary they once scorned. Fears of a conservative minority imposing itself on democratic legislatures gave way, during the Second World War, to concerns about a tyrannical majority overriding civil liberties. Lost were liberal convictions that the tyranny...

The Anti-Carolene Court

Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v Common Cause to argue that the current Court flips Carolene on its head. It both fails to act when the political process is malfunctioning and intercedes to block other actors from ameliorating American democracy. Rucho is the quintessential example of judicial apathy when, under Carolene, judicial engagement was sorely needed. The Court acknowledged that partisan gerrymandering offends democratic values like majoritarianism, responsiveness, and participation. But the Court didn’t take the obvious next step under Carolene and hold that extreme gerrymanders are unlawful. Instead it went in exactly the opposite direction, announcing that partisan gerrymandering claims are categorically nonjusticiable. Rucho, however, is only the tip of the current Court’s anti-Carolene spear. Past cases have compounded (and future cases will likely exacerbate) the democratic damage by preventing non-judicial institutions from addressing defects in the political process. Looking back, the Court’s campaign finance decisions have struck down regulation after regulation aimed at curbing the harms of money in politics. Looking forward, the Court may well nullify the main non-judicial response to gerrymandering: independent redistricting commissions adopted through voter initiatives. What can possibly explain this doctrinal pattern? Conventional modes of analysis — originalism, judicial restraint, respect for precedent, and so on — all fail as justifications. They’re riddled by too many exceptions to be persuasive. What does seem to run like a red thread through the current Court’s rulings, though, is partisanship. The anti-Carolene Court may spurn pro-democratic judicial review in part because, at this historical juncture, it often happens to be pro-Democratic.

Scope of Article 226 of the Constitution of India, 1950: 20 Recent Judgments

Judicial review under Article 226 of the Constitution of India, 1950 is directed, not against the decision, but the decision-making process. Administrative decisions are subject to judicial review under Article 226 of the Constitution of India, 1950, only on grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. Except on these grounds administrative decisions cannot be interfered with, in exercise of the extraordinary power of judicial review. A decision is vitiated by irrationality if the decision is so outrageous, that it is in defiance of all logic; when no person acting reasonably could possibly have taken the decision, having regard to the materials on record. A decision may sometimes be set aside and quashed under Article 226 of the Constitution of India, 1950 on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise. Judicial review under Article 226 of the Constitution of India, 1950 is directed, not against the decision, but the decision-making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision-making process.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

The Global Rise of Judicial Review Since 1945

This article discusses the global rise of judicial review of the constitutionality of legislation since 1945. It builds on Yale Law Professor Bruce Ackerman’s new book on The Rise of World Constitutionalism, Volume I (2018), which argues that there has been a global rise of written constitutions since 1945. I argue here that global written constitutions were plentiful between 1789 and 1945, but that all of those written constitutions outside of the United States, Canada, and Australia failed because none of them provided for judicial review of the constitutionality of legislation. Since 1945, all of the G-20 constitutional democracies have written constitutions with real system of checks and balances that are enforceable by courts against the national legislature using the power of judicial review. This post-1945 development marks a revolution in global constitutional law, which no-one has previously identified or discussed. I document the rise of checks and balances and of judicial review since 1945 both in the countries Professor Ackerman discusses in his new book and in the G-20 constitutional democracies, which Professor Ackerman does not discuss.