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‘Judicial review is not an appeal’ – Bivek Chaudhary

In human Laxman Aroskar v. Union of India, the role of judicial review has been determined to ensure that the rule of law is observed. Judicial review is a process under which legislative and executive actions are subject to review by the judiciary. The notion of judicial review means the revision of the decree or sentence of an inferior court by a supreme court. Judicial review in this case means that courts of law have the power of testing the validity of legislative as well as other governmental actions with reference to the provisions of the constitutions. The function of the court is to seek that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law. In Nepal, there are three tires of courts, i.e. Supreme Court, High Court, and District Court. Supreme Court is regarded as the supreme head of the court or the court of records. A judicial review is an appeal that is conducted by a court to overturn a decision on an item under appeal. If a decision is appealed to a judicial review, it is within the court’s jurisdiction to overturn it.

In the context of Nepal, Supreme Court has authority and power for judicial review. Part 11, Article 133(4) of the Constitution of Nepal 2072 states “Subject to this constitution, the supreme court shall as provided for in the federal law, have the power to originally try and settle cases, hear appeals, test judgments referred for confirmation, revise cases, hear petitions or review its judgment or final orders. As Seeking in India, Both Supreme Court and High Court have power and authority for the judicial review. The Decisions of a tribunal in India are subject to the supervisory powers of the high court under Article 227 of the Indian Constitution, and of appellate powers of the Apex Court under Article 136. The Constitution of India Article 226 and 227 provides authority to the high court for judicial review. Likewise, the power of judicial review vested in the High Court and the Supreme Court of India in course of time developed another facet known as “public interest’. A new branch of proceedings known as ‘social action litigation’ or ‘public interest litigation’ was evolved to render complete justice to the aforementioned classes of persons.

Judicial Review is a basic feature of the constitution and there are no unreviewable discretions in the constitutional dispensation. There are there organs of government, i.e. legislative, executive, and judiciary. When it comes to exercising the power of judicial review of legislation, the scope of such power has to be kept in mind and the power is to exercise within the limited sphere assigned to the judiciary to undertake the judicial review. Even if the statutory order is passed in a good faith and with the best intention to further the purpose of the legislation which confers the powers, since the Authority has to act following and within the limits of that legislation, its order can also be challenged if it’s beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations, it can well be said that the authority did not honestly form its opinion or that in forming it did not apply its mind to the relevant facts.

“Judicial review as the words imply is not an appeal from a decision, but a review of how the decision was made.”

The Marbury vs. Madison, the very first example of judicial review by a modern judiciary, chief justice john marshal said “It is emphatically the province and the duty of the judicial department to say what the law is. Likewise, In Relevant to Nepal, some cases such as in which role judicial review is played, In Bisheshwor Prasad Koirala v. Government of Nepal Kathmandu Magistrate, (nkp, 123(2016)), the Supreme Court for the first time examined the constitutionality of the sawal of the Kathmandu magistrate with the constitution and then declared the Kathmandu magistrates saw unconstitutional on the ground of the violation of the independence of the judiciary. Giving its verdict, Supreme Court held, “Supreme court has to declare any Act contrary with the constitutional Provision as unconstitutional” whereby establishing duty as well as the right of the judiciary of judicial review. Similarly, In Rabi Raj Bhandari v. Honorable Prime Minister Man Mohan Adhikari, the court determined the scope of Judicial Review of any act of his majesty as that act which is not performed exclusively at his discretion as provided by the constitution.

In conclusion, the purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches a matter which it is authorized by law to decide for itself a conclusion that is correct in the eyes of the court. The power of judicial review is confined to the decision-making process. The power of judicial review conferred on the constitutional court or the tribunal is not that of an appellate authority. The main difference between a judicial review and other appeal types is that a judicial review is conducted outside the organization and is therefore outside the control of the organization. The decision-making is not handled as part of the appeals process. The only information that is entered for a judicial review is the fact that it is taking place. When a decision is reached for judicial review, it is recorded on the system by an organization user. A judicial review can be requested by a participant or by the organization and is initiated by filing a petition with the courts. The court petition for all judicial review appeals is attached to the judicial review case.

(Author: Bivek Chaudhary 
A law student studying 5years BALLB in Nepal Law Campus)

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Anish Kumar Tiwari
Anish Kumar Tiwari
Anish Kumar Tiwari is the Editor-in-Chief and SEO Expert at Law Scholars Nepal who is continuously publishing law related information and legal knowledge with the aim of increasing legal awareness in Nepal.
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