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Judicial Review in Bangladesh
Collected by BdLawSource.com
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CONTENTS
Title Page
Abstract 3
Chapter 1 Introduction
Chapter 1.1 !udicial "e#iew $
Chapter % !udicial "e#iew in &ther Countries '
Chapter 3 The Importance o( !udicial "e#iew in Bangladesh 1%
Chapter The Constitution and Change %)
Chapter $ !udicial "e#iew in Bangladesh %*
Conclusion 3
Bibliography
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ABSTRACT
!udicial re#iew is the power o( the court to re#iew laws and determine whether or not
they are unconstitutional. The !udiciary Act o( 1*'+ stated that all citi,ens o( the
-nited States are .separate but e/ual01 re(erring to segregation.
A -ni(orm system is e2ercised by the 3igh Court o( its super#isory 4urisdiction o#er
in(erior courts1 Tribunals and public bodies and persons. -pon application to the 3igh
Court (or 4udicial re#iew the remedies a#ailable are orders o( mandamus1 prohibition
or certiorari a declaration or in4unction an in4unction restraining a person acting in a
public o((ice when not entitled to do so.
The remedy o( 4udicial re#iew is concerned not with the decision o( parliament but
re#iew is sought with the decision ma5ing process by the Supreme Court.
Chapter 1
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Introduction
Law pre#ails e#erywhere and e#erything6 it is all7embracing and permits e#ery
sphere o( li(e and society. 8nowledge o( law1 both pro(essional and general1
there(ore1 is indispensable (or human de#elopment. Law which is created based on
social demand and human need is an imperati#e category1 and ought to rule.
9#erywhere it ought to be the rule o( law1 law as a body o( norms regulating human
and institutional beha#iour and their interrelationships. :eneral perception o( the
concept o( rule o( law brings to one;s imagination two elegant categories o(
personalities (or e2ample 4udge and lawyer1 who (orm the core o( 4ustice system.
<hen law is abused1 or law is misapplied1 or law is not properly made1 it is the tas5
o( the 4ustice system that means the 4udiciary to inter#ene to ensure that law
pre#ails1 and only law rules.
Bangladesh is unitary independent so#ereign1 "epublic to be 5nown as the peoples
"epublic o( Bangladesh and by nature1 man is rational as well as animal being and
they li#e together in the society depending upon each other to (ul(il their needs (or
sur#i#al. As Social beings1 men e2press their nature by creating and recreating an
organi,ation which guides and control their beha#iour in many ways.
!udicial re#iew o( administrati#e action is perhaps the most important de#elopment in
the (ield o( public law in the second hal( o( this century. This is the most potent
weapon in the hands o( the 4udiciary (or the maintenance o( the rule o( law.
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1
C.K. Takwani, Lectures on Administrative Law; p.237
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Chapter 1.1
Judicial Review
:enerally !udicial "e#iew means the power o( the courts to re#iew the legislati#e and
e2ecuti#e action and determine their #alidity. Courts e2ercise such power on the basis
that powers can be #alidly e2ercised only within their true limits and a public
(unctionary is not to be allowed to transgress the limits o( his authority con(erred by
the constitution or the law.
According to Chie( !ustice !ohn =arshall >
.!udicial "e#iew is the power gi#en to Supreme Court 4ustices in which a 4udge has
the power to reason whether a law is unconstitutional or not. Chie( !ustice !ohn
=arshall initiated the Supreme Court;s right to translate the Constitution in 1')3
(ollowing the case o( =arbury #s. =adison1 in which he declared the Supreme Court
as the sole interpreters o( Constitutional law. This is one o( the sole purposes o( the
Supreme Court o( the -nited States. =any 3istorical thin5ers would (ind some
di((iculty in imagining a go#ernment set up to limit the power o( itsel(1 but others
would argue that this (orm o( go#ernment best wor5s (or the people1 and not against
them. The treatment o( the Constitution by the Supreme Court as a .li#ing0
document that is able to be translated di((erently o#er time (or the good o( the
people has as many sceptics as it does supporters.0
=achia#elli would also totally disagree with the idea o( ha#ing anyone ma5e decisions
about laws because they are morally incorrect. And1 the Supreme Court;s protection
o( the people o( the -nited States1 and its Constitution is also a necessity in running
a truly #irtuous and success(ul go#ernment that concentrates on the rights o( the
indi#idual1 rather than the people as a whole. =achia#elli (ound the most success(ul
go#ernment to be one that ruled on the basis o( .realism0 not .idealism0. <e today
see the Supreme Court as a collection o( the most .enlightened0 thin5ers o( our day.
Loc5e (elt that (or a go#ernment to be success(ul in preser#ing the rights o( the
indi#idual citi,en1 it must concentrate on protecting the .Li(e and Liberty0 o( each
citi,en. These belie(s ha#e
=olded one o( the most success(ul political states in modern 3istory. They only
belie#ed in the truth1 and 4ustice that go#ernment is supposed to protect its people
with. 3e (elt that a go#ernment should be run with the sole intention o( (orcing the
people to be obedient1 and (or the indi#idual #irtues o( the people to be a non7(actor
in any political decisions made by the ruler o( the state. Plato 5new that within any
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political State their would be corruption1 to stop the corruption Plato (elt that the
philosopher 5ings would best rule because they would not indulge themsel#es in a
corrupt society. The Constitution o( the -nited States is the ideal document in Loc5e;s
mind.
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&ne o( the earliest political philosophers Plato would (ind our present day
go#ernmental setup o( the Supreme Court to be the ideal group to deal with the
-nited States; situation. &thers thought that one sole dictator or 8ing could best run
a success(ul go#ernment. Some belie#ed that the people would best run a
go#ernment.
2
Law of writes in Bangladesh Ansar Ali Khan. P3
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A more modern philosopher such as !ohn Loc5e would (ind the Supreme Court and its
power o( !udicial "e#iew to be one o( the most important characteristics o( the -nited
States; setup o( ?emocracy. Loc5e belie#ed that all people should be treated as
e/uals1 and to not treat each other e/ually would inter(ere on an indi#idual;s right to
.sel( Preser#ation0
<hile re#iewing the #alidity o( the authority the (lowing /uestion are to be in/uired
and determined
a. has e2ceeded its power@
b. Committed an error o( law@
c. abused its power@
d. (ailed to consider all rele#ant (actors or ta5en into consideration irrele#ant
(actors@
e. reached a decision which no reasonable authority would ha#e reached@
(. (ailed to obser#e the statutory procedural re/uirements and the common law
principles o( natural 4ustice or procedural (airness@
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Chapter
Judicial review in other countries
The Supreme Court;s principle power is 4udicial re#iew the right o( the Court to
declare laws unconstitutional. This authority is not e2pressly stated in the
Constitution. The Supreme Court has e2ercised 4udicial re#iew since 1')31 when
Chie( !ustice !ohn =arshall (irst announced it in =arbury #. =adison. =arshall
deduced the necessity o( such a power (rom the purpose and e2istence o( the
Constitution. 3e reasoned that 4udicial re#iew was necessary to implement the
Constitution;s substanti#e and procedural limits on the go#ernment. !udicial re#iew is
both a power(ul and contro#ersial tool because it allows the Supreme Court to ha#e
the ultimate word on what the Constitution means. These permits the Court 4ustices
are appointed rather than electedAto o#errule decisions already made by Congress
and legislatures throughout the country.
