Basic Concept of the Doctrine of Judicial Review:
The doctrine of Judicial review is basically the power of the judiciary to
decide on the constitutional validity of the acts of the other wings of the
government (the executive and the legislative). The objective is to regulate any
such acts which may contravene the constitution. For instance, if any act of the
law making bodies is such that it negates the provisions given in the
constitution, it is important that it should be made null and void. In order to
do so an organ is required to have the force or power to articulate such acts as
This is where the importance of the aforementioned doctrine comes into
play. Thus, when the law making bodies are acting in contradiction to the
supreme law, the judiciary can intervene and decide on the constitutional
validity of such an act.
Justice Khanna, in the fundamental rights case or Kesvananda Bharti v State of
, spoke about the importance of judicial review in today's time. He added
that judicial review has become an important part of our constitution.
Furthermore, it was said that a force has been vested in the High Courts and the
Supreme Court to decide about the constitutionality of the provisions in
different statutes. On the off chance that the provisions of any statutes are
observed to be voilative of any of the articles of the constitution which is the
standard for the legitimacy of all laws, the High Court and the Supreme Court
have the power to strike down such provisions .
Articles relevant to Judicial Review in the Indian Constitution:
The means for judicial review is based in Article 13 of the Constitution. It
gives the power to the courts to keep the legislature under preview. The Article
gives to the judiciary the power to declare an act or law void if it is not in
consonance with Part III of the Constitution. Additionally, Article 226 and 227
of the Constitution also aid the judiciary in judicial review. If a person's
fundamental rights have been violated by any legislation, then they can move to
court under Article 226 and 227.
This power of the High Court and the Supreme
Court under Article 226 and 227 of the constitution was recognized in the case
of L. Chandra Kumar v. Union of India
. Moreover, in Indira Nehru Gandhi v. Shri Raj Narain & Anr
, the Court declared judicial review to be part of the
basic structure of the Indian Constitution.
Genesis of the doctrine of Judicial review:
The Doctrine of Judicial Review has evolved over the course of several years,
however it is important to understand the genesis of the doctrine. The concept
of Judicial Review was first originated in America, established through the case
of Marbury v. Madison
. Jurists have long argued that the this is one of the most
important cases in American Legal history.
The reason for this is that it is a
Landmark case in Constitutional law as it was in this very case that the Supreme
Court of United States of America established the doctrine of Judicial Review.
The court set out that those Federal laws that are in contradiction with the
U.S. Constitution would be held invalid, and the ability and power to decide if
federal laws are unlawful rests with the Judiciary. This is alluded to as
However, the jurisdiction of the courts to judicially review
the acts of the legislative and the executive that are in contradiction to the U.S Constitution, is not unlimited. The limitations have been set out in the
Constitution of the United States itself. The facts and the judgement of the
case are mentioned hereunder.
The facts of the case: In the year 1800, Thomas Jefferson won the Presidential
race against John Adams. President Jefferson was to come into office on 4th of
March, 1801. Before President Jefferson came into office, the active President
John Adams and Congress passed the Judiciary Act of 1801. This gave more control
and power to the President in the appointment of Judges. It was only basically
an endeavour by Adams and his party to baffle Jefferson. He utilized the Act to
choose sixteen new circuit judges and forty-two new judges for peace.
appointees were approved by the Senate, yet they could not be said to be valid
until their commissions were conveyed by the Secretary of State. William Marbury
was one of the appointees approved by the Senate, however his commission was not
delivered by the Secretary of State. Marbury filed a petition for a writ of
mandamus in the Supreme Court, in order to compel the delivery of the
Judgement of the case: The Court held that the provision of Section 13 of the
Judiciary Act of 1789, that gave the courts the power to issue writ mandamus to
an office, was in itself, in contradiction of the U.S Constitution. It was held
to be unconstitutional and void. This way, the court struck down a provision of
the Act which was in Contravention of the Constitution.
Importance of the doctrine of Judicial Review:
The importance of the doctrine of Judicial review is that it upholds the
supremacy of the Constitution. It becomes important when it comes to upholding
fundamental rights of the individuals. When a constitutionally unjust law is in
place, then the doctrine of judicial review comes into play and determines the
unconstitutionality of the law.
Hence, it becomes of exceeding relevance in
today's world life scenario as it gives power to the judiciary to determine
whether or not a law is in adherence with the Constitution. The doctrine helps
in negating the potential misuse of power by the Executive and the Legislative.
It treads on the aspect of checks and balance, an important element of democracy
which ensures that no single organ of the government misuses its power, and
maintains the balance of power between all the organs of the government.
India we do not follow 'separation of power' in the strict sense. Rather we
follow a system of checks and balance. This gives the judiciary the ability to
exercise its power in order to check on the acts of the other organs of the
In my opinion, the Doctrine of Judicial Review is extremely important. At the
same time, I believe that in order to ensure that the judiciary is not
encroaching over the other organs of the government, it is essential that the
Judges be coherent, lawful, moral and people centric. In a developing country
such as ours, judicial review has gained more importance over the course of
years. Judicial review is of utmost importance to the least common denominators
of our society, whose rights are often infringed upon without notice.
doctrine not only gives power to the judiciary to render an act unconstitutional
but the judiciary can interpret the words of the constitution, thereby removing
ambiguity. That is to say that when the judiciary is reviewing an act of other
organs of the government, it may sometimes remove ambiguity by interpreting the
intention of the framers of our constitution.
Taking into consideration the fact
that we are evolving and our nation is moving towards being more progressive,
our understanding of constitutionalism and natural justice is also changing.
Thus, Judges must also take social progress and development into account while
deciding on the constitutionality of the acts of other organs of the government.
The Judges must avoid making hasty decisions, rather the decisions must be well
reasoned and based on juristic principle. If the judiciary satisfies the
abovementioned requirements and endeavours to break new grounds, it would be a
step toward the right path. It would open a whole new dimension of Justice which
would in turn contribute to the growth and development of the Justice system of
To this day, Judicial Review remains a highly controversial topic amongst
scholars and jurists. Some believe that it gives too much power to the judiciary
and that the decisions must be left to our elected officials, while others
believe that it is necessary to uphold the supremacy of law.
- Fayaz Ahmed Bhat, Doctrine of Judicial Review in India: A Judicial
Perspective, latest news.com (Feb.1,
- Anamika Mishra, Analysing the Ambit and Meaning of Article 13: How Did the
Judiciary Interpret It?, ACADEMIKE (Jun. 4,
- Admin LB, Constitutional Law Aspects of Judicial Review and Judicial
Activism, Legal Bites (May 16, 2020), https://www.legalbites.in/judicial-review-and-judicial-activism/
- Gurram Ramachandra Rao, India: Judicial Review in India, MONDAQ (Apr. 10,