Structure:

• Introduction: Define the concept of judicial review.
• Body: Explain in detail the concept of judicial review. Mention the differences between ‘procedure established by law’ and the ‘due process of law’ in two separate paragraphs. Also provide innovative examples to further understand the differences.
• Conclusion: Mention that India chose ‘procedure established by law’ as it provides supremacy to Constitution. However SC has held the ‘Due process of law’ is a part of the Constitution.

Content:

Introduction:

Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. On examination, if they are found to be violative of the Constitution (ultra vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the judiciary. Consequently, they cannot be enforced by the Government.

Body:

The doctrine of judicial review originated and developed in the USA. It was propounded for the first time in the famous case of Marbury V. Madison (1803) by John Marshall, the then chief justice of the American Supreme Court.

In India, on the other hand, the Constitution itself confers the power of judicial review on the judiciary (both the Supreme Court as well as High Courts). Further, the Supreme Court has declared the power of judicial review as a basic feature of the Constitution or an element of the basic structure of the Constitution. Hence, the power of judicial review cannot be curtailed or excluded even by a constitutional amendment.

Procedure Established by Law:

It means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the correct procedure. Following this doctrine means that, a person can be deprived of his life or personal liberty according to the procedure established by law. So, if Parliament passes a law, then the life or personal liberty of a person can be taken off according to the provisions and procedures of that law. “Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity. The strict following of the procedure established by law may raise the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law-making authorities. It is to avoid this situation, SC stressed the importance of the due process of law.

Due Process of Law:

Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person but also see if the law made is fair, just and not arbitrary. If SC finds that any law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment of individual rights. Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person and laws that states enact must conform to the laws of the land like – fairness, fundamental rights, liberty etc. It also gives the judiciary to access fundamental fairness, justice, and liberty of any legislation.

Add a para on imp of due process of law art 21 etc in India- judgements, eg