!udicial "e#iew and !. =arshal>
As the (ourth Supreme Court B1')3C Chie( 4ustice o( the -nited States o( America1
!ohn =arshall created a legacy that has endured nearly two hundred years. <hile
writing the ma4ority opinion (or the Supreme Court case o( =arbury #. =adison in
1')31 he single7handedly changed the course o( our 4udicial system. 3e did this by
granting the 4udicial branch the power to determine a law unconstitutional1 otherwise
5nown as 4udicial re#iew. The /uestion at hand1 then1 is to e2plore how this one
ruling on a seemingly insigni(icant case became a worthy landmar5 on the timeline o(
-nited States history. !ust as any decision1 at any speci(ic point in time1 =arshall did
not intentionally choose to eradicate the norm and clear a new path (or the (uture.
3e was neither attempting to establish 4udicial supremacy nor rewrite the law.
De#ertheless1 this seemingly ingenious decision was clearly groundbrea5ing in that it
was the (irst instance on which the Supreme Court o((icially established its power
o#er legislation1 and has since been #iewed as the basis (or 4udicial authority.
3owe#er1 !ohn =arshall;s ruling in the case o( =arbury #. =adison was undoubtedly
the only logical choice1 and was based on three important (actors>
EThe 4udicial branch had neither the power o( (orce1 which belonged to the e2ecuti#e
branch1 nor the will o( the people1 which belonged to the legislati#e branch.
&ne way to e2plain a speci(ic moment in time is to relate it to other e#ents in history.
Se#eral months later1 the debate changed (rom whether or not to create this .Council
o( "e#ision10 to who should belong on it. By basing his opinion on pre#ious models o(
4udicial re#iew1 =arshall used the power(ul tool o( precedent to help (urther his
political party. !ohn =arshall created an outcome that best bene(ited his own
personal and political party;s interests1 by establishing a chec5 on the legislati#e
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branch and by en(orcing popular so#ereignty as laid out in the Constitution. 3e
belie#ed a strong central go#ernment and popular so#ereignty were two crucial
elements in the success o( a nation. !ohn =arshall did not in#ent 4udicial re#iew1 yet
cra(ted a cle#er way to declare its credibility. Both Federalists and anti7Federalists
reached an understanding that 4udicial re#iew was necessary. This pro#es that some
delegates already belie#ed the powers o( 4udicial re#iew were assumed well be(ore
!ohn =arshall was Chie( !ustice. The central argument between the delegates was
whether or not 4udges should be allowed to be participants on the council.
At the time preceding the =arbury #. =adison As a staunch Federalist1 =arshall
#iewed the Constitution as the (undamental law o( the land. The (ederal courts were
under a continued attac5 by newly appointed President !e((erson and the "epublican
Party who wished to bring the courts under the command o( the e2ecuti#e branch. I(
=arshall had not established the power o( 4udicial re#iew through this case1 he would
ha#e missed a crucial opportunity to help empower the Federalists.
=arbury #. =adison>
The =arbury #s. =adison case resulted in the most important Supreme Court
decision in history. The court;s ruling established the power o( 4udicial re#iew1
solidi(ied the Constitutional system o( chec5s and balances1 strengthened the power
o( the (ederal go#ernment1 and made the !udiciary an e/ual partner with the
Legislati#e and 92ecuti#e branches o( go#ernment. In the 9lection1 Thomas !e((erson
and his anti7(ederalist "epublican Party de(eated the incumbent !ohn Adams and the
Federalist Party. The "epublicans also in Congress In an e((ort to 5eep at least one
branch o( the go#ernment under Federalist control Congress passed the !udiciary Act
o( 1')1 in a lame7duc5 session. The bill re(ormed a 1*'+ statute and created many
new 4udgeships. Adams nominated 4udges and the Senate con(irmed them. Adams
then stayed up until long a(ter midnight on =arch31 1')1 his last (ull day in o((ice1
signing commissions that put (i(ty7nine loyal Federalists in o((ice. These were the so7
called .midnight 4udges.0 In the (inal wee5s be(ore !e((erson too5 o((ice1 !ohn
=arshall was Secretary o( State and Chie( !ustice simultaneously.
9#en with =arshall;s suppression o( this states; right o( re#iew. 9#en at the time that
the case was decided1 it was insigni(icant because =arbury;s term as 4ustice would
ha#e the time the Court was ready to consider it. Four o( the uncommissioned
4ustices o( the peace1 including <illiam =arbury1 sought a writ o( mandamus1 or order
directing =adison to deli#er the commissions. The idea came up as the nulli(ication
contro#ersy o( Calhoun and ultimately was a cause o( the Ci#il <ar. De2t1 Congress1
using its authority under the Constitution to ma5e .regulations0 (or the (ederal court1
shut down the Supreme Court (or a year. I( he denied the re/uest1 the Supreme
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Court would be le(t a .helpless #ictim o( presidential or congressional whim0. As these
(acts demonstrate1 =arbury had incalculable e((ects on the Constitution and
go#ernment. =arshall had (ore#er changed the tas5 o( the Supreme Court. The
system o( separation o( powers implied that each branch1 .as =adison remar5ed1
had; the necessary constitutional means1 and personal moti#es1 to resist the
encroachments o( the others. &utraged by Adams; appointments1 !e((erson ordered
=adison not to deli#er the commissions.

The (irst would ha#e based 4udicial re#iew on the supremacy in the Constitution.
!udicial re#iew completed the system o( chec5s and balances that was a #ital
component o( the Constitution. 3owe#er1 this did not pre#ent =arshall (rom using the
case to suit his purposes. 3owe#er1 =arshall reali,ed that such an argument would
also ser#e to emphasi,e the other branches; chec5s on the Court and1 more
importantly1 would ha#e made all branches legitimate interpreters o( the Constitution.
Judicial review in English !aw"
!udicial re#iew is a procedure in 9nglish Administrati#e Law by which 9nglish courts
super#ise public authorities in the e2ercise o( their powers.
A person who (eels that a decision o( a public authority1 such as a go#ernment
minister1 the local council or a statutory tribunal has #iolated his or her rights1 may
apply to the 3igh Court (or 4udicial re#iew o( the decision and ha#e it set aside
B/uashedC and possibly obtain damages. A court may also ma5e mandatory orders or
in4unctions to compel the authority to do its duty or to stop it (rom acting illegally.
-nli5e the -nited States and some other 4urisdictions1 9nglish law does not 5now
4udicial re#iew o( primary legislation Blaws passed by ParliamentC1 sa#e in a (ew cases
where primary legislation is contrary to 9- law and the 9uropean Con#ention o(
3uman "ights. A person wronged by an Act o( Parliament there(ore cannot apply (or
4udicial re#iew unless this is the case.
