Wednesday, July 28, 2021
HomeArticlesPOLICY-LAW-LEGISLATIVE PROCEDURE-JUDICIAL REVIEW

POLICY-LAW-LEGISLATIVE PROCEDURE-JUDICIAL REVIEW

Policy

Policy is a set of ideas or a plan of what to do in particular situations that has been agreed to officially by a group of people,  business organization, a government, or a political party for example agricultural policy, competition policy, admission policy etc..

Policy – Judicial Review

Can the policy be subject to Judicial Review. The answer is “yes” on the grounds of equality. It falls to the category of judicial review meaning to say if the right to equality is infringed in a policy decision, the count can interfere in such decisions, but, such matter are not liable to review merely because there were better alternatives.

A policy is not subject to judicial review unless it is demonstrably

  1. Arbitrary
  2. Capricious
  3. Irrational
  4. Discriminatory
  5. Violative of constitutional provisions
  6. Or any statue

However, in tax/economic matters, it is said that every legislation, particularly in economic matters is essentially empiric and it is based on experimental or what may be called trail and error method and therefore, it cannot provide for all possible situations or anticipate all possible abuse. There may be crudites and inequities in complicated experimental economic legislation, but on that account alone it cannot be structured down as invalid.

Law

Meaning of the word law depends on the context in which the word is used. Law is a system of rules created and enforced through government institution to regulate behaviour. It is the science and art of justice. Formal law can be made by

  1. Government
  2. Entities of government
  3. Courts through binding judgements as precedent
  4. Primary individual legally binding contracts
  5. Religion/customary law influencing secular matters

The law in fact is a reflection of moral and unchangeable laws of nature. Law is in fact a set of rules in which the individuals are expected to behave in a society. Such laws are backed by sanctions and threats of punishment from a sovereign.

Law – Judicial Review

All laws made by parliament are subject to judicial review by the constitutional Courts except those placed in schedule IX of the constitution of India.

At present there are 284 such central and state laws which are beyond the Judicial review.

The IX schedule became part of the Constitution in 1951.

It was created by new article 31B which, along with article 31A was brought in to protect laws related to agrarian reform and to the abolition of zamindari system. Article 31B has retrospective effect.

However, the Supreme court held that the laws placed under schedule IX are subject to judicial review if they violate fundamental rights or the basic structure of the Constitution. Most of the laws placed in schedule IX related to agrarian reforms and reservation.

Legislative Procedure

Legislation means the exercise of the power and fuctions of making rules that have the force of authority by virtue of their promulgation by an official organ of a state or other organization.

A law or set of laws made by government

Legislative Procedure – Judicial Review

Legislature can amend the constitution to bring within itself any subject to legislation.

No doubt Indian Parliament drives its powers to legislate from the Constitution and it has no arbitrary jurisdiction to over circle the Constitution, but the fact remains that it has the power to amend the Constitution, although while not compromising with the basic structure of the constitution.

Now come to the privileges enjoyed by the parliament and its members. These can be classified into three categories:

Privileged claimed and recognized by Courts
  • Freedom of speech in parliament
  • Freedom from arrest in civil cases
  • Exemption from being summoned as a witness
  • Right to settle its proceedings
  • Right to restrain publication by others

These are internal procedures and are not subject to judicial review 

However judicial review is available

  1. If the proceedings are held in defiance of the mandatory provisions of the Constitution
  2. The house exercises the powers which the Parliament does not possess
  3. The house has right to define its own privileges is subject to judicial review
  4. If there is a question as to jurisdiction to define privileges, such question shall be subject to Judicial review
  5. Whether particular houses possess a privilege is a question which is subject to judicial review.

But no proceeding for defamation lies for any publication made under the authority of either house of parliament

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