Judicial review, the power of courts to examine and invalidate laws and executive actions that violate a constitution, stands as a fundamental pillar of modern constitutional democracies. It ensures that the government operates within the bounds of the supreme law of the land, safeguarding individual rights and maintaining the balance of power.

Historical Evolution:
The roots of judicial review can be traced back to the early 17th century in England, with Sir Edward Coke's pronouncements in Dr. Bonham's Case (1610), where he suggested that courts could strike down laws contrary to "common right and reason." However, the doctrine's formal establishment occurred in the United States with the landmark Supreme Court case Marbury v. Madison (1803).

Chief Justice John Marshall, in Marbury, articulated the principle that it is "emphatically the province and duty of the judicial department to say what the law is." He reasoned that since the Constitution is the supreme law, any conflicting legislative act must be declared void. This decision established the precedent for judicial review in the United States, which has since been adopted by many other countries.

In India, judicial review is deeply embedded in the constitutional framework. The Constitution itself, through Articles 13, 32, 131-136, and 226, explicitly grants the Supreme Court and High Courts the power to review legislative and executive actions. The Indian Supreme Court has played a pivotal role in shaping the doctrine, using it to protect fundamental rights, uphold federalism, and ensure the rule of law.

• Theoretical Foundations:
• Constitutional Supremacy: The constitution is considered the highest law, and all other laws must conform to it. Judicial review ensures this supremacy.
• Protection of Fundamental Rights: Courts act as guardians of individual rights, safeguarding them against encroachment by the government.
• Separation of Powers: Judicial review maintains the balance of power between the branches of government, preventing any one branch from becoming too dominant.
• Rule of Law: It ensures that the government operates according to established legal principles, rather than arbitrary power.

Judicial Review: A Cornerstone of Constitutionalism

Judicial review, the power of courts to examine and invalidate laws and executive actions that violate a constitution, stands as a fundamental pillar of modern constitutional democracies. It ensures that the government operates within the bounds of the supreme law of the land, safeguarding individual rights and maintaining the balance of power.

Historical Evolution:
The roots of judicial review can be traced back to the early 17th century in England, with Sir Edward Coke's pronouncements in Dr. Bonham's Case (1610), where he suggested that courts could strike down laws contrary to "common right and reason." However, the doctrine's formal establishment occurred in the United States with the landmark Supreme Court case Marbury v. Madison (1803).

Chief Justice John Marshall, in Marbury, articulated the principle that it is "emphatically the province and duty of the judicial department to say what the law is." He reasoned that since the Constitution is the supreme law, any conflicting legislative act must be declared void. This decision established the precedent for judicial review in the United States, which has since been adopted by many other countries.

In India, judicial review is deeply embedded in the constitutional framework. The Constitution itself, through Articles 13, 32, 131-136, and 226, explicitly grants the Supreme Court and High Courts the power to review legislative and executive actions. The Indian Supreme Court has played a pivotal role in shaping the doctrine, using it to protect fundamental rights, uphold federalism, and ensure the rule of law.

• Theoretical Foundations:
  • Constitutional Supremacy: The constitution is considered the highest law, and all other laws must conform to it. Judicial review ensures this supremacy.
  • Protection of Fundamental Rights: Courts act as guardians of individual rights, safeguarding them against encroachment by the government.
  • Separation of Powers: Judicial review maintains the balance of power between the branches of government, preventing any one branch from becoming too dominant.
  • Rule of Law: It ensures that the government operates according to established legal principles, rather than arbitrary power.
     
• Practical Applications:
  • Constitutional Review of Legislation: Courts examine laws passed by legislatures to ensure they comply with the constitution.
  • Review of Executive Actions: Courts scrutinize actions taken by the executive branch to ensure they are lawful and constitutional.
  • Review of Administrative Actions: Courts oversee the decisions of administrative agencies to ensure they are fair, reasonable, and within their legal powers.
  • Interpretation of the Constitution: Courts interpret the meaning of constitutional provisions, shaping their application in specific cases.
     
• Contemporary Debates and Challenges:
  • Counter-Majoritarian Difficulty: Critics argue that unelected judges overruling the will of elected representatives undermines democratic principles.
  • Judicial Activism vs. Judicial Restraint: This debate centers on the appropriate role of judges. Activists advocate for a more proactive role in shaping policy, while restrainists emphasize deference to the legislature.
  • Originalism vs. Living Constitutionalism: These competing theories of constitutional interpretation influence how judges approach judicial review. Originalists seek to interpret the constitution according to its original meaning, while living constitutionalists believe it should be interpreted in light of evolving social values.
  • The Scope of Judicial Review: There are frequent debates about the extent of what the courts should have the power to review.
  • Checks on Judicial Power: Concerns about judicial overreach have led to discussions about potential checks on judicial power, such as legislative overrides or constitutional amendments.
  • Implementation of Judicial Decisions: Even when courts strike down laws, ensuring effective implementation of their decisions can be challenging.
  • The Politicization of the Judiciary: In many nations, the process of appointing judges has become highly politicized, which can undermine public trust in the impartiality of the courts.
  • Access to Justice: The cost and complexity of legal proceedings can limit access to judicial review, particularly for marginalized groups.