Constitutional position
The 9nglish constitutional theory as e2pounded by A.G. ?icey does not recogni,e a
separate system o( administrati#e courts that would re#iew the decisions o( public
bodies Bas in France1 :ermany and many other 9uropean countriesC.
Instead1 it is considered that the go#ernment should be sub4ect to the 4urisdiction o(
ordinary Common Law courts.
At the same time1 the doctrine o( Parliamentary so#ereignty does not allow (or the
4udicial re#iew o( primary legislation BActs o( ParliamentC. This limits 4udicial re#iew in
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9nglish law to the decisions o( public bodies and secondary BdelegatedC legislation1
against which ordinary common law remedies as well as special .prerogati#e orders0
are a#ailable in certain circumstances.
The constitutional theory o( 4udicial re#iew has long been dominated by the doctrine
o( ultra vires1 under which a decision o( a public authority can only be set aside i( it
e2ceeds the powers granted to it by Parliament. The role o( the courts was seen as
en(orcing the .will o( Parliament0 in accordance with the doctrine o( Parliamentary
so#ereignty. 3owe#er1 the doctrine has been widely interpreted to include errors o(
law and o( (act and the courts ha#e also declared the decisions ta5en under the "oyal
Prerogati#e to be amenable to 4udicial re#iew. There(ore it seems that today the
constitutional position o( 4udicial re#iew is dictated by the need to pre#ent the abuse
o( power by the e2ecuti#e as well as to protect indi#idual rights.
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Chapter #
The i$portance o% &udicial review in Bangladesh
&pportunity (or the public to participate>
!udicial re#iew creates a right (or indi#iduals to approach the court (or relie( o#er a
breach o( an Act. It ma5es it possible to challenge a determination o( the consent
authority. !udicial re#iew o( en#ironmental matters there(ore allows the public an
opportunity to participate in the en#ironmental planning and de#elopment process.
&pportunities a#ailable (or relie(>
In Bangladesh there is currently no en#ironmental legislation1 which gi#es the
opportunity to a person to bring proceedings (or remedy or restrain the breach o( an
Act. Dotwithstanding1 a person may see5 4udicial re#iew under the Ci#il Procedure
Code 1+)' or Criminal Procedure Code 1'+'1 though there has been little re(erence
made to the opportunities a#ailable (or relie( under these Codes.
'rocedural re(uire$ents"
-nder the Ci#il Procedure "ules a claim BapplicationC (or 4udicial re#iew will only be
admissible i( permission Blea#eC (or 4udicial re#iew is obtained (rom the 3igh Court1
which has super#isory 4urisdiction o#er public authorities and tribunals. Permission
may be re(used i( one o( the (ollowing conditions is not satis(ied>
The application must be made promptly and in any e#ent within three months (rom
the date when the grie#ance arose. Dote that legislation can impose shorter time
limits while a court may hold that an application made in less than three months may
still be not prompt enough.
The applicant must ha#e su((icient interest in a matter to which the application
relates. This re/uirement is 5nown as the re/uirement o( standing.
The application must be concerned with a public law matter1 i.e. the action must be
based on some rule o( public law1 not purely tort or contract.
3owe#er1 the Court will not necessarily re(use permission i( one o( the abo#e
conditions is in doubt. It may1 in its discretion1 to e2amine all the circumstances o(
the case and see i( the substanti#e grounds (or 4udicial re#iew are serious enough.
?elay or lac5 o( su((icient interest can also lead to the court re(using to grant a
remedy a(ter it had considered the case on the merits.
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Amenability to 4udicial re#iew>
The decision complained o( must ha#e been ta5en by a public body1 i.e. a body
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The !ail% &tar, page' ()ne2**+
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established by statute or otherwise e2ercising a public (unction. In " # Panel (or
Ta5eo#ers and =ergers 92 p ?ata(in H1+'*I 1 JB '1$1 the Court o( Appeal held that a
pri#ately established panel was amenable to 4udicial re#iew because it in (act
operated as an integral part o( a go#ernmental (ramewor5 (or regulating =ergers and
Ta5eo#er1 while those a((ected had no choice but to submit to its 4urisdiction.
Ouster clauses"
Sometimes the legislator may want to e2clude the powers o( the court to re#iew
administrati#e decision1 ma5ing them E(inal;1 Ebinding; and not apellable. 3owe#er1 the
courts ha#e consistently held that none but the clearest words can e2clude 4udicial
re#iew. <hen the :o#ernment wanted to introduce a new Asylum and Immigration
Act containing such clear words1 members o( the 4udiciary protested to the e2tent o(
saying that they will not accept e#en such an e2clusionC
1'1
The :o#ernment withdrew
the proposal.
The courts howe#er do uphold shorter time limits on applications (or 4udicial re#iew.
The decision is ta5en by the wrong person Bunlaw(ul sub7delegationC
I( the law empowers a particular authority1 e.g. a minister1 to ta5e certain decisions1
the =inister cannot sub delegate this power to another authority1 e.g. an e2ecuti#e
o((icer or a committee. This di((ers (rom a routine 4ob not in#ol#ing much discretion
being done by ci#il ser#ants in the =inister;s name1 which is not considered
delegation.
The powers used (or the purpose di((erent (rom the one en#isaged by the law under
which they were granted
A good e2ample o( this is the case o( " # Secretary o( State (or Foreign A((airs. The
<orld ?e#elopment =o#ement.S 1 o( the &#erseas ?e#elopment and Cooperation Act
1+') empowered the Secretary o( State (or Foreign A((airs to assign (unds (or
de#elopment aid. The Secretary assigned the (unds (or a pro4ect to construct a power
station on the Pergau "i#er in =alaysia. The 3ouse o( Lords held that this was not the
purpose en#isaged by the enabling statute and the =inister there(ore e2ceeded his
powers. A similar principle e2ists in many continental legal systems and is 5nown by
the French name o( denouncement dupou#oir.
9rror o( law or error o( (act>
The court will /uash a decision where the authority has misunderstood a legal term
or incorrectly e#aluated a (act that is essential (or deciding whether or not it has
certain powers. 3owe#er1 where a term to be e#aluated by the authority so broad
and #ague that reasonable people may reasonably disagree about its meaning1 it is
generally (or the authority to e#aluate its meaning. So1 in " # 3illingdon Borough
Council e2 Parte Pulho(er H1+'KI AC '1 the local authority had to pro#ide homeless
persons with accommodation. The applicants were a married couple1 who li#ed with
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her two children in one room and applied to the local authority (or aid. The local
authority re(used aid because it considered that the Pulho(ers were not homeless and
the 3ouse o( Lords upheld this decision because whether the applicants had
accommodation was a /uestion o( (act (or the authority to determine.
Ignoring rele#ant considerations or ta5ing irrele#ant considerations into account
An e2ample o( this can be seen in <heeler # Leicester City Council1 where the City
Council banned a rugby club (rom using its ground because three o( the club;s
members went on a tour in South A(rica at the time o( apartheid. In " # Somerset
County Council # Fewings the local authority decided to ban stag hunting on the
grounds o( it being immoral. In Pad(ield # =inistry o( Agriculture1 Fisheries and Food1
the =inister re(used to mount an in/uiry into a certain matter because he was a(raid
o( bad publicity. In all these cases1 the authorities ha#e based their decisions on
considerations1 which were not rele#ant to their decision ma5ing power and ha#e
acted unreasonably Bthis may also be /uali(ied as ha#ing used their powers (or an
improper purposeC.
