Make a distinction between judicial review and judicial power. Explain the scope of judicial review with reference to the cases arising under the Xth Schedule of the Constitution.
- Core Legal Answer & Context: Judicial Power is a broader concept encompassing all the powers and functions exercised by the judiciary. It includes the authority to interpret laws, adjudicate disputes, enforce rights, issue writs, and administer justice. It is the inherent authority vested in courts to perform their judicial functions.
Judicial Review is a specific, yet crucial, facet of judicial power. It is the power of the Supreme Court and High Courts to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. If any law or order is found to be in violation of the provisions of the Constitution, the courts can declare it unconstitutional and void. It acts as a check on the legislative and executive branches, ensuring they operate within their constitutional limits.
Scope of Judicial Review under the Xth Schedule: The Xth Schedule, added by the 52nd Amendment Act, 1985, deals with the disqualification of Members of Parliament and State Legislatures on grounds of defection (Anti-defection Law). Initially, Paragraph 7 of the Xth Schedule sought to bar judicial review of any decision made by the Speaker/Chairman regarding disqualification under the Schedule, making their decision final.
- Relevant Statutes and Sections:
- Articles 13, 32, 226, 227 of the Indian Constitution: These articles empower the Supreme Court and High Courts with the power of judicial review.
- Xth Schedule of the Indian Constitution: Contains provisions for disqualification on the ground of defection.
- Paragraph 6 of the Xth Schedule: Vests the power to decide on disqualification in the Speaker/Chairman.
- Paragraph 7 of the Xth Schedule: (Originally) Barred the jurisdiction of courts in matters related to disqualification under the Schedule.
- Important Landmark Cases:
- Kihoto Hollohan v. Zachillhu (1992): This is the seminal case that defined the scope of judicial review concerning the Xth Schedule. The Supreme Court upheld the constitutional validity of the Xth Schedule but struck down Paragraph 7, which excluded judicial review. The Court held that judicial review is a basic feature of the Constitution and cannot be taken away by a constitutional amendment. It clarified that the Speaker's decision under the Xth Schedule is subject to judicial review, but only on limited grounds such as perversity, mala fides, violation of constitutional mandates, or non-compliance with rules of natural justice, and not on the merits of the decision itself. This means that while the courts cannot substitute their judgment for that of the Speaker, they can ensure that the Speaker's decision-making process is fair and constitutional.
- Clear Conclusion: While judicial power is the overarching authority of the courts, judicial review is a specific mechanism to ensure constitutional supremacy. The Kihoto Hollohan judgment significantly expanded the scope of judicial review by bringing the Speaker's decisions under the Xth Schedule within its ambit, thereby reinforcing the judiciary's role as the ultimate interpreter and guardian of the Constitution, even in matters concerning legislative internal proceedings.