The Judicial review of Administrative Modifications Between India and South Africa

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Introduction?

The name judicial review wanders about the process of taking care of the decisions taken by the administrative functions of the society in a fair, just, and legal way. It refers to the necessity needed for building the advancement to protect the rights and liberty of the citizens. The potential of the judicial review is with the high court and the supreme court. The concept of judicial review has been stated under article 13, in fundamental part III, where the union or the state government doesn’t have any right to set the rules and regulations that can take away any crucial rights of the citizens of the country.

It also refers to the decision made by the judge, wherein he checks the reliability of the administrative laws stated in the court proceedings, and the action is viewed by the judge. The judicial review is considered the most important part of the court of law because it keeps the checks and balances that whether the laws are applied clearly or not. (Qwerty9729, 2009)

History of Judicial Review?

The doctrine of judicial review was being introduced in the USA against political issues. In this, the legal examination was done by the chief justice of the USA supreme court, Marshall. Thereby, it was Introduced concerning the famous case of the Marbury VS Madison case of 1803. In this, Marshall elaborated on the fact that the laws made are should be in keeping the consideration of the constitution and any law that is binding on the constitution will be considered void. The essentiality of the judicial review is to keep the eye on all the organs of the constitution and to ensure that they are working in the right manner and with the utmost sincerity.

Importance of Judicial Review?

The judicial review has been evolved because it was observed over the period that some law was needed to protect the fundamental rights of the citizens as mentioned in part III of the Indian constitution. Also, to keep and maintain the checks and balances of the collective engrossment. Even, to take the excessive authority from the organization, because they have wrongly used their decision-making power. It also elaborates on the fact that when there is an allegation between the constitution of the country and the laws, the respective authorities are ought to bend over the constitution of the country because it’s the supreme authority of the country. Hence, the supreme authorities who are aware of this keep the powerful organs of the country inside the constitution only. The most important significance of the judicial review is to make sure that every person is guaranteed all the powers of the constitution and keeps the hopes high of every individual. (Picess, 2018)

Judicial Framework

This judicial framework can be divided into the two frameworks of the country:?

The civil system and the criminal law system. Therefore, the rules and regulations can be defined in terms of the legislative authority and separation of powers. For example, India elaborates on the separation of powers whereas South Africa elaborates on the concept of constitutional supremacy same as the USA.?

Article 13?

1. The laws mentioned in article 13 of the constitution are in disagreement with the fundamental rights that are considered void by the Indian Constitution.?
2. Thereby, the union or the state cannot make any rules or laws which are against the statutory provisions of the country. Such laws created will be considered inconsistent concerning the constitution.
3. All the rules and laws mentioned under this article cannot accept any amendment made under article 368, right to equality of the constitution.

Judicial Review in India?

In the era of Britishers, this concept of judicial review was firstly initiated by the parliament of the country in 1858. Since judicial review and the fundamental rights go hand in hand thereby, judicial review was considered the most important part of the Indian Constitution. The authoritative view of the constitution has been defined under the constitution of the country in article 245, which states that the laws should be based on the statutory provisions of the country. India follows the separation of powers as the judicial framework. Thereby, here keeping the check of the infringement of the rights of the citizens is given major importance. Consequently, the term judicial review hasn’t been used as a reference in the Indian Constitution. In this way, the judicial review will only be used in cases when there is a violation of the basic fundamental rights, working beyond the powers assigned to the people of the constitution and combative to the constitution takeaways. hence, the constitution must abide by the rules and regulations of the country. The judicial assessment has been taken under articles 226 and 277 of the high court and Articles 32 and 136 of the constitution of India.

The various cases involving the judicial review under the Indian constitution are:?

1. R.Coelho VS State of Tamil Nadu?

In this case, judicial review was considered the most paramount part of the constitution.?

1. Shankari Prasad VS Union of India?

This case was led by the six-judge bench which stated that the basic rights mentioned in the constitution should not be amended. Thereby, in the kesavnanada Bharti case and the Golaknath case, the basic structure should not be influenced under the constitution. The authority even elaborated on the concept of the basic structure of the constitution.?

1. The Mitthu VS State of Punjab?

In this section 303 was struck down as it was about the death sentence is mandatory. Thereby, it highlighted that it shouldn’t be made compulsory and focused on article 21 of the constitution. Article 21 refers to the right to life.?

1. P.U.C.L VS U.O.I?

This judgment revolved around the concept of accepting the decisions of the court and obeying them. (Anamika, 2020)

??Judicial Review of South Africa?

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The parliament was autonomous in South Africa until 1994. This doctrine was defined by the AV Dicey. It stated that parliament under the English constitution has the right to do whatever it wanted to do and stated that no person stated can set apart the legislation. Herein, the authority the government had was boundless and the laws stated by the constitution had to be accomplished by the judiciary. Thereby, the most famous principle of “ludic est ius dicere sed not dare” was being followed which meant that the role of the judge was to state the law but not give it. Due, to the initiation of the constitutional court in South Africa, the judicial framework was established in it known as constitutional supremacy. Article 2 of the constitution of South Africa states that the constitution of the country is a republic and the laws which are stated against it are considered void. The judiciary is considered as the important factor for the well-built legal base in South Africa. Thereby, it talks about the framework from the civil system and stratagem from the common law system. (Michael, 2019)

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?Conclusion?

?Analyzing the aforementioned judicial reviews about India and South Africa talks about the differences between the both. As we saw, the constitution of India talks about the separation of powers and south Africa mentions the constitution supremacy. Therefore, it discusses how the judicial review is important for the country and what role does it play concerning the constitution. The supreme authority has the opportunity of the people and fundamental rights are stated. Thereby, we get to know that the rule of legislation is not used by the supreme court ever against the national interests and the supreme authority of the country keeps the national interests and well-being of the people in their mind.?

References

Anamika. (2020, December 14). Ipleaders. Retrieved from Ipleaders: https://blog.ipleaders.in/judicial-review-administrative-rulemaking-powers-india-usa-comparative-study/

Michael. (2019, October 31). Law commons. Retrieved from Law commons: https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=2074&context=luclj

Picess, A. R. (2018, January 21). Law Brigade. Retrieved from Law Brigade: https://thelawbrigade.com/wp-content/uploads/2019/05/Aroma-Ramam-8.pdf

Qwerty9729. (2009, April 13). Legal service. Retrieved from Legal Service: https://www.legalserviceindia.com/legal/article-746-judicial-review-in-india.html