)ettering discretion"
An authority will be acting unreasonably were it re(uses to hear applications or ta5es
certain decisions without ta5ing indi#idual circumstances into account by re(erence to
a certain policy. <hen an authority was gi#en discretion1 it cannot bind itsel( as to the
way in which this discretion will be e2ercised either by internal policies or obligations
to others. 9#en though an authority may establish internal guidelines1 it should be
prepared to ma5e e2ceptions on the basis o( e#ery indi#idual case.
Irrationalit*"
-nder Lord ?iploc5;s classi(ication1 a decision is irrational i( it is .so outrageous in its
de(iance o( logic or o( accepted moral standards that no sensible person who had
applied his mind to the /uestion could ha#e arri#ed at it.0 This standard is also 5nown
as <ednesbury unreasonableness1 a(ter the decision in Associated Pro#incial Picture
3ouses Ltd # <ednesbury Corporation1 where it was (irst imposed.
-nli5e illegality and procedural impropriety1 the courts under this head loo5 at the
merits o( the decision1 rather than at the procedure by which it was arri#ed at or the
legal basis on which it was (ounded. The /uestion to as5 is whether the decision
.ma5es sense0. In many circumstances listed under .illegality01 the decision may also
be considered irrational.
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'roportionalit*"
Proportionality is a re/uirement that a decision is proportionate to the aim that it
see5s to achie#e. 9.g. an order to (orbid a protest march on the grounds o( public
sa(ety should not be made i( there is an alternati#e way o( protecting public sa(ety1
e.g. by assigning an alternati#e route (or the march. Proportionality e2ists as a
ground (or setting aside administrati#e decisions in most continental legal systems
and is recognised in 9ngland in cases where issues o( 9C law and 9C3" rights are
in#ol#ed. 3owe#er1 it is not as yet a separate ground o( 4udicial re#iew1 although Lord
?iploc5 has alluded to the possibility o( it being recognised as such in the (uture. At
present1 lac5 o( proportionality may be used as an argument (or a decision being
irrational.
'rocedural i$propriet*"
A decision su((ers (rom procedural impropriety i( in the process o( its ma5ing the
procedures prescribed by statute ha#e not been (ollowed or i( the Erules o( natural
4ustice; ha#e not been adhered to.
Statutor* procedures"
An Act o( Parliament may sub4ect the ma5ing o( a certain decision to a procedure1
such as the holding o( a public hearing or in/uiry1 or a consultation with an e2ternal
ad#iser. Some decisions may be sub4ect to appro#al by a higher body. Courts
distinguish between .mandatory0 re/uirements and .directory0 re/uirements. A
breach o( mandatory procedural re/uirements will lead to a decision being set aside
(or procedural impropriety.
Breach o% Natural Justice"
The rules o( natural 4ustice re/uire that the decision ma5er approaches the decision
ma5ing process with E(airness;. <hat is (air in relation to a particular case may di((er.
As pointed out by Lord Steyn in Lloyd # =c=ahon H1+'*I AC K%$ .the rules o( natural
4ustice are not engra#ed on tablets o( stone.0 the below are some e2amples o( what
the rules o( natural 4ustice re/uire>
The rule against +ias"
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The (irst basic rule o( natural 4ustice is that nobody may be a 4udge in his own case.
Any person that ma5es a 4udicial decision 7 and this includes e.g. a decision o( a
public authority on a re/uest (or a license 7 must not ha#e any personal interest in
the outcome o( the decision. I( such interest is present1 the decision ma5er must be
dis/uali(ied e#en i( no actual bias can be shown1 i.e. it is not demonstrated that the
interest has in(luenced the decision. The test as to whether the decision should be set
aside is whether .a (air7minded and in(ormed obser#er would conclude that there was
a real possibility Ho( biasI0.
The right to a %air hearing"
<hether or not a person was gi#en a (air hearing o( his case will depend on the
circumstances and the type o( the decision to be made. The minimum re/uirement is
that the person gets the chance to present his case. I( the applicant has certain
legitimate e2pectations1 (or e2ample to ha#e his licence renewed1 the rules o( natural
4ustice may also re/uire that he is gi#en an oral hearing and that his re/uest may not
be re4ected without gi#ing reasons.<here the decision is 4udicial in nature1 (or
e2ample a dismissal o( an o((icial in punishment (or improper conduct. the rules o(
natural 4ustice re/uire a hearing and the person /uestion must 5now the case against
him and be able to e2amine and ob4ect to the e#idence.
,ut* to give reason"
-nli5e many other legal systems1 9nglish administrati#e law does not recognise a
general duty to gi#e reasons (or a decision o( a public authority. A duty to gi#e
reasons may be imposed by statute. <here it is not1 Common Law may imply such a
duty and the courts do so particularly with regard to 4udicial and /uasi74udicial
decisions.
The remedies traditionally a#ailable in 4udicial re#iew are the so called prerogati#e
orders> certiorari1 mandamus and prohibition. In the language o( the new Ci#il
Procedure "ules1 these orders are now 5nown respecti#ely as the /uashing order1 the
mandatory order and the prohibiting order. A claimant Hor 4udicial re#iew may also
see5 an in4unction1 a declaration andLor damages.
A declaration declaring a decision #oid is e/ui#alent to the /uashing order1 and is
usually used to declare a statute or a regulation incompatible with a higher norm o(
law1 such as the 9uropean Con#ention o( 3uman "ights or 9C law.
The remedies o( declaration1 in4unction and damages are discretionary remedies.
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Scope and co$ponents o% &udicial review"
Broadly spea5ing1 4udicial re#iew in India comprises o( three aspects> 4udicial re#iew
o( legislati#e action1 4udicial re#iew o( 4udicial decisions and 4udicial re#iew o(
administrati#e action. The 4udges o( the superior courts ha#e been entrusted with the
tas5 o( upholding the Constitution and to this end1 ha#e been con(erred the power to
interpret it. It is they who ha#e to ensure that the balance o( power en#isaged by the
Constitution is maintained and that the legislature and the e2ecuti#e do not1 in the
discharge o( (unctions1 transgress constitutional limitations. Thus1 4udicial re#iew is a
highly comple2 and de#eloping sub4ect. It has its roots long bac5 and its scope and
e2tent #aries (rom case to case. It is considered to be the basic (eature o( the
Constitution. The court in its e2ercise o( its power o( 4udicial re#iew would ,ealously
guard the human rights1 (undamental rights and the citi,ens; rights o( li(e and liberty
as also many non7statutory powers o( go#ernmental bodies as regards their control
o#er property and assets o( #arious 5inds1 which could be e2pended on building1
hospitals1 roads and the li5e1 or o#erseas aid1 or compensating #ictims o( crime.
