Judicial Review - Research Paper Example

The increasing relevance and growth of judicial review is as a result of the growth of the administrative functions and powers in the modern world and can be understood from a historical perspective. The period before 19th century was characterized by a societal mode of life known as laissez faire which connotes total individual freedom, contractual freedom, a free individual enterprise which diminish the government control and functions. In a laissez faire society the role of the state is negative and is limited to defending the country especially from external aggression.

The advent of industrial revolution in the 19th century manifested that the bargaining power of individuals was not equal and that un-controlled bargaining power would lead to exploitation of poor majority by the rich minority. This makes it important for the State’s intervention in individual matters. The state thus took more positive and active role in matters which affected the citizens directly. This lead to the birth of the Social Welfare State, whose advent led to a phenomenal increase in scope and content of the functions and powers of the State.

The state from then on, through the machinery of state corporations and executive arm, took over a very large portion of what was matters of private individuals and started to profoundly control what remained in the private domain. (Jain, 3) an administrative law author summarised the functions of the state in a social welfare system as follows: “…….the state today pervades every aspect of human life; it runs buses, railways and postal services; it undertakes socio-economic planning, improves slums, plans urban and rural life, looks after health, societal morals and education of the people, generates electricity, works mines and operates key and important industries; acts as an active instrument of socio-economic policy, regulates individual life and freedom to a large extent; benefits its citizens and imposes social control and regulation over private enterprise.

” A state has three organs which are the judiciary, the executive and the legislature which perform independent and different functions. Increase in the state functions would obviously mean increase in work for all state organs. But this is not the case as the largest range of the powers and functions of the state has been taken by the executive arm which is also known as the administrative arm of the state. In the modern times the executive arm performs functions which are ex facie and which belong to the other organs of the state.

The executive performs the legislative power by making a plethora of rules, orders, by-laws and regulations. This is designated as subordinate or delegated legislation. The executive also performs adjudicative powers over disputes through the commissions, tribunals and many other quasi- judicial bodies which have diversified jurisdiction, structure, powers and procedures. They make binding decisions like those of ordinary courts. The reason for subsidiary legislation is that the legislature lacks time and expertise to handle the mass all the legislative detail required to govern a state. The