Considering the objections to the doctrine of ‘judicial reveiw

Considering the objections to the doctrine of judicial reveiw

Considering the objections to the doctrine of judicial reveiw

In many jurisdictions - questions have been asked about the proper understanding of judicial review' as well as its expansion. There are two principled objections offered against the very idea of judicial review' in a democratic order.

The first idea is that the judiciary being an unelected body is not accountable to the people through any institutional mechanism. In most countries judges are appointed through methods involving selection or nomination, in which ordinary citizens do not have a say. It is argued that allowing the judiciary to rule on the validity of the enactments passed by a popularly elected legislature amounts to a violation of the idea of separation of powers'. Skepticism is also voiced against judges using their personal discretion to grant remedies in areas in which they have no expertise. This critique locates the role of the judiciary as purely one of resolving disputes between parties and deferring to the prescriptions of the elected legislature while doing so. In the Common Law realm, this critique is based on the age old notion of parliamentary sovereignty'. With respect to the inherent value of a written constitution that also incorporates judicial review', it would be appropriate to refer to an observation made by Justice Aharon Barak:

"To maintain real democracy and to ensure a delicate balance between its elements -a formal constitution is preferable. To operate effectively, a constitution should enjoy normative supremacy, should not be as easily amendable as a normal statute, and should give judges the power to review the constitutionality of legislation. Without a formal constitution, there is no legal limitation on legislative supremacy, and the supremacy of human rights can exist only by the grace of the majority's self-restraint. A constitution, however, imposes legal limitations on the legislature and guarantees that human rights are protected not only by the self-restraint of the majority, but also by constitutional control over the majority. Hence, the need for a formal constitution."

However, we must also consider another nuanced objection to thedoctrine of judicial review'. It is reasoned that the substantive contents of aconstitution adopted by a country at a particular point of time reflect the willof its framers. However, it is not necessary that the intent of the framerscorresponds to the will of the majority of the population at any given time.In the Indian setting, it is often argued that the members of the ConstituentAssembly were overwhelmingly drawn from elite backgrounds and hencedid not represent popular opinions on several vital issues. Furthermore, theadoption of a constitution entails a country's precommitment to its contentsand the same become binding on future generations. Clearly theunderstanding and application of constitutional principles cannot remainstatic and hence a constitutional text also lays down a procedure for itsamendment.This power of amendment by the legislature is not unlimited and the ideaof judicial review' designates the higher judiciary as the protector of theconstitution. This scheme works smoothly as long as the demands andaspirations of the majority of the population correspond with theconstitutional prescriptions. However, scope for dissonance arises whenmajoritarian policy-choices embodied in legislative or executive acts comeinto conflict with constitutional provisions. The higher judiciary is thenrequired to scrutinize the actions of its co-equal branches of government.Some scholars have argued that fact-situations of this type involve tensions between the understanding of the words constitutionalism' and democracy'respectively. Hence, it is postulated that the provision for judicial review'gives a self-contradictory twist to the expression constitutional democracy'. In India there is considerable disenchantment with the constitutional provision which places the personal laws of religious groups beyond the scope of constitutional scrutiny. The framers preferred this position in order to protect the usages and customs of religious minorities with regard to the guarantee of freedom of religion'. However, there have been persistent majoritarian demands for a constitutional amendment of this position in order to enact a Uniform Civil Code' for regulating the private relations of citizens belonging to all religions. Even though there may be a good case for some specific changes to personal laws with the objective of ensuring gender-justice, the demands for the whole-scale rejection of personal laws threaten a majoritarian imposition. Noted scholar Samuel Isacharoff has argued that in fractured or pluralist societies it is beneficial to implement a constitutional scheme in order to restrain destructive majoritarian tendencies.

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