!i$its o% Judicial Review"
!udicial re#iew has certain inherent limitations. It is suited more (or ad4udication o(
disputes than (or per(orming administrati#e (unctions. It is (or the e2ecuti#e to
administer the law and the (unction o( the 4udiciary is to ensure that the :o#ernment
carries out its duty in accordance with the pro#isions o( the Constitution.
K
It is true
that the courts ha#e wide powers o( 4udicial re#iew o( Constitutional and statutory
pro#isions. These powers1 howe#er1 must be e2ercised with great caution and sel(7
control. The courts should not step out o( the limits o( their legitimate powers o(
4udicial re#iew. The parameters o( 4udicial re#iew o( Constitutional pro#isions and
statutory pro#isions are totally di((erent. In !.P.Bansal # State o( "a4asthan the
Supreme Court obser#ed> .It is true that this court in interpreting the Constitution
en4oys a (reedom which is not a#ailable in interpreting a statute. It endangers
continued public interest in the impartiality o( the 4udiciary1 which is essential to the
continuance o( rule o( law1 i( 4udges1 under guise o( interpretation1 pro#ide their own
pre(erred amendments to statutes which e2perience o( their operation has shown to
ha#e had conse/uences that members o( the court be(ore whom the matters come
consider to be in4urious to public interest. <here the words are clear1 there is no
obscurity1 there is no ambiguity and the intention o( the legislature is clearly
con#eyed1 there is no scope (or the court to inno#ate or to ta5e upon itsel( the tas5 o(
amending or altering the statutory pro#isions. In that situation the 4udge should not
proclaim that they are playing the role o( lawma5er merely (or an e2hibition o(
4udicial #alour. They ha#e to remember that there is a line1 though thin1 which
+
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rd
Edition P.23'
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separates ad4udication (rom legislation. That line should not be crossed or erased.
This can be #ouchsa(ed by an alert recognition o( the necessity not to cross it and
instincti#e1 as well as trained reluctance to do so0.
I( case the court (orgets to appreciate this 4udicial wisdom1 it would undermine the
constitutional mandate and will disturb the e/uilibrium between the three so#ereign
organs o( the Constitution. In State B:o#t o( DCT o( ?elhiC # Prem "a4 the Supreme
Court too5 a serious note o( this disturbing e2ercise when the 3igh Court commuted
the sentence by transgressing its limits. The court obser#ed>
.The power o( commutation e2clusi#ely #ests with the appropriate go#ernment. The
appropriate go#ernment means the Central go#ernment in cases where the sentence
or order relates to a matter to which the e2ecuti#e power o( the -nion e2tends1 and
the state go#ernment in other cases. Thus1 the order o( the high Court is set
aside0.Similarly1 in Syed LA. 3a/shbandi # State o( !M8 the Supreme Court obser#es>
.!udicial re#iew is permissible only to the e2tent o( (inding whether the process in
reaching the decision has been obser#ed correctly and not the decision itsel(1 as such.
Critical or independent analysis or appraisal o( the materials by the court e2ercising
powers o( 4udicial re#iew unli5e the case o( an appellate court would neither be
permissible nor conduci#e to the interests o( either the o((icer concerned or the
system and institutions. :rie#ances must be su((iciently substantiated to ha#e (irm or
concrete basis on properly established (acts and (urther pro#ed to be well 4usti(ied in
law1 (or being countenanced by the court in e2ercise o( its powers o( 4udicial re#iew.
-nless the e2ercise o( power is shown to #iolate any other pro#ision o( the
Constitution o( India or any o( the statutory rules1 the same cannot be challenged by
ma5ing it a 4usti(iable issue be(ore the court0.
The courts are (urther re/uired not to inter(ere in policy matters and political
/uestions unless it is absolutely essential to do so. 9#en then also the courts can
inter(ere on selecti#e grounds only. In P.-.C.L # -.&.I the Supreme Court obser#ed>
.This court cannot go into and e2amine the need o( Pre#ention o( Terrorism Act. It is
a matter o( policy. &nce legislation is passed1 the go#ernment has an obligation to
e2ercise all a#ailable options to pre#ent terrorism within the bounds o( the
Constitution. =oreo#er1 mere possibility o( abuse cannot be counted as a ground (or
denying the #esting o( powers or (or declaring a statute unconstitutional0.
Similarly1 in -.&.I. # International Trading Co the Supreme Court obser#ed>
.Article 1 o( the Constitution applies also to matters o( go#ernment policy and i( the
policy or any action o( the go#ernment1 e#en in contractual matters1 (ails to satis(y
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the test o( reasonableness1 it would be unconstitutional. <hile the discretion to
change the policy in e2ercise o( the e2ecuti#e power1 when not trammelled by any
statute or rule is wide enough1 Ewhat is imperati#e and implicit in terms o( Article 1
is that a change in policy must be made (airly and should not gi#e the impression
that it was so done arbitrarily or by any other ulterior criteria. The wide sweep o(
Article 1 and the re/uirement o( e#ery state action /uali(ying (or its #alidity on this
touchstone1 irrespecti#e o( the (ield o( acti#ity o( the state1 is an accepted tenet. The
basic re/uirement o( Article 1 is (airness in action by the state1 and non7
arbitrariness in essence and substance is the heartbeat o( (air play. 9#ery state action
must be in(ormed by reason and it (ollows that an act unin(ormed by reason is per se
arbitrary0.
Similarly1 where a political /uestion is in#ol#ed1 the courts normally should not
inter(ere. It is also e/ually settled law that the court should not shrin5 its duty (rom
per(orming its (unctions merely because it has political Thus1 merely because the
/uestion has a political comple2ion that by itsel( is no ground why the court should
shrin5 (rom per(orming its duty under the constitution i( it raises an issue o(
constitutional determination. 9#ery constitutional /uestion concerns the allocation
and e2ercise o( go#ernmental power and no constitutional /uestion can1 there(ore1
(ail to be political. As large as a /uestion arises whether an authority under the
Constitution has acted within the limits o( its power or e2ceeded it1 it can certainly be
decided by the court. Indeed it would be its constitutional obligation to do so.
Although =alaysia inherited the political system o( British India based on the
<estminster system which made no pro#ision (or 4udicial re#iew1 the Federal
Constitution o( =alaysia instituted a system based on that o( the India which was in
turn in(luenced by other constitutions including that o( the -nited States. !udges are
empowered to declare laws or e2ecuti#e actions ultra #ires i( they clashed with the
Constitution andLor the parent legislation. 3owe#er1 this power was curbed a(ter the
1+'' =alaysian constitutional crisis by then Prime =inister =ahathir bin =ohammad
through amendments to the Federal Constitution. A particularly signi(icant
amendment was the remo#al o( the 4udicial power and sub4ecting the 4udiciary to
such 4urisdiction and powers as may be con(erred by or under (ederal lawC

The merits
o( detentions made under the Internal Security Act are also not sub4ect to 4udicial
re#iew1 but the procedures are.
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Chapter -
The Constitution and Change
The constitution is a (le2ible document that can meet changing conditions o#er time.
Two basic constitutional principles that allow the go#ernment to adapt to changes in
the -nited States are the most important power o( the (ederal courts is the right to
4udicial re#iew.
