Judicial Review: Meaning, origin and Position in England

Meaning of Judicial Review

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

Origin of Judicial Review

Judicial review is originated from famous Madison vs Marbury case. Facts of this case are as follow:

Adam was President of US. He lost Presidential elections and Jefferson won the election. He was from Federalist Party and Jefferson was from anti-federalist. In USA, President has power to appoint judges. Adam was trying to think out of the way to keep federalist in power. So he started appointing federalist party members as judges night before he left the office and also got the approval from the congress.

When Jefferson took the office he was not happy. He ordered his secretary of state not to send the appointment letters to the new judges. One of the federalist was waiting for the letter but did not get the letter. Therefore, Marbury went to Supreme Court and filed the writ of Mandamus.

Court said two important things:

  1. Avoid interfering with new President Jefferson and therefore rejected the writ of Mandamus.
  2. First time court ruled legislative action as unconstitutional.

Position in England

As we know England is mother of all common law country, that is to say Judge-made law. In England, traditionally presence of mainly judge-made law. Subsequent to that there was introduction of Parliamentary Sovereignty in England because of certain agitation against the king’s power and also debate on magna carta. Over a period of time this Parliament sovereignty was diluted but not like USA and India.

Important case related to Judicial Review in England is Bonham’s Case.

Facts of Bonham’s Case:

In this case through Royal Perogatives the permission was given Royal college of Physcians to run courses for medicine and not only this but also they have to regulate the practice of medicine. So, Person who was not registered with that college was not supposed to practice, that is, first you get registered with that college and get permission from that college and only then you will be allowed to practice.

Since intake to be taken by college always remain limited and this person named Bonham. He pursued his studies from cambridge university and he joined one society which were protesting against the license to be required from the Royal college.

He was later served the notice and was not allowed to practice and also levied with fine. When notice was served on him he then went to the college to get himself enrolled but since the seats were full he could not got the admission. Next year, he again tried and again rejected.

In meantime, Parliament gave permission to the college to adjudicate disputes and also to imprisoned people for the purposes of seeking compliance.

Boham filed the application in the court of common cause that “He does not require permission from the institution but what he requires is consent from patient and if patient gives his consent then I must practice.”

Lord Cook gave decision in his favour and this famous stand-off between Lord Cook and Parliament. And it is considered as a classic case of conflict between judiciary and Parliament sovereignty. And also it is said that it was first case in which Parliament Sovereignty was controlled.

In the final hearing, Lord Cook said that he should not be penalised.

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