What is Judicial Review? Discuss the nature and scope of Judicial Review. How is it different from an appeal?

Question: What is Judicial Review? Discuss the nature and scope of Judicial Review. How is it different from an appeal? [BJS 2018]

Find the answer to the mains question only on Legal Bites.[What is Judicial Review? Discuss the nature and scope of Judicial Review. How is it different from an appeal?

Answer

Judicial review is in a sense, the very life-breath of the Constitution of a vibrant, working constitutional democracy. It is that which provides sinews for enforcement of rights, protection of liberty, and upholding the rule of law. Judicial review is the exercise of power by superior courts to test the legality of any governmental/ State action. It is the exertion of the Court’s inherent power to determine whether an action is lawful or not and to grant appropriate relief. It is a fundamental mechanism for keeping public authorities within due bounds and for upholding the rule of law.

Nature and Scope of Judicial Review

Judicial review which has its foundations essentially in Common Law is, in India, enshrined in the Constitution- Article 13 read with Articles 32,226,227 expressly confer that power. It has been mentioned in the constitution with the aim to provide that no power- whether statutory or under the prerogative will be unreviewable. Courts in India are charged with the responsibility of adjudicating upon the manner of the exercise of public power, its scope, and its substance. Even when discretionary powers are engaged they are not immune from judicial review.

However, it is crucial to note that the Indian Constitution is the supreme law from which all organs derive their authority and within whose confines they have to act. It is for the Court only to uphold constitutional values and enforce constitutional limitations, exercising their power of Judicial Review. Judicial review does not mean the supremacy of the judiciary but that of the Constitution. The range, intensity standards, and tests of judicial review may vary from actions to actions of the concerned authority in question. In essence, it is used only to test the legality and keep public authorities within the limits of their power- lawful or unlawful, without examination of merits.

Difference between Judicial Review and Appeal

The difference between judicial review and appeal is one of kind. An appeal is a creature of the statute- the appellate power being circumscribed by the statutory provisions conferring the power.

Where a question arises as to the scope of appellate jurisdiction, the statute by which the jurisdiction is conferred must ordinarily be the Court’s first port of call; and will very often be the last. In exercising appellate power Court concerned with the merits- whether right or wrong, the court independently examines the matter and comes to its conclusion often times substituting its views for those of the court appealed from.

While Judicial review generally is an objective assessment where the court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision. Therefore, judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.

In Chief Constable of the North Wales Police v. Evans Lord Brightman said: Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.

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