This enables the courts to hear cases in#ol#ing the application and interpretation o(
law. Laws that are 4udged to be against the Constitution are said to be
unconstitutional and #oid. !udicial re#iew bac5s up the statement that the
Constitution is the .supreme law o( the land0. All (ederal and most state courts may
e2ercise 4udicial re#iew6 howe#er1 the (inal decision in interpreting the Constitution is
the Supreme Court.
3e said that the elastic clause meant that Congress could only pass .necessary0 laws.
The constitution did not gi#e the Supreme Court such powers1 there(ore1 ma5ing the
!udiciary Act unconstitutional. A Dational ban5 would help carry out the powers to lay
ta2es1 borrow money1 and regulate commerce. =arbury bought a lawsuit as5ing (or a
court order that would (orce the new Secretary o( State1 !ames =adison1 to gi#e him
the commission. It allows the go#ernment to stretch its powers. The Supreme Court
came up with a decision6 =arbury did ha#e a right to his 4ob pay1 howe#er1 the
Supreme Court could not issue =adison to deli#er it. Some o( the o((icial commissions
(or the new appointments were handwritten on Adam;s last night as president1 and
had not been seen when the new president1 Thomas !e((erson1 was sworn in on
=arch 1 1')1. This #iew o( the elastic clause is 5nown as .loose construction0.
Article 11 Section '1 Clause 1' o( the Constitution states that Congress can ma5e all
laws .necessary and proper0 (or carrying out the tas5s listed in the constitution. Giew
strengthened the 4udiciary branch abo#e the other two branches o( go#ernment. 3e
then signed the bill to establish the (irst national ban5 o( the -nited States.
3e disagreed with the idea o( a national ban5 to limit the go#ernment;s powers.
!e((erson declared that Adam;s .midnight 4udges0 would not be sent their
commissions.
The !udicial Branch in "egard to Separation o( Powers the ?octrine o( Separation o(
powers is that political power should be di#ided among se#eral bodies as a precaution
against tyranny. The ideal is opposed the absolute so#ereignty o( the Crown1
Parliament1 or any other body. The blueprint (or -nited States; separation o( powers
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is laid out in the -.S. Constitution and e2panded upon in the Federalist Papers. The
chec5s and balances o( the -S go#ernment in#ol#e the hori,ontal separation o(
powers among the e2ecuti#e Bthe PresidencyC1 the legislature Bthe two houses o(
Congress themsel#es arranged to chec5 and balance one anotherC1 and the 4udiciary
Bthe (ederal courtsC. There is also a #ertical separation between the (ederal
go#ernment and the states. ?e(enders o( separation o( powers insist that it is needed
against tyranny1 including the tyranny. o( the ma4ority. Its opponents argue that
so#ereignty must lie somewhere1 and that it is better1 and arguably more democratic6
to ensure that it always lies within the same body. The -nited States wanted to
instate a go#ernment structured in such a way that each branch was separate but
e/ual.
The Constitution also re/uires the President to gi#e In(ormation1 (rom time to time6
to Congress on the State o( the -nion. .Chec5s and balances and separation o(
powers are concerned with chec5ing both minority and ma4ority .(actions0 that spring
(rom man;s sel(7interest. It permits the court to de(ine whate#er powers o( sel(7
de(ence the other branches ha#e against the 4udiciary. In order constrain both
ma4ority as well as minority1 the (ounders (a#oured a less e((icient go#ernment
chec5ed and balanced against it because it seemed sa(er than the ris5 o( tyranny in a
more e((icient system. =ore applicable to this discussion1 howe#er1 are the powers in
that the Constitution lays out concerning the ma5ing o( speci(ic types o( laws.
Following the listed powers o( the legislati#e branch1 Article II tac5les the area
concerning the e2ecuti#e branch1 or the Presidency. Article I addresses the powers o(
the legislati#e branch that the 4udicial branch has o(ten (ound itsel( in the grey area
o( so#ereignty. =ore rele#ant howe#er1 are the (ollowing segments BSec. The
theoretical reasoning behind the need (or separation o( powers is laid out by Publius
B!e((erson and =adisonC primarily in Federalist Papers N + A$1. The President
becomes1 as he was intended1 a ma4or player in (oreign a((airs. This power to
interpret the law becomes the determining (actor in the most power(ul branch o(
go#ernment. .The prime purpose was to protect #ested interests by such curbs upon
the masses as chec5s and balances1 especially 4udicial re#iew1 and central
go#ernment in which only the 3ouse o( "epresentati#es were to be popularly elected.
There(ore1 o#ertime the Supreme Court has ac/uired1 in a way1 the 4urisdiction to
regulate the separation o( powers as they see (it.
:o#ernment1 one o( the most important (actors in our li(e1 is #ery complicated. A(ter
I ha#e studied the American go#ernment1 I (ind out that the American go#ernment is
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the most per(ect and democratic go#ernment in the world. The go#ernment is doing
their 4obs in the best interest o( people1 to protect peoples rights. The most
important concept I ha#e learned about the American go#ernment1 which guarantee
the go#ernment get too much power o#er people1 is the concept o( separation o(
powers.
The ?octrine o( Separation o( powers is that political power should be di#ided among
se#eral bodies as a precaution against tyranny. The ideal is opposed the absolute
so#ereignty o( the Crown1 Parliament1 or any other body. The blueprint (or -nited
States separation o( powers is laid out in the -.S. Constitution and e2panded upon in
the Federalist Papers. The chec5s and balances o( the -.S. go#ernment in#ol#e the
#ertical separation o( powers among the e2ecuti#e Bthe PresidencyC1 the legislature
Bthe two houses o( CongressC1 and the 4udiciary Bthe (ederal courtsC. There is also a
hori,ontal separation between the (ederal go#ernment and the states.
These powers include a number o( #arying areas. Constitution reali,ed that power o(
go#ernment coming (rom people.
Finally1 Article III deals with the 4udicial powers o( the -nited States.
This was the argument that !ames =adison addressed in The Federalist Papers.
There(ore1 the primary duty o( go#ernment is to protect people;s rights. This is a
chec5 that is put on the e2ecuti#e branch by the legislati#e branch. In addition1 the
Constitution was an antidote (or the e#ils o( democracy. In order constrain both
ma4orities as well as minority1 the (ounders (a#oured a less e((icient go#ernment
chec5ed and balanced against itsel( because it seemed sa(er than the ris5 o( tyranny
in a more e((icient system. It states that the 4udicial powers shall be #ested in the
Supreme Court and in such in(erior courts as Congress may establish.
Chec5s and balances and separation o( powers are concerned with chec5ing both
minority and ma4ority (actions that spring (rom man sel(7interest.Chie( !ustice !ohn
=arshall in =arbury #s. =adison. The prime purpose was to protect #ested interests
by such curbs upon the masses as chec5s and balances1 especially 4udicial re#iew1
and central go#ernment in which only the 3ouse o( "epresentati#es was to be
popularly elected.
The (ounders were haunted by the monarchical system and this idea o( chec5s and
balances was designed to cure the e#ils o( that (orm o( go#ernment. This becomes a
chec5 o( Congress o( the 4udicial branch.