 

Judicial Review in India

In India, judicial review has played a crucial role in shaping the country's legal and political landscape. The Supreme Court has used its power to:

• Protect fundamental rights
• Uphold secularism
• Ensure the accountability of the government

Landmark cases like Kesavananda Bharati v. State of Kerala (1973) established the "basic structure" doctrine, which limits the power of Parliament to amend the Constitution. However, judicial review in India also faces challenges, including:

• Concerns about judicial overreach
• Delays in the judicial process
• The politicization of judicial appointments

The balance between judicial activism and restraint remains a subject of ongoing debate.

Comparative Perspectives

Judicial review operates differently in various countries:

• In Germany, there are dedicated constitutional courts.
• In the United Kingdom, judicial review evolved through the Human Rights Act 1998.

Comparing these different models provides valuable insights into the strengths and weaknesses of judicial review.

The Future of Judicial Review

As societies evolve and new challenges emerge, judicial review will continue to play a vital role in:

• Upholding constitutionalism and the rule of law
• Adapting to technological advancements
• Addressing social inequalities
• Maintaining public trust

Its continued evolution depends on balancing competing values and adapting to changing circumstances.

Forms of Judicial Review

• Constitutional Review of Legislation: Courts examine laws passed by legislatures to ensure they comply with the constitution.
• Review of Executive Actions: Courts scrutinize actions taken by the executive branch to ensure they are lawful and constitutional.
• Review of Administrative Actions: Courts oversee the decisions of administrative agencies to ensure they are fair, reasonable, and within their legal powers.
• Interpretation of the Constitution: Courts interpret the meaning of constitutional provisions, shaping their application in specific cases.

Contemporary Debates and Challenges

Despite its importance, judicial review is subject to ongoing debates and challenges:

• Counter-Majoritarian Difficulty: Critics argue that unelected judges overruling elected representatives undermines democracy.
• Judicial Activism vs. Judicial Restraint: Activists advocate for a proactive role in shaping policy, while restrainists emphasize deference to the legislature.
• Originalism vs. Living Constitutionalism: Originalists interpret the constitution based on its original meaning, whereas living constitutionalists adapt it to evolving social values.
• The Scope of Judicial Review: Ongoing debates question the extent of court powers.
• Checks on Judicial Power: Concerns about judicial overreach have led to discussions on legislative overrides or constitutional amendments.
• Implementation of Judicial Decisions: Ensuring compliance with court rulings can be challenging.
• The Politicization of the Judiciary: The appointment process of judges has become highly politicized in many nations, affecting public trust.
• Access to Justice: The cost and complexity of legal proceedings limit judicial review accessibility, especially for marginalized groups.

Judicial Review in India:

In India, judicial review has played a crucial role in shaping the country's legal and political landscape. The Supreme Court has used its power to protect fundamental rights, uphold secularism, and ensure the accountability of the government. Landmark cases like Kesavananda Bharati v. State of Kerala (1973) established the "basic structure" doctrine, which limits the power of Parliament to amend the Constitution.

However, judicial review in India also faces challenges. Concerns about judicial overreach, delays in the judicial process, and the politicization of judicial appointments persist. The balance between judicial activism and restraint remains a subject of ongoing debate.

Comparative Perspectives:

Judicial review operates differently in various countries. In some countries, like Germany, there are dedicated constitutional courts. In others, like the United Kingdom, the doctrine has evolved more recently through the Human Rights Act 1998. Comparing these different models can provide valuable insights into the strengths and weaknesses of judicial review.

The Future of Judicial Review:
As societies evolve and new challenges emerge, judicial review will continue to play a vital role in upholding constitutionalism and the rule of law. Adapting to technological advancements, addressing social inequalities, and maintaining public trust will be crucial for ensuring the effectiveness of judicial review in the future.

In conclusion, judicial review is a complex and multifaceted doctrine with a rich history and ongoing relevance. While it faces challenges and criticisms, it remains an essential tool for safeguarding constitutional principles and protecting individual rights. Its continued evolution will depend on the ability to ba
lance competing values and adapt to changing circumstances.

Written By:

• Tharun Prabhakar Padala,
• Damodaram Sanjivayya - National Law University.