The -nited States; democratic system includes certain (eatures that are intended to
protect against the abuse o( the power by the go#ernment and public o((icials. Some
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protecti#e (eatures include> 4udicial re#iew1 impeachment process1 (reedom o(
e2pression1 protection against unreasonable searches1 and e/ual protection under
the law1 and the rights o( the accused.
&ne important protecti#e (eature is 4udicial re#iew. !udicial re#iew is the power o( the
courts to re#iew laws and determine whether or not they are unconstitutional. The
!udiciary Act o( 1*'+ stated that all citi,ens o( the -nited States are .separate but
e/ual01 re(erring to segregation. Blac5s were supposed to be treated e/ually and
(airly1 without discrimination 4ust as whites were1 but they were to ha#e separate
(acilities1 schools1 etc. In the case o( =arbury #. =adison1 on !ohn Juincy Adam;s last
night in o((ice1 he appointed '% new Federalist !ustices. These .midnight 4udges0 as
they were called represented a threat to incoming President Thomas !erreson1 a
?emocrat7"epublican.
In this way the Court was able to rule a law unconstitutional and there(ore created
the important precedent o( 4udicial re#iew1 another signi(icant protecti#e (eature is
the impeachment process. Another imperati#e protecti#e (eature is the rights o( the
accused. In order (or this to occur1 the 3ouse must #ote on the bill1 and the Senate
would conduct the trial. Congress may remo#e the President i( the chie( e2ecuti#e is
(ound guilty o( misusing his power earliest interpretation o( the law (or the ne2t %)
years1 a (ear that ended up coming to (ruition. Schenc5 claimed his (irst amendment
rights were #iolated. Because o( the !udiciary Act o( 1')11 =arbury appealed directly
to the Supreme Court as5ing (or a .writ o( mandamus0 or an order to act. the -nites
States1 indi#iduals were not aware o( their rights when they were being ta5en under
arrest. Schenc51a member o( the Socialist Party1 opposed the war and printed and
distributed pamphlets urging citi,ens to oppose the dra(t which he li5ened to sla#ery.
People belie#ed that a con#iction would damage the separation o( powers. Andrew
!ohnson tried to inter(ere with the reconstructed plans1 and Congress passed the
Tenure o( &((ice Act. The court ruled again Schenc5 saying that the 9spionage Act did
not #iolate the (irst amendment and rnment may place reasonable limitations on
(reedom the courts to re#iew laws and determine whether or not they are
unconstitutional. The !udiciary Act o( 1*'+ stated that all citi,ens o( the -nited States
are .separate but e/ual01 re(erring to segregation. Blac5s were supposed to be
treated e/ually and (airly1 without discrimination 4ust as whites were1 but they were
to ha#e separate (acilities1 schools1 etc. In the case
o( =arbury #. =adison1 on !ohn Juincy Adam;s last night in o((ice1 he appointed '%
new Federalist !ustices. These .midnight 4udges0 as they were called represented a
threat to incoming President Thomas !erreson1 a ?emocrat7"epublican.
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In this way the Court was able to rule a law unconstitutional and there(ore created
the important precedent o( 4udicial re#iew1 another signi(icant protecti#e (eature is
the impeachment process. Another imperati#e protecti#e (eature is the rights o( the
accused. In order (or this to occur1 the 3ouse must #ote on the bill1 and the Senate
would conduct the trial. Congress may remo#e the President i( the chie( e2ecuti#e is
(ound guilty o( misusing his power earliest interpretation o( the law (or the ne2t %)
years1 a (ear that ended up coming to (ruition. Schenc5 claimed his (irst amendment
rights were #iolated. Because o( the !udiciary Act o( 1')11 =arbury appealed directly
to the Supreme Court as5ing (or a .writ o( mandamus0 or an order to act the -nites
States1 indi#iduals were not aware o( their rights when they were being ta5en under
arrest. Schenc51 a member o( the Socialist Party1 opposed the war and printed and
distributed pamphlets urging citi,ens to oppose the dra(t which he li5ened to sla#ery.
People belie#ed that a con#iction would damage the separation o( powers. Andrew
!ohnson tried to inter(ere with the "econstruction plans1 and Congress passed the
Tenure o( &((ice Act. The court ruled against Schenc5 saying that the 9spionage Act
did not #iolate the (irst amendment and that in times o( war the go#ernment may
place reasonable limitations on (reedom o( speech. !e((erson ordered his Secretary o(
State1 !ohn =adison1 not to deli#er the o((icial documents granting =arbury his
position. Charles Schenc5 was arrested (or #iolating the 9spionage Act1 passed by
Congress in 1+1.I( (ound guilty6 he would ha#e been remo#ed (rom o((ice.
Constitution"
A Constitution is necessary to 5eep order among the Dation by holding the Country
together. A constitution can be de(ined as a group o( (undamental laws setting out
the structures1 principles and process o( go#ernment. The Framers o( the Constitution
got together at the Second Constitutional Con#ention in order to de(ine the
relationships between the States and the Federal go#ernment1 among and between
the 3 branches o( go#ernment and the citi,ens o( the -nited States o( America.
The Constitution is built around si2 basic principles> popular so#ereignty1 limited
go#ernment1 separation o( powers1 chec5s and balances1 4udicial re#iew and
(ederalism. In popular so#ereignty1 all political power resides in the people. They are
the only source (or any and all go#ernmental power.
All Federal Courts and most State courts hold the power o( the !udicial "e#iew. This
was put into e((ect in order to build a stronger1 more e((ecti#e Dational :o#ernment
while helping the e2isting States and the idea o( a local sel(7go#ernment. The
92ecuti#e branch is made o( the President who is able to appoint Supreme Court
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4ustices and other (ederal 4udges1 is able to #eto legislation1 can call special sessions
and recommend legislation to appeal to the people. :o#ernment can go#ern only
with the consent o( the go#erned. The !udicial branch may declare acts o( Congress
to be Constitutional and are able to interpret laws. The Legislati#e branch is made o(
Congress who can create laws1 appropriates (unds to carry out laws and programs
and can create lower courts. The 92ecuti#e branch carries out or en(orces the laws.
Federalism means the di#ision o( power between a central go#ernment and se#eral
regional go#ernments.
The current structure o( the Constitution is composed o( three branches. The principle
o( limited go#ernment holds that no go#ernment is all7power(ul1 that a go#ernment
may do only those things that the people ha#e gi#en it the power to do. The actual
rati(ication did not occur until 1*''. A representati#e democracy gi#es people
(reedom to elect o((icials they want to represent them.
.overn$ent"
:o#ernment is de(ined as the indi#iduals1 institutions1 and processes that ma5e the
rules (or society and possess the power to en(orce them. Politics is the pursuit and
e2ercise o( power. ?emocracy is de(ined rule by the people. Power is the possession
o( control o#er others. These terms are o#erlapped and intertwine1 e#en i( their
meanings are not the same. For e2ample1 the notion between go#ernment and
politics is that people engage in politics to become elected1 but in (act1 those who
go#ern are constantly ma5ing political decisions. &ur society is the institution in
which democracy is used to elect go#ernment o((icials to ma5e rules by e2ercising
politics to possess power o#er the people. The relationship o( go#ernment1 politics1
democracy1 and power are interrelated in our society.
The go#ernment uses politics to e2ercise their power by establishing new laws1
programs and re(orm. The go#ernment then uses its power to en(orce these new
laws1 programs and re(orm. 9#en though the go#ernment has been established to
ma5e rules and uses politics to e2ercise its power1 the ultimate power o( go#ernment
and politics is democracy. ?emocracy allows the people to ha#e in(luence or control
o( the go#ernment by &utputs o( a political system are the binding decisions it ma5es
such as laws1 regulations1 or 4udicial decisions. For e2ample1 the go#ernor is held
responsible by the public (or leadership and the actions o( state agencies o( the
o#erall state6 howe#er1 he or she has limited direct control o#er the ma4or policy
ma5ing o((ices1 boards1 and commissions. Also1 a democratic go#ernment carries with
it the concept o( ma4ority rule1 which e#eryone is (ree to #ote6 but normally whoe#er
recei#es the most #ote;s wins the election and represents all the people1 including
those who #oted (or the losing candidate. The bac5ing o( the go#ernment strengthens
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and balances the go#ernment allowing it to wor5 (or the people in pro#iding laws and
re(orm and protection (or its citi,ens. The Constitution o( the -nited States di#ided
the go#ernment into three branches legislati#e1 e2ecuti#e1 and 4udicial. The (ramers
o( the Constitution 5new that the Constitution might ha#e to change6 there(ore1 they
pro#ided amendments to re#ise the Constitution to meet current conditions.
Sometimes decisions made by the go#ernment bene(it one segment o( society at the
e2pense o( another. The three branches are e/ual and independent o( one another.
The -nited States is too large (or e#ery citi,en to participate in the decisions o(
go#ernment6 there(ore1 America is a representati#e democracy. 3owe#er1 a
representati#e democracy is similar to direct democracy because the elected o((icials
must represent the needs o( the people or they will lose their trust. The (ramers o(
the Constitution thought this would pre#ent any single branch (rom becoming too
power(ul.
9aston;s political system consists o( three ma4or parts inputs1 outputs and (eedbac5.
The members o( Congress then #ote to submit proposed changes to the #oters1 also
the legislature sets a date at the election (or the public to #ote on the amendment.
Chapter -
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Judicial review in Bangladesh"
Article 1)$ o( the Constitution o( the People;s "epublic o( Bangladesh pro#ides that
sub4ect to the pro#isions o( an Act o( Parliament and any rules made by it1 the
Appellate ?i#ision may re#iew its own 4udgment or order.
*
<hen the court e2ercise
the law o( the :o#ernment not his wor5 then the /uestion arise o( 4udicial re#iew.
The principle ground when and by what the 4udicial re#iew may e2ercise Aby
(ollowing points.
B1C -ltra #ires
B%C Abuse o( discretionary power
B3C Proportionality.
BC Legitimate e2pectation.
B$C -nreasonable e2ercise o( power.
BKC 9stoppels
B*C Illegality.
a. Datural 4ustice
b. "ight to reason
c. "ule against bias
d. Fairness.
e. !urisdiction.
B+C !usti(iability.
B9C Interpretation.
7
,ah-)d)l .sla-, Constitution Law of Bangladesh,
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Primary and strict #iew> !udicial re#iew o( law made by the legislature1 the 4udiciary
has to power to e2amine the constitutionally o( laws made by the legislati#e.
Broader and liberal #iew>
B1C!udicial re#iew o( made by the legislature1
B%C!udicial en(orcement o( (undamental right.
B3CThe 4udicial re#iews o( administrati#e action are goes under the pro#isions o(
constitution and also the 4udicial re#iew o( administrati#e action are goes
under the pro#ision o( stationary law.
BC!udicial re#iew also delegated legislation.
In the sense o( constitutional supremacy> Pertinent cannot ma5e any law to a#oid the
constitution. It the legislati#e passed such law than the Supreme Court may #oid
these types o( law. The concept o( 4udicial re#iew are (irst comes (rom -.S.A. and the
case was =arbiry GS. =edison. The -S Constitution does not say that it the supreme
law o( land and not does this constitution con(ers on the Supreme Court power to
declare a law ultra #ires.
!udicial "e#iew in the sense o( parliamentary supremacy>
B1C!udicial re#iew o( administrati#e actions under pro#ision o( statutory bus.
B%C!udicial re#iew o( delegated legislation.
In the sense o( parliamentary supremacy only the court obser#ed that weather
the law is in consist with present law or not.
But in the 5ind o( constitutional Supremacy e#ery action o( law can be challenge.
Far,and Ali #s. <est Pa5istan6 %% ?L" B1+*)C %)3.
The power o( 4udicial re#iew o( superior courts is a matter o( constitutional
con(ormant in our country and it cannot be ta5en away or abridged by ordinary
legislation.
Anwar 3ossain Chowdhury #s. the State6 1+'+ BL? BSpecial IssueC 1
!udicial "e#iew is a basic (eature o( the Constitution and as such cannot be ta5en
away o( control o#er by go#ernment o( the constitution.0
'
/
Law of writes in Bangladesh 0% ,d. Ansar Ali Khan P7$
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Conclusion"
!udicial re#iew is not the only means o( constraining the ruling authorities in a
democratic go#ernment1 and it is almost certainly not the most e((ecti#e means.
9lections1 the de(ining (eature o( modern democracy1 probably deser#e that title1 and
mi2ed go#ernment1 with its associated chec5s and balances1 probably ran5s ne2t.
-nli5e these other means1 moreo#er1 4udicial re#iew is based on a rationale that runs
counter to our leading moral argument (or granting public o((icials the authority to
control our li#es. To these general limitations can be added a more immediate1 but
certainly not insigni(icant1 concern as the Supreme Court and lower (ederal courts
ha#e been (illed by a President who has now lost the nation;s con(idence and support.
-nder these circumstances1 it is natural (or many scholars to /uestion the desirability
o( 4udicial re#iew and see5 methods to a#oid or circum#ent its conse/uences.
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Bi+liograph*"
Boo/s"
Ansar Ali 8han6 Law of writes in Bangladesh
C.8. Ta5wani6 Lectures on Administrative Law
th
9dition7%))3 B?ha5a7Shams
PublicationsC
=ahmudul Islam6 Constitutional Law of Bangladesh6 %
nd
9dition7%))1 B?ha5a7=ollic5
Brother;sC
'aper"
.The ?aily Star01 %*
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April1 %))*
.The ?aily !ugantor01 %'
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April1 %))*
.The ?aily Prothom Alo01 %K
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August1 %))$.
0e+site"
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http>LLwww.studycirclebangladesh.in(oLadminLpublicationL%))*)11KOphoto.pd(
http>LLwww.thedailystar.netLlawL%))$L1)L)3Linde2.htm
http>LLwww.lawcommissionbangladesh.orgLreportsL$$.pd(
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